the office, strolls over to the recreation room to await his work
assignment and never feels for one minute the influence of restraint,
except, perhaps, the realization that in the watch towers placed at
various points of vantage about the farm there is stationed a man--a
fellow prisoner--whose duty it is to notify headquarters if any
prisoner starts to leave the grounds.
The prisoner eats in a dining room and sleeps in a dormitory which
are kept spotlessly clean, and there is neither bar on the window nor
lock on the door. Each dormitory is occupied by about 200 men, and one
officer is all that is needed to maintain order.
“We do not say our plan is perfect,” said Superintendent Talkington,
“nor do we make any great claims about our ability to reform a man
during the short time he is here. But we do say this is the best manner
yet devised for handling them. We take a man from the gutter, and at
least make it possible for him to improve. We give him health, and
direction enough to get him into some employment at which he can earn
his living. Although we refuse to put forth any claims about how much
good we do for the man, we at least know that we do not injure him. And
that is more than can be said for any jail or prison. We aren’t running
any school for crime here. We do know that. _We also know that we can
make this institution self-supporting and a means of revenue for the
State._ What more can you ask?
“The wide-open policy of freedom, I believe, has been carried to the
extreme here. Although the great majority of men can be handled and
trusted in absolute freedom, there are, in a population of 700 men,
some who can never be given liberty. There is need for not more than 50
cells. Any farm colony ought to have them even if the cells are never
used. Even so, we are getting along very nicely without them, and it
shows to what great extent this policy can be carried successfully.
“We never had even punishment cells until a few days ago when four
were completed. We aren’t going to have to use them much, either.
Confinement on bread and water is the only form of punishment permitted
in this colony--no flogging, no dungeons, no ball and chain, no stripes.
“We have prisoners living down on the lower end of the farm working
under a prisoner-foreman. We see them only when we are making the
weekly round of inspection.”
One could not help but feel, in discussion with Mr. Talkington, that
one was listening to a practical man who is anything but the dreamer
or idealist usually found advocating so revolutionary a plan as the
one on which the superintendent is working. He made no claims to
super-knowledge in the handling of men. He had no illusions about the
matter. He knew the faults of the plan and he knew the virtues. When he
undertook the present work, his only assets were his experience as a
farmer and school teacher.
“I feel,” said Mr. Talkington, “that your officials, before spending
more than a million dollars on the old type of prison, should see this
farm and the one at Guelph, Ont. I’m confident they would change their
plans. This may be a new thing in this country, but it is not untried
in the old. The most famous of the European farm colonies is the one at
Witzwil, Switzerland. It has solved all the problems of handling men,
it pays thousands of dollars annually into the treasury of the canton
Berne and there has been no trouble experienced in competition with
free labor.
“The farm colony has come to America to stay, and I hope Detroit won’t
take any action which will postpone for perhaps half a century an
improvement they are entitled to now.”
One of the bad features of Indiana’s temporary arrangement is the lack
of opportunity to segregate prisoners into classes or groups. The
dormitories are too large and the facilities for recreation are very
limited.
“The men should be divided into smaller groups,” said the
superintendent, “and I believe the recreation room should be a part of
the dormitory. I would not place more than 25 to 50 men in each group.
That would give a chance to segregate the youths from the older men and
permit keeping apart the more dangerous type from the man who is here
on some comparatively trifling charge.
“Another of our greatest needs is the establishment of industries to
supplement the work on the farm. We are going to get these. There
should be a furniture factory, a canning factory, brick yard or other
suitable industries where the men can be worked when weather conditions
are bad or outside work slack.”
The greatest factor in the maintaining of discipline is the use of the
honor system. There are good jobs on the farm and bad ones. And the
good jobs go to the men who have the best records and have shown their
ability to take positions of responsibility.
“You can’t tell me that you can run any prison with any such sort of
discipline,” a prison superintendent recently told me. “There are some
men who must be strung up and there are some who must be spanked. If we
didn’t resort to extreme methods at times we would have a riot on our
hands all the time.”
The best answer to this is found in the record of the Indiana farm.
