THE TREATMENT OF THE CRIMINAL.
If, as now scarcely admits of question, every truly criminal act proceeds
from a person who is, temporarily or permanently, in a more or less
abnormal condition, the notion of “punishment” loses much of its
foundation. We cannot punish a monstrosity for acting according to its
monstrous nature. Moreover, who among us is perfectly normal, and what
tribunal is entitled to punish? The verdict of science is one with that of
Christianity--“Judge not.”
Some such argument as this has weighed with those thinkers and
investigators who have of late shown a disinclination to talk of
punishment, and have instead spoken of the “social reaction against
crime.” The old conception of punishment was founded on the assumption of
the normality of the criminal; he was a normal person who had chosen to
act as though he were not a normal person--a vine, as it were, that had
chosen to bring forth thorns--and it was the business of the penologist to
apportion the exact amount of retribution due to this extraordinary
offence, with little or no regard to the varying nature of the offender;
he was regarded as a constant factor. Lord Chief Justice Coleridge, not
many years ago, “when addressing,” says the Rev. J. W. Horsley, “in our
hearing, an assemblage of those who had all belonged to the criminal
class, expatiated, somewhat to their astonishment and much to their
gratification, on the iniquity of giving a severe punishment for a theft
that was petty, even though it had been preceded by many thefts and
convictions.” Obviously the punishment was directed at the offence; it was
not necessary to consider the offender at all. This conception, formulated
by theorists who delighted in abstract notions, has been shown to lead
directly into devious paths of metaphysics and ethics; it has,
consequently, been fertile of much vain disquisition. On the whole, the
results of this have not contributed to confirm the credit of the notion,
and it has seemed better--at once sounder theoretically and more
convenient practically--to dispense with this antiquated conception of
punishment. Whenever one person trespasses on the rights of another
person, or of the community to which he belongs, there is an inevitable
social reaction against the person who has committed the anti-social deed.
Society says to the individual who has violated its social feelings--Here,
my fine fellow, we are not going to stand this conduct of yours; we must
have an end of this: and it proceeds to act in accordance with the varying
measure of its wisdom. This is the basis of all legal action against the
criminal; in its crudest form it is Lynch law; in its highly developed
form it shows itself in the elaborate training bestowed on the criminal at
Elmira. Such social action is a solid and permanent fact, independent of
all metaphysical theories; and it is this we are concerned with when we
approach the question of the treatment of the criminal.
At a very early period in the development of every barbarous race there
arise two institutions for dealing with the criminal--the prison and
another, still more decisive, appearing in various forms, the cross, the
stake, the gallows, the axe.
I do not propose to give more than a few words to the question of capital
punishment, because it does not seem to be any longer a question of much
magnitude or importance. A century, even three-quarters of a century, ago
it was a different matter. In England especially capital punishment seems
to have flourished luxuriantly. A writer in Elizabeth’s reign says that in
Henry VIII.’s time seventy-two thousand thieves and vagabonds were hanged.
The statement is set down on hearsay evidence only, but is sufficient to
show that the number must have been very large. About a century ago more
criminals, it is said, were put to death in England than in any other part
of Europe; many persons still living remember the days of wholesale
hanging, and even the execution of a child of twelve for rioting. It is
less than half a century since a child of nine was condemned to death for
stealing paint, value twopence-halfpenny, and since men were hanged for
stealing sheep and postoffice letters.
There can be little doubt that capital punishment is dying out. In
Switzerland, in England, in Italy, for example, the tendency is very
clearly marked. Whether its complete extinction is altogether a matter for
rejoicing is a question concerning which there is not complete unanimity
among those whose opinions carry most weight. An impressive body of
opinion is in favour of putting instinctive criminals to death, not out of
revenge, but in the spirit in which Galen and Seneca advocated the
destruction of incorrigible offenders against social life, regarding them
as diseased members to be removed for the advantage of the whole social
body. Garofalo, the distinguished Neapolitan lawyer, is perhaps the chief
advocate of capital punishment among those who are working for legal
reform. He points out that the death penalty is the only one the criminal
really dreads, and tells of offenders who committed their crimes under the
impression that capital punishment had been abolished, and that they were
to be provided with food and shelter for the rest of their lives. On the
other hand, it has also been shown that the _éclat_ and public interest
involved in a trial for life or death serves as an incentive to the morbid
vanity of criminals. Such a penalty as burning “for example of others, as
hath been accustomed,” according to the phrasing of Henry VIII.’s statute,
has been an example often enough in another sense than the statute
intended.
On the whole, we may perhaps be well satisfied that capital
punishment--“the shameful practice,” as it has been epigrammatically
styled, “of hiring for a guinea an assassin to accomplish a sentence which
the judge would not have the courage to carry out himself”--is threatened
with extinction in civilised countries. It has the disadvantage of being
irrevocable. There would be little chance of mistake if it were only
applied to recidivists; but these are a class to whom it is rarely
applied. It is certain that mistakes have occurred when in the opinion of
the judge the evidence of guilt was absolutely convincing. It is true that
the chief cause of this extinction in democratic countries is not the
benefit of the criminal, or even the welfare of society; it is a tender
regard for the sentiments of the general public. “To punish murder by
lifelong imprisonment,” as Sir Robert Rawlinson observed, “is a far
severer fate than sudden death, but it is not so revolting.” We have to
see to it that our substitutes for the death penalty are of a humane and
rational character, and that they afford an equal protection to society.
It should never be possible to address to society the words which the
daring Duc de Montausier addressed to Louis XIV. concerning a criminal who
was finally executed after committing twenty murders: “This man has only
committed one murder, the first, and it is you who, by letting him live,
have committed the other nineteen.” But, as Benedikt well observes, to
kill the criminal is never satisfactory, because we do not kill his
accomplices, bad social conditions and defective institutions; we leave
untouched the false social sentiments that urged the unmarried girl to
kill her own child, or the rigid marriage system that made it easier for
the man to kill his wife than to leave her or to allow of her leaving him.
Moreover, it must be said that murderers, whom alone it is considered
justifiable to eliminate by death, are not usually the most degraded of
criminals or the most dangerous to society. In Russia, where capital
punishment for common-law offences was abolished more than a century ago,
murderers are condemned to hard labour for a period of years, after which
they are settled in Siberia. “Eastern Siberia is full of liberated
assassins,” remarks Prince Krapotkine, “and, nevertheless, there is hardly
another country where you could travel and stay with greater security;
while the unceasing robberies and murders of which Siberia complains now,
take place precisely in Tomsk and throughout Western Siberia, whereto no
murderers and only minor offenders are exiled. In the earlier part of this
century it was not uncommon to find at an official’s house that the
coachman was a liberated murderer, or that the nurse who bestowed such
motherly care upon the children bore imperfectly obliterated marks of the
branding-iron.”[90] Mr. Davitt, speaking from an extensive acquaintance
with criminals, says:--“The really hardened, irreclaimable criminal will
never commit a murder.... The most heinous of all offences--murder
deliberately intended and planned before commission--is, ordinarily, the
offspring of the passions of revenge and jealousy, or the outcome of
social or political wrongs; and is more frequently the result of some
derangement of the nobler instincts of human nature than traceable to its
more debased orders or appetites.”[91] Again, Miss Carpenter, in her
_Female Life in Prison_, wrote:--“Some women are less easy to tame than
the creatures of the jungle.... And yet these women are not always in for
the worst crimes: there are few, if any, murderers amongst them; they have
been chiefly convicted of theft after theft, accompanied by violence.”
These observations are entirely in accord with the results of criminal
anthropology; the murderer belongs very frequently to the class of
criminals by passion, the least anti-social of all, and is at other times
frequently the subject of some morbid impulse, epileptic or insane.
