CHAPTER IX

ALTERNATIVES TO IMPRISONMENT

What is required--The case of the minor offenders--The incidence of

fines--The prevention of drunkenness--Clubs--Probation of offenders--

Its partial application--Defects in its administration--The false

position of the probation officer--Guardians required--Case of young

girl--The plea of want of power--Old and destitute offenders--Prison

and poorhouse.

If the present methods of treatment mainly result in the liberation of men

and women from prison in a condition that makes it difficult for them to

do well--sometimes more difficult than it was before they were sent

there--it follows (1) that no one should be sent to prison if there is any

other means to protect the public from him; and further (2) that no one

should be liberated from prison unless the community has some guarantee

that it will not suffer from him. In short, what happens to the prisoner

in prison is of secondary importance to the public. Of primary importance

is, what is likely to happen to them when he comes out. The first

consideration should be: How can you deal with people who have offended so

as to avoid making them worse and to ensure that they will behave better?

Unfortunately, one main concern of many is how they can make the culprit

suffer. One of the effects of retributive punishment is to make those who

undergo it less fit, physically or mentally, than they were before its

infliction. We must make up our minds whether we really desire to correct

the offender or not, and if we seek his correction we must be prepared to

throw overboard theories and practices which obstruct that end, whether

they are old or new.

An examination of the reports of the Prison Commissioners for Scotland

will suggest to anyone that a good deal might be done to diminish the

number of committals to prison. According to the last report published

(1910), there were 46,466 receptions of prisoners under sentence. As some

were in prison more than once during the year, the number of individuals

represented is probably about 23,000, and of these 9775 were in for the

first time. Their sentences ranged from under one day to two years. There

were 39,036 sentences of a month or less, and of these 22,696 were seven

days or less; 7949 of that number being of three days or less. These

people have not much time to get accustomed to their quarters before they

are liberated; and if there were the means, there is neither the time nor

the opportunity to make any thorough enquiry into their dispositions and

way of living, with a view to help them.

As for the nature of their offences, there were 14,644 committals for

breach of peace, disorderly conduct, etc.; 12,274 for drunkenness; 1982

for obscene language, etc.; and nearly all these are offences inferring

drunkenness. Where did they get the drink? Apparently it was not from the

public-houses, for from the tables it does not appear that anyone was sent

to prison for breach of certificate. If the source of supply could be

discovered and cut off, or at any rate made to flow less freely, it seems

obvious that there would be a much smaller prison population. But is there

any good purpose served by sending people to prison for a few days? It is

true the streets are rid of them, but such as are habituals go out simply

revived by the rest and keen as ever for drink. I say the habituals, for

time and again these return with sentences of two, three, five, or seven

days. As for the casual offender, it would be far better to let him off,

when he cannot pay a fine, than to send him to prison, thereby causing him

to lose his employment and bringing him to bad company. In 1909 over

40,000 were sent to prison in default of paying a fine. Time to pay fines

benefits many, but there are those who are too poor to be helped by it. At

present a fine is imposed as an alternative to imprisonment; and as the

public is only assured of the culprit's behaviour for so many days,

positive gain, financially and otherwise, would result from placing him in

bond outside a prison. At present, if the fine is not paid, the absurd

condition of affairs is this: that a person fined in, say, twenty

shillings or twenty days may disappear and not pay the fine in the time

allowed him; three months after he may be found, arrested, and sent to

prison for this failure to pay. The sentence of the court amounted to

this: that if he paid twenty shillings he would be at liberty to do as he

pleased, but if he failed to pay he would have his liberty restricted for

twenty days at the public expense; they to be secure from misconduct on

his part during that time. He has behaved for three times that period at

no expense to the public; why, then, should their hospitality be forced on

him? As long as people will behave outside prison there is no sense in

sending them inside. Whether they are likely to behave can only be

discovered after a more exhaustive and a different kind of enquiry than

has hitherto been made in each case.

