Criminal Sociology. Enrico Ferri 1905
The data of criminal anthropology and statistics, and the positive theory of responsibility which flows from them, although they have been systematised only by the positive school, are nevertheless too constantly in evidence not to have made their way into courts and parliaments.
I have already spoken of penal jurisprudence in its relations with criminal sociology, and may now cite a few examples of the more or less direct and avowed influence of the new data on penal legislation.
The legislators of to-day, vaguely impressed by statistical and biological, ethnographical and anthropological data, and still imbued with the old prejudice of social and political artificiality, were at first hurried into a regular mania for legislation, under which every newly observed social phenomenon seemed to demand a special law, regulation, or article in the penal code. Then, as Spencer has said in one of his most brilliant essays, the citizen finds himself in an inextricable network of laws, decrees, regulations and codes, which surround him, support him, fetter and bind him, even before his birth and after his death. For those whom M. Bordier calls the gardeners and trussmakers of society, forgetting the natural character of social phenomena, picture society as so much paste, to which the cook may give any form he pleases, whether pie-crust, dumpling, or tart.
Hence we see on all sides, side by side with dogma in the classical sciences of law, economy, and politics, empiricism in the laws themselves. And that is why the practical defects and constant impotence of repression in penal justice are the most eloquent arguments of the experimental school, which extends and strengthens its own theoretical inductions by the practical reforms which it suggests.
A first example of the influence more directly exercised by the new ideas in penal legislation is furnished by the proposal already realised in the penal laws of Holland, Italy, &c., of two parallel systems of punishment by detention–one for the graver and more dangerous crimes, and the other, “simple detention,” or custodia honesta (“as a first-class misdemeanant”), for contraventions, involuntary offences, and crimes not inspired by the baser passions.
Similarly, the enumeration contained in certain codes, as in Spain, and in the old Mancini draft of a penal code in Italy, of the main aggravating and extenuating circumstances common to all crimes and offences, such as the antecedents of the accused, venial or inexcusable passion, repentance and confession of a crime, extent of injury or the like, is only an elementary and empiric form of the biological and psychological classification of criminals.
Thus also the foundation of asylums for the detention of lunatic criminals, in spite of their being acquitted of moral responsibility; the more and more vigorous, but often too empirical measures against the progressive increase of recidivism; the proposed repressive measures as alternatives to short terms of detention; the reaction against the exaggerations of cellular confinement, which I regard as one of the aberrations of the nineteenth century, are all manifest proofs of the more or less avowed and logical influence of the data of criminal biology and sociology on contemporary penal legislation.
These practical reforms, which, when grafted on the old trunk of the classical theories of crime and punishment, are mere arbitrary and misplaced expedients, really represent, when they are logically co-ordinated and completed, the new system of social defence against crime, which is based on the scientific data and inductions of the positive school, and which it is therefore necessary for us to trace out from its foundations.
In the first place, whilst the positive theories largely reduce the practical importance of the penal code, yet they do more to increase the importance of the rules of penal procedure, which are intended to give practical and daily effect to penal measures, for the defence of society against criminals. For, as I maintained in the Italian Parliament, if the penal code is a code for evil- doers, that of penal procedure is a code for honest people, who are placed on their trial but not yet found guilty.
This is all the more true because, if it is possible to have penal codes whose machinery of psychological coercion is planted on a platonic platform of penitentiary systems written out fair in their symmetrical clauses, but still non-existent, as is the case in Italy, this is not possible in regard to penal procedure. The regulations of the code of “instruction” must of necessity be carried out by a judicial routine. The penal code may remain a dead letter, as, for instance, when it says that punishment by detention is to be inflicted in prisons constructed with cells; for, happily, the cells necessary in Italy for fifty or sixty thousand prisoners (or in France for thirty or forty thousand) are too expensive to admit of the observance of these articles of the penal code–which nevertheless have cost so many academic discussions as to the best penitentiary system: “Auburn,” “Philadelphian,” “Irish,” or “progressive.” In the organisation of justice, on the other hand, every legal regulation has its immediate application, and therefore reforms of procedure produce immediate and visible results.