Perhaps the most powerful reason in favour of the probable disappearance
of capital punishment is the humanising influence that would be exerted on
the community generally. The unreasoning outbursts of ferocity in which,
especially among young and emotional democracies, some morbid and
distracted creature who fires at a political personage is hurried with
glee to the scaffold, or some half-witted human thing who commits a rape
is perhaps actually torn to pieces, are not wholesome manifestations of
the social spirit. They are far less excusable than the deeds by which
they are aroused, for the reason that they arise in more normally
constituted persons. So long as capital punishment is legitimate there is,
however, at least the appearance of an excuse for the development of these
brutalising outbursts. All that is finest in civilisation is bound up with
a self-restraint and humanity, as well as a more intelligent insight,
which, while admitting a more chastened social reaction, makes ferocity
impossible.
Let us turn to the prison. During the last century a vast amount of care
and enthusiasm, philanthropic and administrative, have been expended on
the elaboration and development of prisons. It is needless to sketch the
history of this development, which seems now to have come to a standstill;
it has often been done, and is easily accessible. It is however very
interesting and instructive to take note of the deliberate opinions
expressed during the last few years, from various points of view, by those
who have had the opportunity of studying most intimately the modern
developed prison.
A curious fate has befallen this ancient institution. In its more
primitive form it now arouses universal disgust and horror. The Russian
prisons of Siberia are, for instance, a by-word of reproach. The physical
and mental torture which they inflict, wholesale and indiscriminately, on
men and women, on political suspects as well as on the lowest criminals,
have been described over and over again, from within and from without,
during the last fifty years, in Dostoieffsky’s _Recollections of the
Dead-House_, by Maximoff, and by Krapotkine, and still, when Mr. Kennan
repeats the old story, a wave of indignation passes across the civilised
world. Elsewhere on the fringe of European civilisation the primitive
prison is still scarcely changed. The Spanish prisons are often filthy and
overcrowded, and the inmates are maintained in laziness. In the Spanish
prison of Ceuta, in Morocco, there are 3000 convicts, mostly for life, and
crowded together, so that 112 sleep in one room.[92] The native prisons
of Morocco are the abodes of oppression, starvation, and filth, where the
innocent and guilty are thrown in together, without any kind of work, and
allowed to die slowly. “The horrors of these places are indescribable.
Often they are underground, damp, and pestilential; always filthy. They
are frequently very crowded, and a dozen or more poor wretches may be
fastened in one chain by their necks, with heavy irons on their wrists and
ankles, unable to stir a foot away from one another for any purpose all
night, and often all day.”[93] “On the highest authority,” says Mr. Cook,
“I am able to say that the prison population of the city of Morocco equals
the free population.” In the interior, where there is no dread of European
influence, things are naturally much worse. In Egypt the prisons are
filthy and filled with untried prisoners. In Greece the prisoners are,
“if possible, dirtier than those of Egypt, no work, no books, and but
little food. Some of the rooms containing ten prisoners were less than
twelve feet square.” Many of the prisons of South Africa are in a wretched
condition, and some of those in the United States are little better.
A century ago most of the prisons of England could fairly have been
included in any such enumeration as that I have just attempted. “They are
ironed,” wrote Howard of the English convicts of 1773, “thrust into close,
offensive dungeons, and there chained down, some of them without straw or
other bedding. They continue in winter sixteen or seventeen hours out of
the twenty-four in utter inactivity, and immersed in the noxious effluvia
of their own bodies. Their diet is at the same time low and scanty; they
are generally without firing; and the powers of life soon become incapable
of resisting so many causes of sickness and despair.” There was not, as a
recent writer remarks, so much consideration for prisoners in Britain as
there had been in the reign of the Emperor Constantine, for the Romans of
the fourth century did not permit the imprisonment of men in the same room
with women. Howard found a girl locked up all day with two soldiers in the
Bridewell at St. Albans, and in many of the gaols there was insufficient
provision for the separation of the sexes.
We have changed all that. The best prisons of England, France, the United
States, Belgium, Italy, and some other countries, are models of ingenuity,
cleanliness, and routine. It cannot be said, indeed, that we have
succeeded in hindering communication between prisoners, or in preventing
an illicit traffic in tobacco, etc., or even the practice of unnatural
intercourse; and we do not trouble ourselves too much to reform the
prisoner. Yet even these laxities of discipline have added materially to
the prisoner’s comfort; and if we have not reformed the prisoner we have
at least reformed the prison, an easier task, and one which shows more
tangible results. “The prisoner of the present day is well cared for,”
remarks Dr. Gover, the medical inspector, in a recent Report of the
Directors of Convict Prisons; “he is supplied with all the necessaries,
and not a few of the comforts of life; and his existence is, to say the
least, rendered very endurable. The labour exacted from him is not irksome
in its character, and he is not subjected to any depressing punishment
unless it be for idleness or for serious misconduct.” But the work is not
of an exhausting character, so that there is no very strong motive to
laziness. “Hard labour,” Mr. Horsley remarks, “is such that no prisoner
could get a living outside if he did not work harder.” It is not
surprising that under these circumstances the prisoner flourishes. “In our
prisons now there is,” says Dr. Richardson, “a lower mortality and
probably a lesser sickness than in the most luxuriously appointed and
comfortable houses in the commonwealth.” And what, he asks, is more
natural when we find “epidemic poisons shut out of our prisons; famine
shut out; luxury shut out; drink shut out; exposure to cold and wet shut
out; the acute and most destructive kinds of mental worry shut out; the
hungry strain for to-morrow’s bed and board shut out; the baneful
association with criminal life at large shut out!”
And yet we are dissatisfied! This comfortable, easy-going routine of the
modern prison is viewed with scarcely more approval by the thoughtful
investigator of to-day than the horrors of the primitive prison. It is
deeply interesting and suggestive to take note of the opinions expressed
during recent years by those most intimately acquainted with the modern
prison. “Why are our prisons failures?” asks Mr. Horsley, who is as
impressed as much as any one by the material progress of prisons. “Men are
asking, and will more loudly ask, ‘Why are our prisons such utter
failures?’ In the face of the phenomena of recidivism, and men and women
with hundreds of convictions, it is absurd to imagine that they are as
deterrent as they should be.” The prisoner is, he points out, but
temporarily suspended from habits of crime by circumstances not under his
own control: “He may even boast of his intentions, but out he must go,
with as much safety to the State as if all mad dogs were muzzled for
twenty-four hours and then all unmuzzled, because it had been found that
in that period a certain proportion ceased to be dangerous; or as if all
small-pox patients were discharged from hospital so many weeks after
reception, whether cured or not.”[94] Another prison chaplain (Rev. C.
