What shall be done with confirmed and incorrigible offenders? For a good
many thousand years the world has been wrestling with this problem, and
in this year of grace it is seemingly very little nearer a rational
solution than when the first fraternal brawl sent one brother into his
grave, and another into exile with the perpetual brand of a murderer
blazing upon his terror-stricken brow.
The savage settles the matter with a tomahawk or a war club. The remedy
is at least effectual, and society in the kraal or the tepee does not
bother its dusky brain about the possible reform of the offender. Any
type of criminality that is inconvenient or unpopular is, therefore,
summarily buried in the nearest grave.
Up to the time of the Christian era, the savage and the civilized man
alike held substantially the same theories. The one idea that dominated
all criminal law was punishment. The statutes of Draco and Lycurgus
never harbored the thought of moral improvement, much less made
provision for the reform of the criminal. Roman law and Greek law were
little better. The one right which all offenders possessed was the right
to be punished. Reformation was entirely a personal matter, which
theoretically in rare instances was possible, to which the law, save in
capital cases, interposed no special obstacles, and to which it gave no
special encouragement.
With the advent of a new and more merciful dispensation, we find
gradually creeping in a belief that the criminal classes have some
rights which society is bound to respect, and that not the least
important of these is the right to reform. For two thousand years these
not necessarily conflicting ideas of reform and punishment have
travelled down the centuries in a medley of incongruous and often
contradictory systems of criminal law. As the better classes have
generally made and administered the law, it is not strange that the
elder and more savage idea has on the whole been dominant, and that,
taking the world together, the reform of criminals is still rather a
side issue than an object of far-reaching and systematic legislative
enactment.
Even the most optimistic student of penology would be compelled to admit
that our present methods of dealing with criminals are unsatisfactory to
the last degree. Our systems of punishment do not punish in any such
sense as to be a terror to evil-doers; our systems of reformation do not
reform. The whole thing goes on in a vicious round of self-perpetuating
infamy. The central idea of our modern penal system--and it is certainly
a very venerable one--is that in some way the world will be greatly
benefited by shutting up its law-breakers for a longer or shorter
period, feeding them liberally, giving them a period of enforced steady
habits and steady work, and after a while taking off this straight
jacket of compulsory morality, and turning them loose again with
improved criminal skill and sharpened appetites to prey upon society in
the old way.
The actual result of this crowding of more or less confirmed vice into
one concentrated aggregation, is simply to intensify the evil it was
intended to remedy. The convict who enters a prison cell for the first
time--perhaps as the result of some sudden and overpowering
temptation--a man who at heart is no better and no worse than his
neighbors, and who, if by any chance he had escaped conviction, would
have finished his life as an average citizen, as a friend and advocate
of the law--finds himself here in an entirely new environment.
Self-respect is gone. The old motive for honesty is gone. He enters the
new and stifling atmosphere of concentrated crime, and with it comes the
feeling that the world is all against him. It is his first offence, but
it is by no means likely to be his last. Every man he sees, save the
grim rifle-carrying guard who growls and swears at him, is a convicted
criminal. Every object that his eyes fall upon intensifies the lesson
that he is henceforth to be counted among the enemies of his race. Every
breath that he breathes reeks with the malaria of crime. He is now an
enlisted soldier in a warfare against right and law and social order.
He is in the devil's own training school. The seven other "spirits more
wicked than himself" are all around him. Whatever prison rules may say,
there are certain to be clandestine meetings, secret conferences, in
which the novice is initiated into the higher degrees of the freemasonry
of crime. Schemes of profitable law-breaking swarm in the teeming brains
of these wearers of the stripes, to be turned into actual deeds in "the
good time coming," when these apt pupils of the high school of depravity
shall be free again to make war upon the peace and welfare of the world.
Is it any wonder that this first offender comes out of prison a
confirmed criminal, and that "the last state of that man is worse than
the first"?
If the same business sense were used in this matter which is ordinarily
given to the management of great human concerns, we should soon find
some way of improving upon this discouraging condition of affairs. No
merchant in his senses would discharge a dishonest clerk for a term of
ninety days with the distinct understanding that he was to spend his
enforced vacation in the society of thieves and cutthroats, and at the
end of the time be taken back again into his old place as though nothing
had happened. The railroad president who should discharge a drunken
engineer, and then after six months give him hold of his old throttle
again, although it was in evidence that he had spent his retirement in a
whiskey saloon, studying under competent tuition the latest methods of
holding up trains, would be very apt to be bundled off at the next
meeting of the board of directors to manage railroads from the inside of
a lunatic asylum. Courts and judges and lawyers are about the only
people on the outside that do business in that way.