It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the certitude and promptitude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure.
Passing over special and technical reforms which even the classical experts in crime demand in the systems of procedure, and often rather on behalf of the criminals than on behalf of society, we may connect the positive innovations in judicial procedure with these two general principles:–(1) the equal recognition of the rights and guarantees of the prisoner to be tried and of the society which tries him; and (2) the legal sentence, whereof the object is not to define the indeterminable moral culpability of the prisoner, nor the impersonal applicability of an article in the penal code to the crime under consideration; but the application of the law which is most appropriate to the perpetrator of the crime, according to his more or less anti- social characteristics, both physiological and psychological.
From Beccaria onward, penal law developed by reaction against the excessive and arbitrary severity of the Middle Ages–a reaction which led to a progressive decrease of punishments. Similarly official penal procedure in the nineteenth century has been, and continues to be, a reaction against the mediaeval abuses of the inquisitorial system, in the sense of a progressive increase of individual guarantees against the domination of society.
As we considered it necessary in the interests of social self- defence, in the case of criminal law, to combat the individualist excesses of the classical school, so in regard to penal procedure, whilst admitting the irrevocable guarantees of individual liberty, secured under the old system, we think it necessary to restore the equilibrium between individual and social rights, which has been disturbed by the many exaggerations of the classical theories, as we will now proceed to show by a few examples.
The presumption of innocence, and therewith the more general rule, “in dubio pro reo,” is certainly based on an actual truth, and is doubtless obligatory during the progress of the trial. Undetected criminals are fortunately a very small minority as compared with honest people; and we must consequently regard every man who is placed on his trial as innocent until the contrary has been proved.
But when proof to the contrary is evident, as, for instance, in the case of a flagrant crime, or of confession confirmed by other elements in the trial, it seems fit that the presumption should cease in view of absolute fact; and especially when we have to do with habitual criminals.
Even the criminals of this class whom I have questioned recognise a presumption of the opposite kind. “They have convicted me,” said an habitual thief, “because they knew I might have done it, without any proof; and they were in the right. You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered.” And the ironical smile of several of these prisoners, condemned on circumstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. This might be good for an occasional criminal, or a criminal of passion, but would be absurd and dangerous for habitual criminals and old offenders.
The exaggerations of the presumption “in dubio pro reo” are due to a sort of mummification and degeneracy of the legal maxims, whereby propositions based upon observation and generalisation from existing facts continue in force and are mechanically applied after the facts have changed or ceased to exist.
What reason can there be for extending provisional freedom, pending an appeal, to one who has already been found guilty and liable to punishment for a crime or offence, under sentence of a court of first instance? To presume the innocence of every one during the first trial is reasonable; but to persist in a presumption which has been destroyed by facts, after a first condemnation, would be incomprehensible if it were not a manifestly exaggerated outcome of classical and individualist theories, which can only see a “victim of authority” in every accused person, and in every condemned person also.
Another point is that of acquittal in case of an equality of votes, especially where born and habitual criminals are concerned. I think it would be much more reasonable to restore the verdict of “not proven,” which the Romans admitted under the form of “non liquet,” as an alternative to “absolvo” and “condemno,” and which may be delivered by juries in Scotland. Every one who has been put on his trial is entitled to have his innocence declared, if it has been actually proved. But if the proofs remain incomplete, his only right is not to be condemned, since his culpability has not been proved. But it is not the duty of society to declare him absolutely innocent, when suspicious circumstances remain. In this case the only logical and just verdict is one of “not proven.” Such a verdict would obliterate the shadow of doubt which rests on persons who have been acquitted, by reason of the identical verdicts in cases of proved innocence and inadequacy of proof, and on the other hand it would avoid the tendency to compromise, under which judges and juries, in place of acquitting when the proof is insufficient, sometimes prefer to convict, but make the punishment lighter.