Goldney), speaking from an experience of twelve years, writes still more
recently:--“I say, unhesitatingly, that if a society for the manufacture
of criminals were set on foot, that society could in no better way further
its aims than by pressing for the imprisonment of every little boy and
girl who could, on any decent pretext, be brought before a bench of
magistrates. Prison officials well know the hardening influence of gaol
life on the young, and statistics show how unlikely it is that the first
term of imprisonment will be the last in the case of children of tender
years. They learn the secret which should jealously be kept from
them--that a short imprisonment is after all no such very terrible
punishment.” Mr. Michael Davitt has learnt by actual experience the
realities of English convict life at Dartmoor, Portsmouth, and Portland,
and the valuable book in which he has summed up those experiences is full
of wise and fruitful suggestions. After pointing out that philanthropic
intentions on the part of the heads of a department are no guarantee for
their administration at the hands of warders and assistant-warders, he
continues[95]:--“Penal servitude has become so elaborated that it is now a
huge punishing machine, destitute, through centralised control and
responsibility, of discrimination, feeling, or sensitiveness; and its
non-success as a deterrent from crime, and complete failure in reformative
effect upon criminal character, are owing to its obvious essential
tendency to deal with erring human beings--who are still men despite their
crimes--in a manner which mechanically reduces them to a uniform level of
disciplined brutes. There is scarcely a crime possible for man to be
guilty of, short of murder, which should not, in strict justice, be
expiated by seven years’ infliction of a punishment that has been brought
to such a nicety of calculation that there is the closest possible
surveillance of every one undergoing it night and day, together with an
unceasing conflict between every feeling in the prisoner that is superior
to a mere condition of animal existence and the everlasting compulsion to
refrain from almost all that it is natural for man to do, and to do what
it is to the last degree repugnant for any rational being to consent to
perform. Yet wretches who have had a London gutter or a workhouse for
their only moral training-school, and who have been subsequently nurtured
in crime by society’s other licensed agencies of moral corruption, receive
ten, fifteen, and sometimes twenty years for thefts and crimes which
should, in justice, be expiated by a twelve months’ duration of such
punishment. It is these horribly unjust penalties that beget many of the
desperadoes of Portland, Chatham, and Dartmoor, the murderers of warders,
the malingerers, and the partial maniacs, and which implant in the minds
of convicts that ferocious animosity against law and society which turns
so many of them into reckless social savages.” Prince Krapotkine has also
had practical acquaintance with prisons, and his conclusions also are
deserving of study. In his very interesting book, _In Russian and French
Prisons_, after describing the routine of the Maison Centrale at
Clairvaux, one of the best-arranged of modern prisons, he adds:--“Such is
the regular life of the prison, a life running for years without the least
modification, and which acts depressingly on man by its monotony and its
want of impressions; a life which a man can endure for years, but which he
cannot endure--if he has no aim beyond this life itself--without being
depressed and reduced to the state of a machine which obeys but has no
will of its own; a life which results in an atrophy of the best qualities
of man, and a development of the worst of them, and, if much prolonged,
renders him quite unfit to live afterwards in a society of free
fellow-creatures.” And again he remarks:--“The real cause of recidivism
lies in the perversion due to such infection-nests as the Lyons prison is.
I suppose that to lock up hundreds of boys in such infection-nests is
surely to commit a crime much worse than any of those committed by any of
the convicts themselves.”[96] M. Émile Gautier, a companion of Prince
Krapotkine’s, who has written a series of remarkable articles on this
subject,[97] calls the prison a hot-house for poisonous plants. He points
out what has often been remarked by others (Mr. Davitt, for instance), the
great difference between the “bon détenu” and the “bon sujet.” “The
recidivists are always the most easy to manage, the most supple--or the
most hypocrital--and therefore the favourites with the officials. The
misfortune is that this ‘bon détenu,’ according to the formula, soon
becomes under this _régime_ as incapable of resisting his comrades,
instinctive criminals or professional evil-doers, as the warders, and as
little refractory to temptation, to unwholesome stimulus, to the
attraction of an illicit gain, or to the contagion of bad example, as to
discipline. He can only obey--no matter whom!” And elsewhere he says: “It
is well to remark that there is not one of the passions, natural or
factitious, of man, from drunkenness to love, which cannot find in prison
at least a semblance of satisfaction.... It need not be said that the
prisoner afterwards carries out with him into the world all these
abnormal vices in a more developed form. The prison indeed, as it is
organised, is a sewer throwing out into society a continuous flood of
purulence, the germs of physiological and moral contagion. It poisons,
brutalises, depresses, and corrupts. It is a manufactory at once of the
phthisical, the insane, and the criminal.” Dr. Napoleone Colajanni, the
eminent criminal sociologist of Naples, confirms from personal experience
the evidence given by Prince Krapotkine and M. Gautier. A writer who is
peculiarly well informed as to the manners and customs of the criminal
classes in England writes:--“Looking at our present system of dealing with
thieves, examining it from every side, it is clear that nothing can be
more clumsy and inefficient--except for evil. Let any one of robust health
fancy himself a prisoner within four walls, employed day after day in
severest labour, without a face to look at except that of the tyrant
warder or the scowling criminal, without relaxation or kindly intercourse
of any kind; with nothing, in short, to subdue the darker feelings, but
with everything to nourish them. Let any one of robust health fancy
himself enduring this year after year--for a fifth, a fourth, or even half
of a life--and then say what sort of creature he would probably become.
Then there is the expense of a system which does not reform nor get rid of
the thief--in old days gaol fever did the latter when the halter
failed--but merely hoards him up for a while to turn him loose on society
more wolfish than ever. As we deal with the thief he is our most costly
national luxury.”[98] The courts of Paris and of Bourges have not
hesitated to declare that the chief cause of recidivism is to be found in
the prison and its _régime_.[99] In one of the foremost American States,
Ohio, an influential committee, including the Governor of the State, has
reported: “With less than half-a-dozen exceptions, every gaol in Ohio is a
moral pest-house and a school of crime.” The Lord Chief Justice of England
(Lord Coleridge) is reported as saying, in 1885, that “there were few
things more frequently borne in upon a judge’s mind than the little good
he could do the criminal by the sentence he imposed. These sentences often
did nothing but unmixed harm, though he was sure that throughout the
country the greatest pains had been taken to make our prisons as useful as
possible in the way of being reformatories. But, as a matter of fact, they
were not so.”
M. Laloue, inspector-general of prisons in France, stated before a
commission that “with our existing system, twenty-four hours’ imprisonment
suffices, under certain circumstances, to ruin a man.” The following
conversation ensued. _M. Tailhand_: “There is perhaps some exaggeration in
the statement that twenty-four hours’ imprisonment can ruin a man.” _M.
Laloue_: “I do not exaggerate. I say what I have seen. The prisoner meets
a corrupt recidivist; they appoint a _rendez-vous_ outside, and that man
is lost.” _M. Tailhand_: “He must be a man of very weak character.” _M.
d’Havssonville_: “It is such characters that succumb.”
Professor Prins, inspector-general of Belgian prisons, and the chief
authority in Belgium on these questions, writes:--“What is the advantage,
unless the necessity is absolute, of putting into prison the head of a
family to devote him to infamy, to compromise him in the eyes of his
fellow-workmen, of his wife, and of his children? Is it not to condemn
these latter to abandonment, misery, and mendicity? Is it not to join to
the wretchedness which is the act of destiny, a wretchedness which is the
act of law? Is it not, in short, to degrade and ruin the delinquent, thus
to deliver him over to the suggestions of despair, and to risk making him
a recidivist?”[100]
Garofalo, the eminent Neapolitan lawyer, certainly one of the most
sagacious of those who have in recent years studied the treatment of the
criminal, writes:--“Suppose that in some legendary country an austere king
forbade all flirtation with married ladies, and that the punishment
threatened to the guilty one should be a prohibition to leave during
several weeks a certain club, a magnificent hotel, with gardens and
terraces, where this gentleman would find his best friends, his old
comrades at board and game, who, far from blaming him, would be glad to do
the same. In this sympathetic environment we may be sure they would treat
with much contempt the absurd law and the punishment it inflicted. Who
would not laugh to think that it should be pretended that after such a
punishment this individual would not recommence his ordinary life and
commit again the very offences for which he has been punished?”[101]
“Imprisonment,” affirms Reinach, in his often-quoted work, _Les
Récidivistes_, “especially if short, is an excitation to crime.” “As to
the reformation of the criminal,” remarks Dr. Paul Aubrey, in a recent and
able study, _Le Contagion du Meutre_, “that is a myth; the prison is
still the best school of crime which we possess.” “The houses of
correction are much more houses of corruption,” said a young Italian
thief. “Clever robberies are arranged in prison,” a thief told the Abbé
Moreau; “the prisoners all know each other; once at liberty they can find
one another.” “I have seen young men enter the Grande Roquette,” the Abbé
observes elsewhere, “guilty, but not corrupted, who went out decided to
commit crimes which a few months before they would have regarded with
horror.”
It is unnecessary, I trust, to accumulate further evidence on this point;
it is a melancholy though far from a difficult task. It must be
sufficiently clear that the modern prison, with its monotonous routine of
solitary confinement, varied by bad company, is fruitful of nothing but
disaster to the prisoner and to the society on which he is set loose. Such
mitigation of its influence as may be found is chiefly due to voluntary
charitable agency.