Minor offences form the great majority of our committals, and drunkenness

is an element in most of the cases. If a man does not get drink to excess

he will not become drunk. Persons and premises are licensed for the

convenience of the public, and it is not for the public convenience that

anyone should be allowed to have a practically unlimited supply of liquor.

One of the troubles of the man that takes drink is that he is not in a

state to appreciate his own condition, and he is apt to imagine that he is

much more sober than he is. No respectable publican wants to make men

drunk; but he wants to make money out of his business, and beyond certain

limits he cannot be more particular than his neighbours. It is sometimes

very difficult to say when a man is drunk, but it is easy to tell when he

is not sober, and he is not entitled to the benefit of any doubt that may

exist. It ought to be the business of the vendor to refuse drink to a man

who has evidently had as much as is good for him. He may make mistakes,

but they will be on the right side if he has to pay for them.

The very desire to prevent men being supplied with drink to excess has

resulted in making the law, with regard to the supply of drink to

intoxicated persons, something very like a dead letter. I have known a man

to be convicted for being drunk and incapable at a police court, and

though it was shown that he left a public-house in that condition after

having had several drinks there, when the publican was brought to the same

court on a subsequent date, to answer a charge of breach of certificate in

respect that he had supplied drink to a man who was drunk, the charge was

found not proven. The fine for such a breach of certificate would not have

been nearly so great as the cost of defending the charge; but a conviction

would have resulted in the endorsement of the licence, and might have

caused its withdrawal. Now as the man depended on the licence for his

livelihood, this was practically a sentence of death. In these cases the

magistrates are exceedingly unwilling to convict and in consequence

charges are seldom made.

If the penalty inflicted in the police court did not result in a larger

penalty imposed by the licensing court, there would be less difficulty in

dealing with the licence holders; and if drunkenness is to be prevented

they must be dealt with. Of course a man may get drunk in a private house

or in a club; making it more difficult for him to become intoxicated in a

public-house would not prevent that; but even so, it would tend to keep

the streets free from disorder; and if a man will take more drink than he

can carry, it is alike better for his own health and for the public

convenience that he should do it in private. There have been many

complaints about clubs during recent years, and that some of them are vile

places there can be no question. The evidence given in the court as to how

these objectionable places have been conducted shows their character quite

clearly, but in the worst cases the very fact that such evidence was in

possession of the authorities is a grave reflection on their competence to

suppress disorder. In some cases the clubs were little better than dens of

thieves, to which half-intoxicated persons were lured to be robbed by

people whose character was well known to the police. Raiding them avails

little, but warning off those who would enter might avail much. Men in

uniform placed at the doors would act as a sign to warn the unwary. The

knave preys on the fool. Warn off his prey and he will starve.

If through a subsidence or otherwise there is a hole in a street into

which a man might stumble and break his leg, the place is barricaded off

and a watchman placed there to warn the careless. Nobody would think of

leaving the trap open, even though a sufficient ambulance service were

provided to carry off the injured. When a place that is known to be a trap

for the foolish is discovered, on the same principle it might be

profitable to warn those who would enter it, rather than to wait until

they had suffered loss and then seek to seize and convict those who had

robbed them. There are more ways of closing an ill-conducted club than by

withdrawing its licence; but after all has been said, most of the

drunkenness that disgraces our streets has not resulted from the

consumption of drink either in private houses or in clubs, in spite of

what the trade may say to the contrary. Indignation against clubs on the

part of liquor-sellers is not due to zeal for temperance, but springs from

jealousy of their own monopoly. They seem to think that men should not

take drink unless they are permitted to make a profit in the process; and

it is just this question of profit that lies at the root of any effective

dealing with the matter.

Our attempts to punish the drunkards are often ludicrous. It might not be

so ridiculous to try to get at those who make a profit off the drunkard.