There hasn’t been a strike or a serious riot since the institution
was founded. There are no guards standing or sitting around idle. The
guards are working foremen who perform as much actual labor as any
prisoner. The employed guards have guns in their pocket, but the guns
are never used and some of them aren’t even loaded.
There is a provision in the State law of Indiana which permits the
drafting from the penitentiaries of trusties to take jobs as foremen,
sentinels and lookouts. Of course, this probably could not be done in
Detroit, because the house of correction is a city institution. But in
Indiana it assists materially in keeping down the payroll. It makes
this difference--the farm colony at Occoquan, Va., has a payroll of
about $5000 a month; the Indiana institution gets along with $1700.
And the two institutions are very much alike.--From _The Delinquent_,
March, 1917.
[A]THE CRIMINAL CODE OF PENNSYLVANIA.
WILLIAM E. MIKELL, MEMBER OF STATE COMMISSION TO REVISE THE CRIMINAL
CODE.
Perhaps, in the true sense of the term, there is no criminal “code” in
Pennsylvania. The whole body of the criminal law has never been reduced
to a written code in this state in the sense in which this has been
done in some of the States of the Union in which jurisdictions there
are no crimes except those specifically prescribed. * * *
At the common law, crimes were classified as felonies and misdemeanors.
Without going into nice historical questions we can fairly say that the
term “felony” was applied to the more heinous crimes, “misdemeanors”
to the more venial ones. In the statutory law of both England and of
this country these terms have in general been similarly employed. In
the Pennsylvania code the legislature has in the majority of cases in
defining each crime designated the crime a felony or a misdemeanor; and
following the general principle of the common law, affixed the stigma
of “felony” to the graver crimes. Viewing the code, however, as a
whole, there is an utter lack of principle in the grading of crimes as
felonies or misdemeanors, either according to the moral heinousness of
the offense, or the severity of the punishment.
Bigamy, with its attendant disgrace and illegitimacy, is a misdemeanor,
while embezzlement by a servant is a felony. For a clerk or agent
to embezzle--by the code called larceny--is a felony; for a banker,
trustee or guardian to embezzle, is only a misdemeanor. * * *
Administering a narcotic with intent to commit larceny, is felony;
assault and battery endangering the life of an infant, is a
misdemeanor. Blackmailing is only a misdemeanor, while receiving stolen
goods is a felony. If one in the heat of a fight, intending to disable
or maim his antagonist, should cut him ever so slightly, he is guilty
of a felony, but, if he “on purpose, and of malice aforethought by
lying in wait, shall unlawfully cut out the tongue, put out an eye,
cut off the nose * * * or cut off any limb” of his victim, he commits
only a misdemeanor. Also if he “voluntarily, maliciously and of purpose
bite off the * * * limb or member of another,” he is guilty of a
misdemeanor. Truly, there must have been giants in those days. The
effect of these two sections is to make it a graver offense to attempt
mayhem and fail, than to succeed.
The Grading of Penalties.
The work of the commissioners who framed the Code of 1860 shows an
utter lack of any consistent theory not only of grading the crimes as
felonies and misdemeanors, but also in grading the punishment fixed
for the various crimes. It may not be easy to do this in all cases.
Persons may intelligently differ as to whether perjury should be more
seriously punished than assault and battery, and whether larceny or
bigamy be deserving of the greater penalty. But it is difficult to see
why embezzlement by a consignee or factor should be punished with five
years’ imprisonment and embezzlement by a person transporting the goods
to the factor should be punished by one year’s imprisonment. * * *
Under the Act of 1860, having in possession tools for the
counterfeiting of copper coin is punished by six years’ imprisonment,
while by the next section the punishment for actually making
counterfeit copper coin is only three years, though it cannot be made
without the tools to make it. * * *
The distinction just mentioned is, however, no stranger than that made
by the code between a councilman on the one hand and a judge on the
other, in the provisions against bribery. Section 48 of the Act of
1860 provides that if any judge * * * shall accept a bribe, he shall
be fined not more than $1000 and be imprisoned for not more than five
years. But by Section 8 of the Act of 1874, a councilman who accepts
a bribe may be fined $10,000, ten times as much as a judge, and be
imprisoned the same number of years--five years. The statute also
provides that the councilman shall be incapable of holding any place
of profit or trust in this Commonwealth thereafter. But the convicted
judge is placed under no such disability.