Is there no help for this state of things? Must the machinery of justice
go on forever grinding over the same vile grist, retrying and
reimprisoning old offenders, cultivating rather than repressing the
law-breaking instinct, passing on to still lower depths of depravity the
soul once caught in the meshes of crime, and at last dragging the great
masses of offenders down to one common level of hopeless and helpless
hostility to social order and law?
It is, of course, much easier to point out faults than to suggest
effective remedies. I am persuaded that some happy inspiration of
genius will yet give us methods, probably so simple that we shall wonder
that they have not always been used, by which many of the gravest evils
which disgrace our present system will be effectually removed. I think
the key to the whole problem will ultimately be found in one
word--_segregation_. Worcester defines "to segregate" "to gather in a
flock, to set apart, to separate from others."
In pursuance of this idea let us suppose, save in the case of certain
crimes that disclose confirmed and hopelessly vicious tendencies, that
all first offenders were counted in a class by themselves. For these
reformatories should be built, in which a complete segregation of the
various classes of law-breakers should be made, and that, too, with the
same idea uppermost which prevails in modern hospital practice, that
infectious cases should in all instances be especially isolated.
Criminal infection is as real and morally quite as disastrous as is
physically that of cholera or smallpox. So with this predominating idea
of segregation; and with a wise discrimination which might be difficult
in the beginning, but which experience would more or less perfectly
supply, the various classes of first offenders should be separated into
distinct and non-communicating families. Hard labor should here mean
hard labor. Rigid discipline coupled with coarse but wholesome food
should emphasize the fact that this was a place, not of comfortable
leisure, but of reformatory punishment. At the same time such
educational and moral influences as enlightened experience could supply
should be brought continuously to bear, to give new aims, inspire new
motives, and impart health, strength, and soundness to morally weak but
not necessarily hopelessly criminal natures.
Under enlightened management, commitment to such reformatories might be
made for an indefinite period, with the same limited discretion that the
law now gives to courts of justice, to be dependent largely upon the
behavior of the criminal, and to be determined not before, but after his
term of imprisonment began. The superintendent and board of managers
should, in that case, be clothed with large discretionary powers to
dismiss, to detain, to place in higher or lower classes, as their best
judgments should dictate, and as the actual and tried needs and progress
of reform in each individual case might demand. The vast, costly, and
architecturally imposing structures which are now denominated
"reformatories," and which in many cases might be much more
appropriately labelled "failures," if not discarded altogether, could be
supplemented by simple and inexpensive structures, giving abundant room
and light and air. With such conditions and surroundings, and under such
a system intelligently administered, it is reasonable to believe that no
small proportion of first offenders, who, under our present method,
drift into the hopelessly, and it might in many cases be added,
helplessly, criminal classes, would be restored to moral soundness and
self-respecting citizenship.
But with the most efficient system of reformation which human wisdom
could devise, there would still be a large contingent of incorrigible
offenders, who, from hereditary taint, bad environment, or other causes,
have cut themselves off from all retreat, burned the bridges behind
them, and enlisted in a life warfare against human society and law. Most
second offenders and those whose brutal past points to an irredeemable
future should properly be classed as life criminals, and with these,
society, while not forgetting "the quality of mercy," should deal with
firm hand and inexorable justice.
As our government is not so situated that penal colonies are
practicable, walled villages might be built with all the safeguards
which modern science and inventive skill can supply for the absolute and
permanent isolation of these "life criminals." In these penal villages,
various grades and classes should be placed each by itself. Behind these
never-opening gates, and under conditions that should relieve the world
at once and forever of their presence, these avowed and unrepentant
enemies of social and civil order should be compelled to "work out their
own salvation."