There is one group apart from the chorus of damnation which has of late
years greeted the modern developments of the prison. Unfortunately it is a
sinister and terrible group of exceptions. The prison is an incubator for
those who are young in crime, a place of torture for those who possess the
finer feelings of humanity, that is precisely the class of people,
usually, who ought not to be sent to prison; but to habitual offenders,
the confirmed recidivists, precisely the class of people on whom the
prison ought to work as at once a reforming and deterring influence, it is
simply a welcome and comfortable home. It is a well-known fact that the
prison is preferred to the workhouse. “Whole classes,” as Mr. Horsley
truly remarks, “are brought to consider that, from several points of view,
the prison is preferable to the workhouse.” “Amidst the mass of our fallen
sisters in gaol,” a prison matron observes (_Female Life in Prison_),
“there are these strange practical philosophers--women who have weighed
all the chances between the workhouse and the prison, and who, being
compelled to choose between one and the other, strike the balance in
favour of the gaol. A little less liberty, but more kindness and
attention; better food and more friendly faces--only the key turned upon
them, and their sleeping chamber called a cell!” “It is a painful fact,”
remarks Mr. F. W. Robinson, “that the ordinary female convict considers
herself above the woman in the Union. ‘Look at these shawls,’ was said
once by an indignant prisoner upon a new style of shawl being introduced
into the service; ‘do they take us for those poor workhouse wretches, I
should like to know!’” The author of _Five Years’ Penal Servitude_
says--“A farm-labourer has told me frequently that he worked far harder
for his eleven shillings a week than ever he had at stone-quarrying or
anything else in prison. When at home he seldom, if ever, had meat of any
sort, and his bed was but a poor affair compared to his prison couch. Here
in prison, comparatively speaking, he fared sumptuously every day, and I
can assure the reader he considered the living luxurious compared to what
he had at home.” “There can be no doubt,” as Beltrani-Scalia remarks,
“that the life of a prison is superior, from a material point of view, to
that which most prisoners are accustomed to lead in liberty.” To the
habitual criminal that is everything. The perpetration of offences for
the purpose of obtaining admission to prison is far from uncommon, and the
criminal slang of various nations with its friendly synonyms for the
prison is very significant on this point. There is a popular Sicilian song
which says: “He who speaks evil of the Vicaria [prison of Palermo] ought
to have his face cut. He who says that prison punishes, how he is
deceived, poor devil!”[102] And again: “Here only will you find your
brothers and friends, money, good cheer, and a peaceful time; outside you
are always in the midst of your enemies, and if you cannot work you will
die of hunger.”[103] Reinach mentions a mason who at the beginning of
winter committed a small offence in order to spend the winter comfortably
in a warm prison. The prison of Vienne (Isère) has, it is said, long been
a favourite place of resort during the winter. Several of the hundred
prisoners studied by Rossi had sought in prison a winter refuge. One who
had frequently been in prison before for short terms, said--“Now I’ve had
the good luck to get six months.” A German criminal, who had just been
released from prison, attempted rape. He received a sentence of eight
years’ imprisonment. He rose, thanked the court for the sentence,
regretting, however, that it was not for a longer period, and adding that
he had only committed the offence as an agreeable way of returning to
prison, where alone he found pleasant society and a life free from care.
Manduca speaks of a man, advanced in years, who had just completed a long
term of hard labour, and finding himself without means of subsistence,
killed without any cause an old friend of his childhood. Bretignères de
Courtelles found that 17 out of 115 prisoners entered prison in order to
restore their health.
The habitual criminal who has grown accustomed to prison life cares for no
other, and is suited for no other. “I have seen men,” said Lauvergne,
“almost dying from home-sickness because they must soon leave the prison.”
Jules Vallès spoke of _l’air vénérable_ of the old convict; Émile Gautier
calls it _l’air reposé_. Prison, he adds, is a kind of nirvana, and he
tells of an old convict who possessed in a high degree this _air
vénérable_, closely resembling Thiers, who, at the end of five years’
sentence passed at Clairvaux, wrote as follows to the director:--“Sir, you
know me. You know who I am, what I am worth, and what services I can
render you. Now I am about to be thrown up again into the world, where I
shall not know what to do. As soon as I have consumed my allowance in
having a good time I shall immediately get myself arrested. May I beg of
you to have the extreme kindness, as soon as I am again condemned to
several years’ imprisonment, to claim me for Clairvaux? I will inform you
as to time and place, and in the meanwhile kindly reserve my place.
Neither you nor I will have to repent of this agreement.” That letter,
more pathetic than amusing, is the logical outcome of our prison system
quite as much as of our social system.
The haphazard fashion in which the period of a prisoner’s detention is
fixed on beforehand is quite in harmony with the unsatisfactory character
of the results obtained. It is well known that the criminal courts are
prevented from awarding any sentence between two years, the longest period
of imprisonment, and five years, the shortest legal sentence of penal
servitude. Yet, as the Directors of Convict Prisons point out, “now that
penal servitude is always carried out in prisons at home, there is no
fundamental distinction between the two classes of punishment.” On the
31st of March 1888 there were in English convict prisons 6970 persons. Of
these, 3034 were undergoing penal servitude for 5 years, the lowest term
permitted by law; in the case of one solitary individual the exact period
of 6½ years was required, while 1387 needed 7 years of prison treatment.
Only 6 persons had been guilty of an iniquity equal to 9 years’ penal, but
no fewer than 1022 had committed an offence equivalent to 10 years’ penal
servitude, while 1 person only in England, having managed to just surpass
this sum of iniquity, was in for 11 years. There were 240 in for 20 years,
but only 3 for 21 years, and to 1 individual had been meted out exactly 29
years. It would be interesting to know by what delicate and complicated
considerations this precise sum of guiltiness was reached. If we turn to
the statistics of the United States at the same period we shall find the
same peculiarities, though the variations in the periods doled out to
long-term prisoners are spread over a wider field; they begin at 1 year,
and include 18 for 50 years, and 82 for 99 years. “The favourite
sentence,” as Mr. Wines remarks, “seems to be two years; then five, then
three, then one, then four, then ten. There is throughout a tendency
apparent to choose sentences, the numbers representing which terminate in
the figure five or a cypher.”[104] In England the decimal unit is held in
chief favour by judges, whether or not they realise what it may mean to
the man who afterwards thus tells his experience:--“There on my cell wall
was the card; it bore my name and my sentence--20 years. No wife to cheer,
no children to prattle at my knee; 20 years! O God! will it ever end? 20
years,--240 months,--1040 weeks; oh, this dread future!” The sentence may
be just or not, but, whether he will or not, the judge must fix on some
definite term, with such results as we see. When Pantagruel arrived at
Myrelingues, he found that Judge Bridoye, after carefully considering all
the facts of a case, was accustomed to decide it by means of dice; and
Pantagruel fully admitted the humility, piety, and impartiality of this
method. If our judges, before pronouncing sentence, were first to
determine the years to be awarded by a solemn casting of dice, the result
might be as good as those reached by the not very dissimilar system now
adopted. “Are prisons necessary?” asks Prince Krapotkine, and the question
has been variously and timidly echoed in modified forms. Necessary or not,
the institution is still so deeply rooted in civilised societies that it
is idle yet to talk of overturning it. In spite of its acknowledged
inutility we are content to pay very large sums in maintaining it, and no
other method of treatment could be suddenly substituted. In England in
1889 there were 6405 persons undergoing sentence of penal servitude; in
the United States there were recently 31,000 long-term prisoners; the
various species of prisons in Italy contain some 70,000 persons, including
5000 incarcerated for life; in Germany, during six years, according to
Professor Liszt, no fewer than 10,000,000 persons are imprisoned or fined.
It is clearly idle to talk yet of the abolition of so flourishing an
institution: can we give it real social utility?