Relations of Fine to Imprisonment.
In the case of almost every crime denounced by the code fine and
imprisonment are associated. In most cases the penalty provided is
fine and imprisonment, in some it is fine or imprisonment. In a few
cases imprisonment alone without a fine is prescribed, and in a few
others it is a fine alone without imprisonment. We seek in vain for
any principle on which the fine is omitted, where it is omitted; or
for a principle on which it is inflicted in addition to imprisonment
in some cases, and as an alternative to imprisonment in others. Thus
the penalty for exhibiting indecent pictures on a wall in a public
place is a fine of $300, but no imprisonment, while by the same act
the drawing of such pictures on the same wall carries a fine of $500
and one year’s imprisonment. Manslaughter carries a fine of $1000 as
well as imprisonment for twelve years, but train robbery and murder
in the second degree involve no fine, but fifteen and twenty years in
prison respectively. It cannot be the length of the imprisonment that
does away with the fine in this latter case, for the crime of aiding in
kidnapping may be punished with twenty-five years in prison, but also
has a fine of $5000.
More striking still, perhaps, is the lack of any relation between the
amount of the fine and the length of the imprisonment provided in the
code. In the case of some crimes the fine is small and the imprisonment
short, as in blasphemy, which is punished by a fine of $100 and three
months in prison, extortion and embracery punished with $500 and one
year. In a few the fine is large and the imprisonment long, as in
accepting bribes by councilmen, $10,000 and five years, and malicious
injury to railroads, $10,000 and ten years. But in others the fine is
small while the imprisonment is long and in others the fine large and
the imprisonment short.
Incomplete Crimes.
It is a general principle of criminal jurisprudence that “incomplete
crimes,” as they are called, such as attempt, and conspiracy to commit
a crime, should not be punished as severely as the full, completed
crime. It was on this principle that at common law an attempt to commit
even the gravest felony, such as murder, was only a misdemeanor. Other
codes maintain this principle. * * *
The Pennsylvania code has no general section on attempts, but in a
haphazard manner, in providing for some crimes, provides for the
attempt to commit the same, and in some cases has no provision for such
attempts. A study of those cases in which provision for punishing the
attempt is made, shows an entire absence of any theory or principle in
assessing the punishment. Thus the penalty for the attempt to commit
arson is the same as for the crime of arson itself; for the attempt to
commit robbery, the same as for the completed robbery; but the attempt
to commit murder is not punished with the same penalty as murder, viz.:
death, or twenty years’ imprisonment, but by seven years’ imprisonment
only.
Instances of Lack of Co-ordination in Drafting.
Two strikers separately determine to wreck a passenger train: one
removes a rail from the road over which a train is scheduled to pass;
another cuts the telegraph wire to prevent the train dispatcher from
stopping the train from running into a wreck. The first striker would
come within the terms of Section 7 of the Act of 1911 and could be
sentenced to pay a fine of $10,000 and suffer imprisonment for ten
years; the second man would come within the terms of Section 147 of
the Act of 1860 and could not be fined more than $500 or imprisoned
more than twelve months. * * *
If the executor made way with a horse belonging to the estate, his
maximum imprisonment would be still two years; but if the butler made
way with another horse he might receive ten years as a penalty. If a
mule would serve the butler’s purpose as well as a horse he had better
take the mule, for then he could not be sentenced for more than three
years; if the mule were not swift enough, however, he might choose an
automobile, for the maximum imprisonment for stealing an automobile is
the same as that for larceny of the mule, being less than one-third of
that for larceny of a horse.