He makes a loss; we make a loss; someone has profited. We punish him; we

punish ourselves; neither of us are profited at all. There is surely

something wrong here. Those who are incapable of taking care of

themselves, or who are disorderly in their conduct through drink, when

taken into custody by the police, might quite profitably be permitted to

go home when they are sober, unless their conduct is becoming a habit; in

which case some other method of dealing with them requires to be

considered. The disgrace of arrest will appeal as effectively to any

person with a sense of shame as proceedings before a magistrate would do.

When a fine--the cost of the trouble he has caused--has been inflicted on

such an offender, time for payment should always be allowed. A man will

never earn money in prison to pay the costs of his prosecution, but if

allowed to go about his business he may do so. Even if he can only earn

his living without paying a fine, behaving himself the while, he has done

more than it would have been possible for him to do in prison.

There has been a strong tendency of late years to deal with persons coming

before the courts for the first time, even when the charge is regarded as

a serious one, in some other way than by sending them to prison. They are

put on probation for a period, and if nothing is known against them for

that time they are discharged. Probation rightly managed would solve the

problem of their treatment in the great majority of cases. Imperfect as

the method employed at present is, many have been benefited because under

it they have escaped imprisonment. It is most commonly adopted in the case

of those who have committed offences against property; yet if the

principle on which it can be justified--the principle of substituting

correction for punishment--were intelligently recognised, it would be

applied in all cases, no matter what the offence; provided the offender

was regarded as a suitable subject on consideration of his history and

character. At present the offence more than the offender determines the

sentence; and there is a greater likelihood of a person who has committed

a petty offence being put on probation, than there would be if in the eye

of the law the offence he had committed were regarded more seriously.

The process is popularly described as giving the offender another chance.

It is a loose expression, which may mean anything. It sometimes does mean

giving him another chance to offend, and that is all. It is intended to

give him another chance to behave; and this assumes that he has already

had the chance; an assumption that is not always warranted if the facts

were considered. Clearly it is of no advantage to the public that an

offender should have a chance of again committing a breach of the law; and

if he is to be liberated from custody, it would be a reasonable proceeding

to see that he is placed under such conditions as would make it easier for

him to obey than to break the law. Putting him on probation ought not to

mean returning him to the conditions under which he failed to resist

temptation. Rather should it imply placing him under less unfavourable

conditions of life. What is actually done amounts to this, that the

offender, instead of being sentenced, on conviction, to imprisonment, is

ordered to appear in court after so many months, in order that his case

may be disposed of; and is allowed to be at liberty provided he consents

to live under certain conditions prescribed by the court, his conduct to

be reported on by a probation officer, whose duty it is to give him such

counsel and aid as is possible without expense to the rates.

The probation officer may be a police official; not necessarily a police

officer, but under the control of the police. Now if there is one thing

that is more clear than another in Glasgow and other urban areas in the

West of Scotland, it is that the poorer classes are suspicious of the

police and the machinery of the law that masquerades in the name of

justice--for it is a burlesque of justice to examine only one side of a

case; to decide how far the individual is to blame for offending against

the laws of the community, without making any enquiry into the question

how far the community is to blame for inducing the offence; and this is

felt, if it is not clearly expressed, by all who are liable to transgress.

A tacit conspiracy against the officers of the law is not only apparent in

the case of the poorer classes, but in the case of all classes, when they

are brought into conflict with it. The old Roman father who sacrificed his

son to the laws, and whom we were asked to admire for his heroism when we

were at school, is not a common phenomenon. He has left few descendants,

which is probably a good thing. Now the father strives to shield his son;

the sister puts the best face on her brother's conduct; and the neighbours

would far rather condone the fault of the culprit than expose his

misdeeds. They feel that our methods are wrong whenever they come

intimately in contact with them, and they obey their instincts and

feelings; that is all. They can see that it is wrong, that it is foolish,

to interfere with a man to make him worse, no matter under what pretence,

when they know the man; although they will readily admit that you must

punish the offender whom they do not know. So the probation officer may be

misled into a wrong report regarding the person under his charge when that

person behaves pretty much the same as he did before he was first

arrested, the conditions under which he is living not having undergone any

material change. The probation officer has his hands full, having quite a

number of people to visit and report upon daily. These people being widely

separated from one another geographically, he is merely discharging the

duties of an inspector; and he cannot give individuals the attention

their cases may require in order to their improvement.