The key to the failure of the prison, and a chief clue in its reform, lies
in the system of administering definite and predetermined sentences by
judges who, being ignorant of the nature of the individual before them,
and therefore of the effect of the sentence upon him, and of its justice,
are really incompetent to judge. Enough has been said of long sentences,
the justice of which, it is obvious, must be quite a matter of chance. But
the short-term imprisonments reveal quite as clearly the inadequacy of the
system. The newspapers constantly tell of old offenders who have been in
prison for over a hundred short periods. In a recent report of the Prisons
Board of Ireland, the case of a woman is mentioned who was committed to
Grangegorman prison thirty-four times during 1888, and never received a
sentence for a larger term than fourteen days. This woman had been
committed 146 times in previous years, so that she has undergone in all
180 imprisonments.
Society must say, in effect, to the individual who violates its social
instincts: So long as you act in a flagrantly anti-social manner, I shall
exercise pressure on you, and restrain, more or less, the exercise of your
freedom. I will give you a helping hand, because the sooner you begin to
act socially the better it will be for both of us. I shall be glad to
leave you alone, and the sooner the better; but so long as I see that you
are a dangerous person, I shall not entirely leave my hold on you.
That is the only attitude towards the criminal which is at once safe,
reasonable, and humane. If, holding this lamp, we turn to our prison, we
see at once how incompatible with such an attitude is the system of
determining beforehand the exact period of the delinquent’s detention.
Many a man imprisoned for life, to his own misery, the ruin of his family,
and the cost of the State, might with absolute safety to the community be
liberated to-day; it is unnecessary to speak further of the thousands for
whom society, inside or outside prison, has done nothing, and whom it
liberates, with full knowledge that they proceed at once to prey upon
itself. The great fault of our prison system is its arbitrary character.
It is a huge machine working by an automatic routine. The immense
practical importance of criminal anthropology lies in this: that it
enables us to discriminate between criminal and criminal, and to apply to
each individual case its appropriate treatment.
The first reform necessary is the total abolition of the definite and
predetermined sentence. The indefinite sentence is no longer new, either
in principle or practice; all that is needed is its systematic extension.
It has been adopted by several of the American states, such as
Massachusetts, Ohio, Pennsylvania, and Kansas, and it was introduced at
the famous state reformatory of New York at Elmira, by an Act passed in
1877. This Act took from the courts the power of definitely fixing the
period of confinement in prisons until, in the opinion of the managers of
the Reformatory, they may be let out on parole for a probationary period
of six months. No imprisonment was to exceed the maximum term provided by
law for the offence for which the prisoner was convicted. Several thousand
criminals have passed through Elmira, and only a small percentage prove
recidivists. Before a prisoner is paroled a suitable situation is, if
possible, arranged for him. To an Englishman, Frederick Hill, belongs the
honour of first suggesting this fruitful reform, the indeterminate
sentence, and his brother, Matthew Devonport Hill, vigorously supported
the principle. In 1880 Garofalo--independently, it appears--advocated
indefinite imprisonment in a pamphlet entitled _Criterio positiva della
penalità_, published at Naples, and in his great work, _La Criminologie_,
he wisely and consistently advocates the abolition of the definite
sentence of imprisonment. In Germany it was advocated in 1880 by Dr.
Kraepelin, a well-known authority on these matters (_Die Abschaffung des
Straffmasses._ Leipzig), and in 1882 Professor von Liszt, of Marburg,
supported it with the weight of his authority. This fruitful reform, which
sprang up almost at the same time, and with apparent spontaneity among the
Anglo-Saxon, Latin, and Teutonic races, although of such recent growth,
needs little advocacy. It is so eminently reasonable that to state it
seems sufficient to ensure its acceptance. When its advantages are
generally known and realised it will undoubtedly spread in the same way
that it has already begun to spread in the United States.
While the indeterminate sentence is an absolutely essential reform, if our
prison system is to be redeemed from the charges that now weigh so heavily
upon it, it is still only a preliminary step.
One of the first and most obvious consequences is the necessity of
reorganising--or, rather, of organising--the prison staff. It is
unnecessary to show here, for it has often enough been shown by those who
are familiar with the inside of a prison, that practically the prisoner is
always at the mercy of the warder. The philanthropic head of the
department, at a distance, must always count for less than the warder,
philanthropic or otherwise, on the spot. Whatever educative and
socialising influences the prison may possess must pass chiefly through
the hands of the warders with whom the prisoner comes chiefly in contact.
It is not necessary to investigate the character and conduct of the
average warder. Those who appoint him and are satisfied with him are the
responsible parties. It is enough to say that the prison warder of to-day
is about as well fitted for the treatment of criminality as the hospital
nurse of a century ago was fitted for the treatment of disease. Every one
now recognises the immense importance for the inmate of a hospital of good
nursing by a trained nurse; the doctor himself is the first to proclaim
the essential nature of skilful and intelligent nursing. Yet the criminal,
in all his manifold variations, with his ruses, his instinctive
untruthfulness, his sudden impulses, his curiously tender points, is just
as difficult to understand and to manage as the hospital patient, and
unless he is understood and managed there is no hope of socialising him.
In Italy, France, Belgium, and Switzerland there are, I believe,
institutions for the training of prison attendants, but as yet they have
been of little effect, as they have not apparently been conducted in
connection with the prison, nor on a scientific basis. Their establishment
is a pressing necessity; no person should be appointed to any position
involving the care of criminals who has not been qualified by training in
such a school. He would here become acquainted with the peculiarities of
the various classes of criminals; he would learn to work with them and to
instruct them; and, not least, he would learn to rate at its proper value
the difficult and important profession on which he was entering. It is
this sense of a noble social function, full of privileges as well as
responsibilities, which has raised nursing to its present high position
and has brought into the ranks of nurses so large a leaven of capable and
refined women.
At the same time the education of the criminal need not be entirely in the
hands of officers the greater part of whose time is passed within the
prison. There is considerable force in the remark of Dr. Wey, the able
physician of the Elmira Reformatory, concerning the advantage of the
prisoner having highly skilled teachers, fresh from the outside world and
mingling daily in the affairs of men. The barrier which has, in most
civilised countries, been set up between the criminal and the outside
world must be to some extent broken down. This is necessary in the
interests of both parties. The criminal cannot be too carefully secluded
from his fellow-criminals, neither can he have too much of outside
socialising influence, if he is to be won back from the anti-social to
the social world. In some of the colonies, it is said, good results have
come of voluntary visiting. It is necessary, however, that this should be
judiciously regulated so as to exclude fanatical, inexperienced, and
merely curious persons. Mr. Tallack tells us some amusing stories
concerning the results of allowing ignorant and foolish visitors. Thus a
gentleman, by talking of hell-fire, succeeded in so thoroughly
exasperating a prisoner that the latter seized him, and exclaiming, “I
have hell enough here already without you bringing me more of it,” would
have administered summary chastisement had not a warder appeared. It is
obvious that the more we restrict the intercourse of criminals in prison
between themselves the more necessary it becomes to supplement the limited
staff by assistance from without, which, while carefully chosen, must be
chiefly voluntary. On the other hand, if we are to learn to know the
criminal thoroughly, so as to learn at once how to treat him and how to
protect ourselves from him, we must have a certain amount of access. “The
time has now come,” as Dr. Maudsley has well said, “when we ought to use
our prisons as we do our hospitals, not for the care and treatment of
their inmates, but for the advancement of knowledge and the improvement of
man’s estate.”[105] And M. Tarde, speaking, as a _juge d’instruction_,
from a different point of view, insists in his well-known work, _La
Criminalité Comparée_, on the need of every law student completing his
course by an obligatory attendance of six months at the _Clinique
Criminelle_ of a prison.
When we have caught our criminal we put him at once into solitary
confinement. If rigidly carried out this plan has the advantage of
secluding the criminal from his fellows. Regarded as a rational method of
treatment, cellular confinement is a curious monument of human perversity.