If the driver of a public “coachee” by “wanton and furious driving or
racing” unintentionally breaks a chicken’s leg he may be punished by
five years’ imprisonment, the same punishment provided for attempted
rape, for mayhem, for counterfeiting, and for robbery; but if the
driver of a taxicab is guilty of the same assault on a member of the
feathered tribe he is not even indictable. If the driver of this
“coachee,” while so driving, should accidentally inflict the slightest
personal injury on another, he would be liable to greater punishment
than if he deliberately stabbed that other with intent to maim him,
or wilfully and maliciously exploded dynamite under him, thus doing
him serious bodily harm. This violates one of the cardinal principles
of criminal jurisprudence, viz., that crimes of negligence are not so
grave as crimes done with deliberate intent, a principle recognized
in other parts of the code in providing for murder and involuntary
manslaughter. * * *
The writer has attempted to point out in this paper some of the more
glaring and interesting defects in the code. He has by no means
exhausted them. There is a great need for a complete revision of the
code. It is a jumble of inconsistent theories; a great many sections
are badly drawn, others are obsolete; many are inconsistent, many are
in conflict; there is much overlapping due to different acts having
been passed at different times covering in part the same subject
matter, so that it cannot be told whether a given crime should
be punished under one section or another prescribing a different
punishment.
* * * * *
Governor Brumbaugh has appointed the following on the Commission
to revise the Criminal Code of the Commonwealth: Edwin M. Abbott,
Chairman, Philadelphia; Wm. E. Mikell, Secretary, Philadelphia; George
C. Bradshaw, Pittsburgh; Clarence E. Coughlin, Wilkes-Barre; Rex N.
Mitchell, Punxsutawney.
FOOTNOTES:
[A] From an article by Mr. Mikell in the University of Pennsylvania Law
Review, January, 1917. The article clearly indicates the urgent need of
revision of our criminal code.
AMERICAN PRISON ASSOCIATION.
ATTENDANCE.
The meetings of the American Prison Association in 1917 were held
in New Orleans, November 19-23. Outside of the State of Louisiana,
the registration of delegates and attenders amounted to 261, of whom
seven were from Canada, one from Mexico, one from Cuba and one from
Guatemala. One hundred and thirty-seven registered from Louisiana.
Outside of this State, Massachusetts enrolled the largest number,
thirty-two being accredited to the Bay State. Then followed New York,
with twenty-nine, and Pennsylvania was third with twenty-two, of whom
nine were Official Delegates. It must not be forgotten that there were
many attenders at these meetings who had not received appointment as
Official Delegates, but who were active and welcome participators in
the discussions. In 1916 and 1917, the Commonwealth of Pennsylvania has
been well represented, but for several years previous the attendance
from the Keystone State had, from a numerical point of view, been
rather insignificant.
THE PRESIDENT’S ADDRESS.
Dr. David C. Peyton, Superintendent of the Indiana Reformatory at
Jeffersonville, ably officiated as presiding officer of the various
sessions of the Association. He is evidently a believer in strict
discipline administered by the officials who are legally appointed as
the guardians of the offender, yet no one who visits the institution
over which he presides, would assert that the regulations are harsh or
unreasonable. His view of the Honor System would not involve government
by the inmates.
“In prison management there have developed two colossal evils. One
was peculiar to the past and the other in a measure characterizes
the present. Most of the evils that are associated with prison work
have come from these two roots. They are antipodal as east and west.
They are cruelty and sentimentality. As the first was the child of
ignorance, the second springs from half knowledge and is not the less
reprehensible. True reform will come, not by a softening and relaxation
in prison discipline, not by imputing to criminals qualities which
their whole activities have proven them to lack and the very absence of
which is the cause of their incarceration, not by making their pathway
smoother and easier, nor yet by touching it with the magic of romance.
If a little of the leaven of common sense were allowed to permeate the
situation it seems to me that the clouds in our pathway would lift
somewhat.
“Of course cruelty, the other bête-noir, is only named to be condemned,
and thanks to our even half-knowledge it has no place in modern prisons
except in isolated spots. But I doubt if ever cruelty was any more
cruel than a regime which threatens to become popular today. It seems
to me that prisons should be run for the purpose of training men for
sane living. If that is true, then they should in fact train these men
for sane living.