Before a prisoner is discharged from the criminal lunatic department, the

authorities see that an approved guardian is provided for him outside. The

conditions on which he is allowed to be free are distinctly laid down, and

the guardian is given the same authority over him outside as the

attendants had when he was inside. If he breaks through any of the

conditions imposed on him the guardian may report his misconduct, when he

is liable to be brought back within the walls of the department. The same

thing may happen if complaints of his behaviour are made by neighbours or

associates. He has to be visited at intervals by some citizen of known

character and integrity, whose duty it is to certify that the patient is

fit to be free; and at unexpected times a medical officer from the

department may call and see him, his guardian, and others, in order that

there may be a reasonable security for the public.

It has been said that there is too much fuss made over these cases, but I

doubt it. The public security is the first consideration, and there has

seldom been any cause given for complaint on the part of the prisoner so

liberated. He is not set free and left to return to the associations to

which he has reacted badly in the past. He is not left to struggle for

existence and probably to fall under the struggle. He is placed under

conditions which make it easier for him to do well than to do ill; and if

he will not conform, his rebellion is checked at the beginning.

It is not the duty of his guardians and visitors merely to look for

evidences of his evil tendency. They have to help him to do well. These

guardians are usually people who, for some reason, have a friendly

interest in the man whose care they undertake. They are not paid for their

work--though they should be, if necessary, as it costs less to keep a man

outside than to keep him inside a lunatic asylum, and it is better to pay

people who have a personal interest in the subject of their care than to

pay those who have only an official interest in the persons with whom they

deal.

Contrast this state of affairs with probation as it is worked. In the one

case the guardian is carefully selected and is not appointed to act,

however willing he may be, if there is not ground for assuming that he is

also able. In the other case it is assumed that the guardians who have

failed to exercise supervision over the offender will be better able to do

so when the culprit has appeared before a magistrate. In both cases there

are official visits to the prisoner discharged on licence, and in the case

of the offender on probation these visits are more frequent.

In so far as the officer can do so, he tries to help the wrongdoer; but if

he has many under his charge the best will in the world cannot enable him

to do more than a little for each. This little is as much as is required

in many cases; and, imperfect as it is, the practice of the probation

system has been justified by a certain amount of success. Where it has

failed has been in those cases where the conditions laid down have been of

such a character that the offender is morally unable to conform to them. I

do not suggest that the conditions were in themselves unreasonable, or

that the standard of behaviour demanded has been too high judged by the

needs of the community, but only that the demand made on the offender was

greater than his circumstances permitted him to meet.

X 32 was a girl under fifteen years of age, rather big for her years,

judged by the standard of the district in which she was brought up. She

was employed as a message-girl and stole money from her employers. In the

aggregate she appropriated a considerable sum before she was found out.

She was put on probation, broke her bond, and was sent to a reformatory.

Two questions arose from her conduct. (1) Why did she steal? and (2) Why

did she break her bond? As to the first question, the answer was quite

apparent. She wanted little things which she could not get and she took

the money to get them. Her peculations were not observed and they

increased. Indeed, on one occasion she spent such a large sum of money in

treating a party of school friends, that it is difficult to understand why

the tradesman who executed her order did so at all, seeing what she was.

It is one of the commonest things for young people to help themselves to

things that are not their own. It is rarely considered thieving except

they take money, or goods to sell; but dishonest appropriation of property

is so common, not as a continued practice, but as an incident in the lives

of young people, that I question if one of those who read this has not at

some time or another in his or her life been guilty of it. This is too

frequently forgotten, and if it were remembered as it ought to be children

would be treated more wisely than hitherto has been done.