That it should have been established shows the absolute ignorance of
criminal nature which existed at the time; that it should still persist
shows the present necessity for a widespread popular knowledge of these
matters. It may be possible to learn to ride on a wooden horse, or to swim
on a table, but the solitary cell does not provide even a wooden
substitute for the harmonising influences of honest society. To suppose
that cellular confinement will tend to make the criminal a reasonable
human being is as rational as to suppose that it will tend to make him a
soldier or a sailor, a doctor or a clergyman. The mistake here is the old
one that has vitiated so much of human action where the criminal is
concerned--the mistake, that is, of supposing that at all points he is an
average human being. Solitary confinement on a refined and cultured human
being may produce a deep and lasting impression; a period of solitude,
indeed, is for every intellectual person of immense value in helping him
to know himself; though even here, if compulsory and unbroken, it can
scarcely be without demoralising effect. But the case is quite different
when we turn to the vacuous-minded, erratic, and animal person who is
usually the criminal. Solitude produces in him, as Professor Prins
remarks, no intellectual activity, and no searching of conscience; it
serves merely to deepen his mental vacuity and to deliver him over to
unnatural indulgence in the one animal appetite of which he cannot be
deprived.[106] Professor Prins points out, as does Prince Krapotkine, that
the cell excludes all the bracing influences of struggle; the morality of
the cell is submission, punctuality, quietness, politeness to warders. A
moral life shut up in such a frame has nothing in common with social
morality. Beltrani-Scalia, formerly Inspector-General of Prisons in Italy,
is of the same opinion, and remarks that “the cellular system looks upon
man as a brother of La Trappe.”
Dr. Wey, of Elmira, states the rational method of treatment when he
remarks--“Education means occupation, either mental or physical. The time
of the convict should be so employed in his shop-work and school duties as
to leave him no leisure moments in which to revive the past, and live over
again in memory his criminal days or plan for the future; but each hour
should bring to him its employments and engross his attention till the
time for sleep.”[107]
The experiments in the treatment of the criminal which are being carried
on at Elmira are probably of more wide-reaching significance than any at
present carried on elsewhere. It is worth while to consider them somewhat
in detail. I select an experience carried on during 1886 and recorded by
Dr. Wey, who had charge of it. On June 5th, 1886, Dr. Wey selected eleven
dullards between the ages of nineteen and twenty-nine. For a period of one
to two years previously these men had made no progress. “In physiognomy
they presented features indicative of criminal tendencies. Not one had
learned a trade, but all had made a precarious living as common labourers,
tramps, hostlers, and street-loafers. One was convicted for assault in the
first degree; five for burglary in the third degree; one for grand larceny
in the first degree; three for grand larceny in the second degree; one for
rape, and one for attempted rape. The environment of most of the men
previous to conviction was bad, many of them confessing to have had
intemperate parents, while one told of an insane, and another of an
epileptic mother.” All however were well nourished, and their functions,
save that of the skin (five had acne and one ichthyosis) well performed.
“An idea of their mental attainments can be formed from the fact that one
could neither read nor write; one barely do either; four understood the
successive steps necessary to work an example in long division, but never
could obtain the correct answer; while the balance came to grief upon the
shoals of rudimentary arithmetic from notation to simple division. Their
stock of information was surprisingly small, being generally limited to a
slight knowledge of the things they liked to eat and the work they
preferred to do.”
The treatment adopted included a special dietary, bathing, massage,
gymnastics, and a continuation of the usual school-work. The daily
industries of the shop, etc., were suspended.
The food was varied each day, and was sufficient in quantity without being
excessive; it was weighed out to each, and provided at a common table,
instead of, as usual, in the cells, in unrestricted quantity. The
experience at Elmira shows that better results are obtained when the
amount of food is restricted than when it is unlimited in quantity. Dr.
Wey is strongly in favour of a diet consisting chiefly of milk and bread
and butter.
The bathing and massage formed a very important part of the treatment. The
routine, after several trials, resolved itself into three baths a
week--_i.e._, one tub and two vapour baths one week, followed the next
week by two tub baths and one vapour. “The tub bath consisted in placing a
man in a tub of water heated to about 100° F., and leaving him there to
rub and soap himself for fifteen minutes or longer. From the tub he was
placed upon a marble slab, where he was drenched with hot and cold water
and sponged. After this the body was spatted until the skin was in a glow,
the muscles pinched and kneaded, passive motions of the joints employed,
followed by a brisk rubbing with a coarse wash-towel or Turkish bathing
mitten, all this being done by a professional trainer, who was available
at the time. Being obliged to make use of the facilities at hand, the
vapour bath was the moist instead of the dry or heated air, and consisted
of turning steam into a room, and maintaining an atmosphere of 115° F.”
This was followed by massage as before. After the bath the men usually
slept until dinner time.
After dinner they were put through two hours or more of active physical
exercise. In the beginning this consisted of the drill employed in the
case of raw recruits, supplemented by dumb-bell exercises. At first they
were an awkward squad, slow to comprehend an order and deliberate in its
execution. It was some weeks before they were able to march in line and to
keep step.
On November 7th the class was discontinued, and the men were assigned to
various shops and employments.
The results of this treatment were in every respect remarkable. As they
slowly advanced in their studies an increased mental activity was noted,
and the workings of the mind were less forced and laborious than at the
beginning. In mental arithmetic they made progress, and were able, with
comparative ease and rapidity, to add three or four single numbers. “The
drill and discipline they were subjected to wrought an improvement in
their physical condition. The baths and stimulation of the cutaneous
system brought the skin to the highest degree of functional activity,
overcoming the integumentary disorders of five noted in the beginning. The
daily drill and dumb-bell exercises hardened and developed muscles that
previously were soft and flabby, and the entire muscular system acquired
firmness and power. The setting-up drill improved the carriage and
conferred a rapidity of action not before indulged in. The aimless
shuffling gait gave way to a carriage inspired by elastic muscles and
supple joints. The faces parted with the dull and stolid look they had in
the beginning, assuming a more intelligent expression, while the eye
gained a brightness and clearness that before was conspicuous by its
absence. With physical culture and improvement there came a mental
awakening, a cerebral activity never before manifested in their prison
life. The purely animal man with his ox-like characteristics seemed to
recede before the intellectual. Their progress in school-work was not
steadily onward, but intermittently progressive.” Whereas in the six
months before the class was formed the men had obtained less than 10/11 of
a mark (for demeanour, labour, and school) per man each month, during the
six months that followed the breaking-up of the class the number of marks
earned was 7-7/16 per month per man. There was a simultaneous and rapid
improvement, moral, physical, and intellectual--an improvement that was
common to all, although more pronounced in some, and which was very
encouraging, considering the material of which the class was formed. A
year later several had been released on parole, and were demonstrating
their ability to maintain themselves honestly, while only two of them,
still in prison, were not doing well.[108]
The results of this and similar experiments have been so satisfactory that
a fully-equipped gymnasium and Turkish bath are now in course of erection
at Elmira. “Here,” Dr. Wey tells me, “we propose to treat those who are in
arrears both in body and mind, and prepare them for work and study in the
schools of letters and trades. By this plan it is possible to impress
later the mind to a greater degree than could be done by taking up its
cultivation at the time the man comes to us.”
In 1888, when the Yates bill became law, the productive prison industries
of Elmira had to be suspended. “Within less than a month,” writes Dr.
Wey, “from the passage of the bill, all the men who previously were
employed in productive industries (industries yielding revenue) were being
drilled in military evolutions and tactics. In other words, idleness was
avoided by turning the prison into a military school. The men received
from four to six hours of drill daily, which was sufficient to prevent
them from rusting in their cells. By this means the health of the men was
maintained, and opportunity was afforded for increasing the scope of
school-work, trades, and letters. A drum corps was formed, and instruction
given others in instrumental music, with the sequence that to-day [29th
October 1889] we have a drum and fife corps of about twenty, and a band
composed of twenty or more wind instruments.[109] Two afternoons a week
are devoted to military work, the balance being devoted to technical
instruction. The effect of the military drill and discipline was so good
in the way of a health measure and in improving the carriage of the men
that I doubt if it will soon be discontinued. It was another phase of the
application of physical training.” The report of the able superintendent
of Elmira, Mr. Z. R. Brockway, fully confirms these conclusions.