No great and costly prisons would be needed. Simple and inexpensive
cottages, each with its separate plot of ground, with furniture and
housekeeping arrangements on the most frugal scale, with absolute
necessaries in food and clothing, at least for a time, would be
required. The greatest possible liberty should be given to each
individual convict. The industrious should be assured of the full
benefit of their toil. Those who would not work, should find here the
same penalties for idleness as obtain in the world they had left. Here
might be gathered the whole round of industry--artisans, shops,
manufacturers of all kinds, aided by every appliance of modern
machinery. Schools, libraries, and even churches would by no means be
excluded from this life-convict home. There is no reason why such a
community of criminals might not ultimately become largely
self-supporting and self-governing. They could have their own courts,
their own lawyers, their own judges, their own system of penal law, and
their own machinery for its enforcement.
To each small company of men there should be allotted a cottage, which
they could call their own. As far as possible these men should be left
to themselves. The outworking of social and economic laws under such
conditions might sometimes be summary and savage, but it would
ultimately be salutary. Though for a while, save as it was held back by
the mailed hand of military power, crime might run riot, the instinct of
self-preservation would at last assert itself. The murderer does not
like to be murdered; the highway robber does not like to be robbed; all
classes of criminals object to taking their own medicine; and so it
would come about that, even out of elements the most incongruous and
unpromising, some form of social order would finally be evolved. It is
needless to say that the sexes should occupy separate villages. This in
itself would cut off one very formidable source of new recruits for the
army of crime. Indeed, it is hardly too much to predict that, if this
plan of permanent segregation and isolation were carried out for even a
single generation, crime would sensibly diminish, our overcrowded courts
would be relieved, taxation be lessened, and the staggering shoulders of
modern civilization be to some extent unburdened from one of the
heaviest loads they are now condemned to bear. It may seem an ungenerous
thing to say, but it is to be feared that the opposition to any such
plans would be likely to come from those whose familiarity with the
vices of the present system should best fit them to labor for and most
earnestly to desire its improvement. Enlightened physicians gladly join
in any scheme which promises to prevent or lessen disease, in spite of
the fact that their living depends upon its prevalence. So, enlightened
judges, lawyers, and court officers might be expected cordially to
approve of any system of moral hygiene which gave promise of efficiency
as a prophylactic against crime. It is to be feared, however, that there
would be a numerically large contingent who, like "Demetrius the
silversmith," would feel that "this our craft is in danger," and who
openly or secretly would do their best, as they have in a hundred
instances in the past, to prevent the lopping off of a single twig from
that wide-spreading tree of evil, whose fruit brings little scruple and
no small gain to the cunning craftsmen who manage the costly and
complicated machinery of the courts.
If such a system as has been rudely outlined were made absolutely
secure, and the power of pardoning boards removed or greatly restricted,
it might be wise to abolish the death penalty altogether. Juries might
then have fewer scruples, and acquittals upon technical grounds, in
spite of plain and abundant evidence, become less frequent. Mob law
feeds largely upon the belief that even the worst criminals stand in
little danger of punishment, but that "by hook or by crook"--mostly
"crook"--especially if they or their friends can command means to hire
lawyers and invoke the dilatory machinery of the courts, they are almost
certain to escape. Whatever, therefore, tends to render the punishment
of crime more speedy and certain is a direct discouragement to these
sudden and savage outbursts of popular indignation against crime.
In the classification of offenders and their assignment to different
penal villages, there would, no doubt, be some so atrociously and
fiendishly criminal that it would be a cruelty to others and a mistaken
kindness to them to permit them ever to go beyond their present prison
walls. By the plan suggested, the penitentiaries in most of the States,
now so crowded, while being relieved of a large part of their present
tenants, could still be utilized for the confinement of these pariahs of
crime.
Of course, in the working out of the plan suggested, there is abundant
room for all the skill and wisdom which past history and modern
experience can supply. Whether this or some better method shall finally
prevail depends on so many uncalculated and incalculable contingencies,
that he would be a very venturesome prophet who should attempt to
forecast the future. It does not, however, seem reasonable that, in all
the upheavals of modern thought, the questioning of old methods, and the
suggestions of new and better ones, which these final years of the
century are bringing, the treatment of the criminal classes shall be the
one question that defies solution, or that the new aeon which is soon to
open shall find us still bound to a system which is confessedly a
failure. Is it too much to hope that we can greet the opening of the
twentieth century with a lustrum of prison reform, which shall bring at
once the noblest mercy to the criminal, combined with absolute
protection to society from its most avowed and most persistent foes?