The girl in question was the eldest daughter of respectable working

people. Her conduct shocked them; but they were unfit to direct her, for

during the day her father was out working, and her mother had as much as

she could do to attend to her household and to care for her younger

children. The girl was sent back on probation to this home; a respectable

home, but a home where, in the nature of things, she could not receive

the care and guidance she required, having developed this propensity; and

she broke her bond simply because she was placed under conditions where

there was no reasonable probability of her keeping it. Accordingly she was

sent to a reformatory, at a cost to the community much greater than would

have been incurred had she been boarded out with the consent of her

parents under the care of some respectable person in the country, where

she could have been freed from the associations that had proved unsuitable

to her.

Money may be had, through channels provided by Parliament, for placing

people in institutions, reformatory and otherwise; while the statutes do

not provide for expenditure in the way suggested. Accordingly the reason

assigned for not doing things which obviously might be done with profit

is, that there are no powers, enabling them to act in the way suggested,

in the hands of the officials. This, if it is an excuse for inaction, is

not a valid one everywhere. When the parents of a child are willing to

surrender their rights as guardians on cause being shown, and to allow the

young person who has offended to be placed under control of some suitable

person, all the power required is in the hands of the judge.

It is recognised that parents, however respectable, may not be able to

give their children such attention as they may require should they

contract certain diseases; and there is seldom any difficulty in inducing

them to have their ailing child removed to an infirmary for treatment. On

the contrary, there are more who seek such treatment for their children

than can be accommodated. For want of a better term, what we may call a

moral ailment in a young person may as readily defy the resources of the

parents as any physical ailment could do; and there are many parents who

recognise the fact and would welcome assistance; but instead of helping

them we are content to wait until the offender gets worse, and then to

free the parent from all sense of responsibility and to make his position

more painful than it need be by placing the culprit in one of our

institutions. We may hope our action will do good, but the hope is not

founded on experience.

There is no law that hinders the community from assisting the needy among

its numbers, although there may be no provision of funds specifically for

this purpose. Whatever may be the case elsewhere, in Glasgow want of money

is not the reason why things are not done. We have a large fund called the

Common Good of the Corporation. Of late years it has been swollen by

profits on the city's tramways to such an extent that a bonus, under the

name of a reduction of rates, amounting to some £40,000 in one year, has

been divided among the ratepayers. From this same fund banquets are

provided; receptions are paid for; medals are supplied to magistrates; and

all sorts of expenditure are defrayed for which there is no authority to

rate. A small sum relatively is granted in aid of scientific and

charitable organisations, and about £500 is contributed to assist

discharged prisoners. If money can be had to defray the cost of food,

drinks, and cigars, for those who are quite able to pay for them

themselves, and that without any special Act of Parliament, surely it

could also be had to prevent offenders becoming hardened in their

offences, and to assist those who are willing to undertake the work of

guiding and training them in right ways of living. Doubtless the money

will be found when it is realised that it is at least as important to the

city that people should be kept out of prison and helped to do well, as it

is that the eminent and notable among the citizens should occasionally be

treated from the corporation funds.

How many could be assisted in this manner it is impossible to say, but so

far as can be judged a large proportion of those dealt with might be so

assisted at comparatively little cost. Whether the number be large or

small, however, it should be clearly understood that, the money being

there, if they are not helped, it is not for want of power nor for want of

means, but for some other reason. There are many things which the law does

not enjoin on the corporation; but there are many others that are worthy

which it does not prohibit those who are willing from doing; and if our

officials are to be encouraged to believe that they must do nothing to

help those who need assistance unless they get an Act of Parliament

authorising them to do it, we need not wonder if our rate of progress is

slow. The safe rule is to do the thing that needs doing, so long as there

is not a positive injunction against doing it. This will cause trouble, no

doubt, to the person who follows such a course of action; but I do not

believe that any public official who acts on this principle will fail to

receive public support and encouragement so long as he seeks to help

people to help themselves, whatever view those in authority may take of

his actions.

We are too much bound by precedent. Appropriate action is sometimes

checked by the consideration that the thing proposed has never been done

before. Of course that is no reason for not doing it now; but it takes the

place of a reason in far too many cases.