Just now the industries of New York prisons are partially re-established.
The Fassett bill, passed in the spring of 1889, enabled various industries
to be apportioned to the various prisons, one prison not to compete with
another, and the number of men engaged in any one industry in a prison not
to exceed five per cent. of the total number engaged in the same industry
throughout the entire state. The question of productive prison industry is
still, however, far from settled.
The physical and industrial education is not the whole of the training
given at Elmira. A third, and scarcely less important, factor is the moral
and æsthetic training. There is no official chaplain at Elmira. “There
is,” says Mr. Brockway, “in the minds of men, as observed during
imprisonment, an unexplained but actual repugnance to professional,
official, and stereotyped religious phrases, while for the noble character
of the practical Christian, in common affairs, unheralded and unnamed,
there is among prisoners a quick and favourable response.” Although there
are no resident chaplains, various ministers and others--Protestant,
Catholic, and Jewish--attend frequently, and hold services, lectures,
classes, etc. The class in Practical Morality, originated a few years ago
by Professor Collin, has been judiciously managed, and has proved a
valuable feature in the work. The æsthetic culture has been chiefly
carried on by means of the systematic study of literature. The results in
this department have been unexpectedly encouraging. At first the men met
the attempt with sullen stupidity as a new task imposed upon them.
Gradually this impression was conquered; the men slowly began to acquire
an eager appetite for Chaucer and Shakespeare, for Emerson and Browning.
The applications for admission to the English Literature class became very
numerous, and at one time there was so great a run on Jowett’s Plato at
the Reformatory library that a special regulation had to be made
concerning its issue. It is satisfactory to learn that this taste has, in
many cases at all events, survived incarceration, as a wholesome
recreation for leisure hours. “In my work with the class in English
Literature,” writes the instructor in that department, Mr. Douglas, “I
proceed on the basis that the earnest obligatory study--let me emphasise
the word _study_--of mental and moral beauty developes or creates the
mental and moral faculty of appreciation; and, furthermore, that mental
and moral habits may be formed just as certainly as physical habits, and
without any more conscious co-operation of the individual than is required
in physical practice.” It has been mentioned already that a newspaper, the
_Summary_, is published within the Reformatory; it contains both local and
general news, as well as passages from good authors; the inmates
contribute to this paper, and at one time it was ably edited by a
prisoner. It has been said, with justice, that the _Summary_ compares
favourably with the average American newspaper published outside prison
walls.
The prison, as Professor Collin remarks, must be “a moral hospital.” As
Sir Thomas More said long ago, the end of punishment is “nothing else but
the destruction of vices and the saving of men.” Mr. Brockway, and those
who are working with him, have clearly realised this; the training they
give is rational and scientific, and hence its success. During the
thirteen years from the opening of the Reformatory to the end of 1889,
nearly 4000 prisoners were received at Elmira on an indefinite sentence.
Over 2300 of these were paroled, and of these 15.2 per cent. only are
estimated as having “probably returned to criminal practices and
contact.”
Elmira is at present the most promising direction in which we can turn for
light on the treatment of the criminal. Its wholesome and improving
discipline stands in favourable contrast to the lax indulgence and
shameful neglect of the criminal which coexist generally in the United
States. The system is not perfect, and it has been unfavourably reported
on by some observers. It is undoubtedly a defect that the prisoner must be
released, whatever his condition, at the expiring of his legal maximum
sentence; this is, however, an inevitable compromise. Notwithstanding all
defects, Elmira is full of encouragement, for it shows us a community
awakening to an active sense of its duties, so long forgotten, towards
those weaker members who, if neglected, become so dangerous to themselves
and to others. “It is an interesting sight,” remarks Dr. Wey, “when the
school is in session, to see a group of men, felons every one, gathered
about an instructor, intently listening as he makes clear some step in the
work in hand not fully or clearly understood, going through the various
processes, one by one, and explaining until the dullest mind can
comprehend. It is not expected that, with the comparatively limited time
for instruction, these men will become skilled mechanics. But rather the
idea has been to train the hand and eye, and teach the use of tools, to
awaken an ambition to pursue a lawful calling, and appreciate the value of
a practical knowledge of a trade, so that when the time shall come that
they pass beyond the prison doors, and again come into contact with
society, they will not be handicapped by the same conditions that formerly
operated to their detriment; but with increased resources of mind and body
will be enabled to occupy a higher and more self-respecting place.”[110]
The example of Elmira is spreading in America; in Ohio, for instance,
youthful criminals are being brought up on the broad basis of manual
training, and among the branches of industry taught are farming,
fruit-growing, carpentry, shoemaking, painting, tailoring, baking,
laundring, housework, vocal and band music, telegraphy and printing. On
the continent of Europe--especially, perhaps, in Germany--the system is
beginning to attract attention; and while it would be too sanguine to
conclude that Elmira has solved the question of the treatment of the
criminal, there can be no doubt as to the value of its contribution to
this difficult problem.[111]
It can scarcely be necessary to say that in any effectual treatment
flogging can have no part. It would not have been necessary to say a word
on this point if within very recent times an English Parliament had not
been found so lamentably ignorant of historic evolution in this matter, of
the results of experience, and of rational principles, as to pass a
Corporal Punishment Bill. The objections to flogging are by no means of a
sentimental character. We have seen that the instinctive criminal,
although often cowardly enough, is by no means peculiarly sensitive to
pain. Flogging is objectionable because it is ineffectual (as was shown
long since), and because it brutalises and degrades those on whom it is
inflicted, those who inflict it, and those who come within the radius of
its influence. These facts are well known to those who have more than a
superficial acquaintance with the insides of prisons, and should have been
ascertained by those individuals who presume to legislate, before they
voted in the face of reason and experience. To flog a man for whatever
offence, however brutal, is to sanction his brutality. Capital punishment,
which is brutal like flogging, is comparatively free from the brutalising
influence of flogging. The method of flogging is so obviously unfit to
humanise and socialise any human being, that the impulse to inflict it can
only spring from a relic of savagery of the same kind as that which
inspires the criminal, without his excuse of a morbid or defective
organisation. It can only be said in excuse of those who advocate it that
they have no experience in the matter. Those who have witnessed it have,
however, recorded their experiences. Thus, to mention one instance, Sir
Robert Rawlinson, after giving a vivid account of flogging as he has
himself seen and heard it, adds:--“I will strive in my mind to judge those
members of Parliament who now advocate the revival of corporal punishment
charitably, by considering that they have never seen it as I have feebly
attempted to describe it: the degraded man lashed to the triangles, the
white clean skin of an Englishman exposed to the cool morning air, to be
scored, cut up, and scarred into a pulpy, blood-smeared lump of living
human flesh. Take the vision away: it is too hideous even to remember.”
Even if there were less evidence as to the ineffectual character of
flogging as a deterrent, and to its bad influence on the _morale_ of a
prison, we cannot afford to flog any human being. It is well to meditate
on the words of Dostoieffsky, who was familiar with the various forms of
flogging, and has recorded his convictions in his _Recollections of the
Dead-House_. After giving his opinion that “the rods are the most terrible
punishment in use among us,” and speaking of the demoralising influence of
flogging on those who inflict it, he concludes:--“Let me add that the
possibility of such a licence acts contagiously on the whole of society:
such a power is seductive. A society which regards these things with an
indifferent eye is already infected to the bone. The right accorded to a
man to punish his fellows corporally is one of the sores of our society;
it is the surest method of annihilating the spirit of citizenship.”
Flogging has not yet reached among us the extension which it then had in
Russia and in Siberia, but its character and influence remain the same,
and the warning seems to be still needed.