“A modern prison should be a beehive of industrial activity and should
be _more than self-supporting_. Indeed, men should be able to serve
their sentences and earn enough overtime money during their terms to
support their dependents--in part at least. A trade should be taught
when practicable, but even more important than a trade is the idea of
inculcating industrious habits. It is not a misfortune for men to have
to labor, but it is a blessing both for them and for us.
“Discipline should be strict but not arbitrary. The rules should be
based on experience and should be obviously sound.
“Punishment has a place in prison, but it should be logical; should, as
far as possible, flow as a natural consequence from the transgression
according to the pedagogical rule of Spencer.
“The industrial training should be correlated with the didactic
instruction and the prison library. The three should form the
tripartite educative force of the institution.”
THE HONOR SYSTEM.
As was naturally to be expected, the so-called Honor System received
a large share of attention, especially in the Wardens’ meetings. The
Wardens generally are opposed to that feature of the Honor System which
involves placing the discipline to any great extent in the hands of
the convicts. The experiments of Mr. Osborne at Auburn, Sing Sing and
Portsmouth are regarded as sporadic efforts largely affected by the
personality of a masterful, though sentimental, empiricist. Men who
have never governed themselves should not be elected to govern one
another. Mr. Erskine, of Connecticut, argued that it was wrong to base
any system on emotional appeal. “Twenty per cent. of the men in prison
are entirely bad and vicious; 20 per cent. would wield a good influence
if they had the opportunity, and the remaining 60 per cent. could be
swayed by either the good or the bad element.”
On the other hand it was stoutly contended that the prison was the
proper place for men to learn to govern themselves. Necessarily they
were confined to a limited area, and still subject to watchful care
by big-hearted, efficient advisers. Let them learn that discipline in
life is an essential feature of any community. Let them learn this
lesson by personal experimentation. Thus they may recover some sense
of self-respect. They will rejoin the outer world with some measure
of responsibility. They will return to freedom with a different
understanding of life.
Dr. Bernard Glueck, director of the psychological clinic at Sing Sing,
asserted that in general prison officials, through limitations to their
work, were not fully qualified to pass judgment on the subject, and had
not availed themselves of opportunities to carry out a comprehensive
system of self-government. He stated that such a system had proven to
be distinctly successful at Preston, California, and asked Mr. Calvin
Derrick, the founder of the School of Industry at Preston, to present
some account of this institution.
Mr. Derrick informed the Association that this California school has
developed its honor system to the point where 250 of the boys were
sent to the Sacramento fair alone, traveling through the country 250
miles, and returning without the loss of a single one. The boys have a
complete republic system of government, and conduct all of the work of
the school. A football team plays regular school and college teams of
the State, traveling without supervision.
It appeared to some of us who listened with intense interest to these
discussions that the difference in sentiment was rather one of degree
than of principle. Wherever any privileges are allowed and wherever
the trusty system is permitted, there is involved some measure of
self-government. One warden permits the prisoners to mingle together
on the base ball field. These men are on their honor. Another warden
might say that he would allow his prisoners to play and observe games
and leave the regulation of their conduct while on the field to the
men themselves. They are still on their honor and doubtless are aware
that their regulation of conduct must meet the approval of the warden.
Suppose we allow the men to impose penalties for minor delinquencies.
The warden still exercises his judgment on the punishment awarded. The
warden governs. The men may have more or less privileges, but they are
granted by the warden. It resolves itself into a question as to how far
such privileges may be granted. And no two wardens in the world will
agree precisely on this point.
For the last twenty years the trend has been getting away from the
brutality of the former systems, from the petty rules, from degrading
and humiliating treatment, and the avowed object of confinement has
been reiterated again and again to aim at reformation. We admit that
some wardens are more successful than others in accomplishing desired
results, and yet we must not expect them to adopt an entirely uniform
program. We must make due allowance for the personal equation involved,
for the individuality of the ruling authority. The warden who claims
that his system is perfect, and that he has nothing more to learn, is
recommended for removal.