More interest is taken in proposals for dealing with the habitual offender

than in any others, although nobody is a habitual to begin with. He is

supposed to be the dangerous person. He is a professional plunderer; the

villain of the piece. But habitual offenders are not all great criminals.

There are those who live by stealing, having become more or less expert at

the business; but there are many offenders who, having become careless and

drunken, or who, being physically or mentally a little below the ordinary

standard of their class, are incapable of keeping a job even if they got

it. They are more a nuisance than a danger to their fellow-citizens. This

army of destitute persons should be dealt with by the destitution

authorities. Taken singly they are not difficult to control and direct,

and it would be cheaper and more profitable to have them planted out in

the country than to allow them to herd together in the cities, to be

successful neither in honest nor dishonest work, and serving as tools and

touts for the more skilful rogues.

The most helpless among them are the aged and infirm, some of whom have

only become submerged late in life, and all of whom are quite unable to

extricate themselves from the morass into which they have fallen. Now they

are in the prison; now in the poorhouse. When they can avoid either of

these institutions they live in lodging-houses or on the streets, where

their misery is a reproach to our civilisation. They are not interesting;

they are only disgusting; and it has been proposed to shut them up in the

poorhouse, because they go in and out too frequently.

Yet something might be learned from their point of view. They are sent to

prison because they commit petty offences. They are quite unfit to conform

to the rules of that institution and are not improved by residence there.

For a few days they are kept off the streets, but nobody pretends that

this could not be done more effectively and at less cost. If they prefer

the prison to the poorhouse, as is sometimes alleged, they do not prefer

the prison to the miserable and haphazard existence they drag out when

free; and as a matter of fact, when the weather becomes suddenly severe or

their ailments become more insistent, it is the parish, not the police, to

which they apply. They hope to be sent to a hospital. When they recover

sufficiently they are out again. May this not afford a presumption that

there is something wrong with the poorhouse? Is it reasonable to assume

that, having experienced all the bitterness and hardship due to their

poverty and destitution--that knowing they will be subjected to hunger,

rough usage, and exposure--they prefer to suffer these rather than trust

to the tender mercy officially meted out to them, and that they do this

through sheer cussedness? For my part, I do not believe that they are such

fools. If they prefer to forage for themselves, knowing the difficulty of

doing so, rather than live in the poorhouse, it is because, after

balancing the advantage and disadvantage, they have found that anything is

better for them than life in that glorious institution. To anyone who has

lived there, there is no ground for surprise that they should adopt this

conclusion.

In the prison a man may have too much privacy. In the poorhouse there is

none at all. The inmates having nothing in common but their misfortune,

poverty, and destitution, are housed together and live a barrack life.

Some attempt is made to classify them, as though you could sort out

people, in ignorance of their temperaments and tastes, by their record as

disclosed to an inspector. In our own experience people sort out

themselves. In any church or club you get people of the same age and of

similar good character. They can all be civil to one another if they meet

occasionally, but set any half-dozen of them to live together with no

relief from each other's company, and there will be rebellion inside a

week.

In the poorhouse the inmates have to suffer one another during the whole

time of their stay. Some of them rebel and leave the place, even though

they know that they will be more uncomfortable outside. They at least have

a change of discomfort. Surely the money spent in chasing them and in

keeping them would yield a better return if they were boarded out in

comfortable surroundings, where during the few remaining years of their

pilgrimage they might get fresh air and some space to move about in. Their

very feebleness makes their custody less difficult, and it is no profit to

them or to us to make it more arduous than it need be. If it be objected

that this would be treating them better than the "deserving poor," that is

only to remind us of the shameful way in which we have neglected those to

whom we give that name. The "deserving poor" are the uncomplaining poor;

and so long as they do not complain their deserts are likely to be

disregarded, even when quoted as a reproach to those whose behaviour has

attracted our censure.

The Criminal & the Community · 第 9 / 10 章