With the indeterminate sentence must always be associated conditional
liberation--_i.e._, liberation by ticket-of-leave or on parole, liable to
revocation in case of misbehaviour. It is not, however, necessary to
insist on this, as the principle has long been practically recognised in
England and elsewhere. It exists in Belgium, some of the American states,
Hungary, Saxony, Switzerland, the Grand Duchy of Baden, etc.
A very desirable accompaniment to any system of dealing with criminals is
a sound system for their registration and recognition. The method
originated by M. Alphonse Bertillon is now adopted in France, Russia,
Japan, Spain, Italy, the Argentine Republic, and some parts of Germany,
and it is being adopted in several of the United States. By this method
the height, the length and width of head, the measurements of left foot,
of outstretched arms, of trunk when seated, of fourth finger of left hand,
of left arm, length of ear, colour of eyes, and any marks are recorded,
together with the photograph, profile and full face. The method of
classifying the photographs in its simplest form was thus generally
described by M. A. Bertillon a few years ago (_Revue Politique et
Littéraire_, 28 April 1883). Suppose we have 80,000 photographs. They are
first divided according to the sex, the men on one side, the women on the
other. These latter do not reach 20,000. The 60,000 men who remain are
divided into three classes according to height; the short numbering about
20,000, the middle-sized numbering about 20,000, and the tall 20,000. Each
of these divisions is divided into three series according to length of
head. These new divisions, to the number of nine, contain rather more than
6000 each. Each of these sub-divisions is then divided into three groups
according to length of foot, each group containing about 2000 photographs.
Each of these groups is again sub-divided into three, according to length
of outstretched arms (_grande envergure_). Each of these groups contains
about 600, and they are further sub-divided with reference to age, colour
of eyes, and length of middle finger. Thus by means of four new
anthropological characters (sex, height, age, and colour of eyes have long
been noted) 80,000 photos can be easily divided into groups of 50. The
measurements can be taken in two or three minutes, and require no special
intelligence. When an individual stands as regards height at the border of
two classes, he is put into both.
Thrusting a man into prison, when everything is said, is a measure only to
be taken with the utmost circumspection, after consideration of the
individual’s antecedents, and a clear conception of the ends to be
attained by imprisoning him. To relegate almost indiscriminately to prison
the miscellaneous army that file through a police court is an ignorant and
dangerous policy; there is little hope of good result, and a considerable
chance of evil result. If the period is for a few weeks only no permanent
beneficial end can be anticipated, even under the best of conditions;
while during so short a period no useful work can be commenced, so that
there is a direct incitement to idleness. When the prison has been decided
on, the period of detention must be indefinite, according to the results
attained in the opinion of those competent officers specially appointed to
form such decisions, and the liberation will be conditional.
It is a wholesome sign of progress that in so many European countries
substitutes for the prison, in the case of minor offenders (_i.e._,
occasional criminals), are being anxiously sought and gradually adopted.
One cannot avoid seeing how many individuals are unnecessarily condemned
even to penal servitude. In our convict prisons there exists a very
excellent plan, entirely in accordance with rational principles, of
forming what is called a “Star” class of convicts--that is, a “special
class of those not versed in crime.” The authorities “cannot speak too
highly of the general tone and behaviour” of these men, their “decidedly
good disposition,” “keen anxiety to gain a knowledge of some sort of
trade,” sense of “the moral degradation in which they have placed
themselves,” etc. Their industry and freedom from prison offences are so
marked, “and the special reports on the subject have been so uniformly to
the same effect, that it is no longer necessary to call for such reports.”
This is all very gratifying, but it is not at all clear that these men
should have been convicts at all. There are other and more satisfactory
methods of dealing with such persons.
It is not possible here to do more than touch slightly on the various
methods of dealing with occasional criminals. The one that approaches most
nearly to imprisonment is the method of pronouncing suspended sentences of
imprisonment to hang over the inculpated individual during a limited
period, at the end of which period, if his behaviour is good, the sentence
lapses. Imprisonment is thus, as Mr. Tallack remarks, commuted into
liability to imprisonment. This plan, applied to minor offences, was
adopted in Belgium in 1888, and is in use in some of the United States. In
England the First Offenders’ Act enables the magistrate to accept the
prisoner’s own recognisances to come up for judgment if called upon, but
the law does not seem to be applied so frequently as is desirable. The old
English system of recognisances, in which the guilty party deposits a sum
of money, is an excellent guarantee to society against his recidivism, and
is deserving of extension to all those cases to which it may prove
adapted. This plan has been adopted in the United States and in Denmark. A
very large proportion of small offenders can be dealt with adequately by
means of a fine. This should not be of too trifling a character when the
offence has been frequently repeated, and the means of the offender are
ample. Nor does it appear desirable that the offender should be allowed at
will to choose between fine and imprisonment. The notion of reparation
should be combined with the fine when possible, the offender, as Garofalo
proposes, paying an indemnity to the injured person, and a fine to the
community. With our abstract and impersonal method of dealing with crime,
we are much too apt to forget the recompense that is due to the injured
person. Féré has suggested that the State ought to undertake this
reparation; the community, he argues, has failed in its duty of protecting
one of its members, and it ought therefore to repair the injury which it
has not known how to prevent. Crime being largely the result of social
conditions, the damage it causes should be supported socially by the
society which generated the individual. A more practical first step,
however, seems to be a recognition that the criminal should be bound to
repair the damage he had caused. This reparation should be on a very
liberal scale, and with due regard to the anxiety or suffering inflicted
on the injured party. When the offender is not in a position to pay money,
there should, as Prins points out (and Sir Thomas More long before him),
be suitable provision to enable him to give so many days of his labour to
work out his penalty and reparation. In several European countries
imprisonment for mendicity, vagabondage, and other minor offences, has
been abolished, and compulsory work substituted: this is a reasonable
change.
In the slightest cases of all, every end of social protection should be
attained by a formal “caution.” The publicity which this involves is
itself, under modern conditions of life, a sufficient safeguard.
The special and very numerous class of habitual drunkards must be dealt
with by special methods. The method, if method it can be called, of
treating such cases by a few days’ imprisonment is glaringly ineffective.
It is a waste of public time and money, as well as a danger to the
individual himself and to society. Habitual inebriates can only be dealt
with fairly when they are recognised as diseased persons, to be treated on
rational principles, and to be saved, whether they will or not, from doing
injury to society and to themselves. It is incomprehensible that in so
drunken a country as England this question should not before now have had
serious attention, instead of being left to voluntary agency. To leave
habitual alcoholism and its results to voluntary agency is as reasonable
as it would be to leave the care and control of the insane to voluntary
agency. The case for the control and treatment of the inebriate is,
indeed, considerably stronger than that for controlling the insane.
To sum up briefly the points in the treatment of the criminal which have
been reviewed in this chapter:--
Capital punishment is disappearing. There is, however, no reason to hasten
unduly its complete extinction, because lifelong imprisonment, under
existing conditions, is frequently less humane, and is not of greater
value for purposes of social protection.
The prison needs to be made a far more active and thorough instrument of
social reformation than it is at present. Great circumspection must be
shown in selecting the individual whom it is desirable to send to prison,
but when selected he must be retained until there is reasonable
presumption that he will no longer be dangerous to society. In place of
mere routine and surveillance, he must be subjected to intelligent and
energetic treatment. While he should usually be guarded from contact with
his fellow-prisoners, it is desirable, with due restrictions, to promote
his intercourse with selected persons of the outside world. His
conditional liberation should be delayed until he can be placed in some
situation which will enable him to earn his own living. The plan of fixing
beforehand the period of the prisoner’s detention appears to have nothing
to recommend it, and should be entirely abolished.
In dealing with occasional criminals whom it is not necessary or desirable
to put into prison, liability to imprisonment should be substituted. The
system of recognisances and of fines to the community, together with
reparation to the injured individual, should be developed and extended to
all cases to which it may suitably be applied. When the offender is unable
to pay a pecuniary fine, he should not be imprisoned, but compelled to
give his work.
The class of habitual drunkards requires special and compulsory treatment
in special asylums.