Another case of exaggeration in the presumption of innocence is afforded by the regulations as to contradictory or irregular verdicts, which may be corrected only when there has been a conviction; whilst if the error has led to the acquittal of an accused person, it cannot be put right. The influence of the individualist and classical school is here manifest, for, as M. Majno says, “the justice of sentences rests as much on just condemnations as upon just acquittals.” If the individual has a right to claim that he shall not be condemned through the mistake or ignorance of his judges, society also has the right to demand that those whose acquittal is equally the result of mistake or ignorance shall not be allowed to go free.
On the same ground of equilibrium between the rights of the individual and the rights of society, which the positive school aims at restoring, something must be said as to the regulation by which, if the appeal is brought by a condemned person, the punishment cannot be increased. One classical expert in an official position would not even give the right to appeal at all.
Now if appeal is allowed for the purpose of correcting possible mistakes on the part of the original judges, why must we allow this correction in mitigation, and not in increase of punishment? And to this practical assurance of the condemned person that he has nothing to fear from a second trial, which seems to have been given to him for the sole purpose of encouraging him to abuse his power, since appeals are too often a mere dilatory pretext, there is a pendant in the right of the public prosecutor to demand a re- hearing, but only “in the interest of the law, and without prejudice to the person acquitted.”
A last instance of the same kind of protective regulation for the protection of evil-doers is to be found in the new trials which are permitted only in cases where there has been a condemnation, and that on arbitrary and superficial grounds. Most of the classical commentators on procedure do not dream of the possibility of revision in the case of acquittals, and yet, as Majno justly says, “even if he has profited by false witness, forged documents, intimidation or corruption of a judge, or any other offence, the acquitted person calmly enjoys his boast, and can even plume himself on his own share in the business without
fear of being put on his trial again.” The Austrian and German codes of procedure admit revision in cases of acquittal; and the positive rule in this connection ought to be that a case should be re-heard when the sentence of condemnation or acquittal is evidently erroneous.
From the same principle of equality between the guarantees of the individual criminal and of honest society we infer the necessity of greater strictness in the indemnification of the victims of crime. For the platonic damages now added to all sorts of sentences, but nearly always ineffectual, we believe that a strict obligation ought to be substituted, the operation of which should be superintended by the State, in the same way as the other consequence of the crime, which is called the punishment. I will return to this when I trace the outline of the positive system of social defence against criminals.
The positive school, precisely because it aims at an equilibrium between individual and social rights, is not content with taking the part of society against the individual. It also takes the part of the individual against society.
In the first place, the very reforms which we propose for the indemnification of the victims of crime, regarded as a social function, as well as the operation of the punishment, have an individualist character. The individualism of the classical school was not even complete as a matter of fact; for the guarantees which it proposed took account of the individual criminal only, and did not touch his victims, who are also individuals, and far more worthy of sympathy and protection.
But, beyond this, we may point to three reforms as an instance of the positive and reasonable guarantees of the individual against the abuse or the defects of social authority. Of these reforms two have been put forward by the classical school also, but, like criminal lunatic asylums, alternatives for short terms of imprisonment, and so on, they have generally remained inoperative, for they are not in harmony with the bulk of traditional theory, and only in a positive system have they any organic and efficacious connection with the data of criminal sociology. I refer to the exercise of popular opinion, the correction of judicial mistakes, and the transfer of sundry punishable offences to the category of civil contraventions.
The institution of a Ministry of Justice corresponds to the demands of general sociology, which exacts division of labour even in collective organisms, and to those of criminal sociology, which requires a special and distinct organ for the social function of defence against crime. Indeed it has become indispensable as a necessary judicial organ, even in nations like England which have not yet formally established it. So that, far from confounding the Public Prosecutor with the judicial body, we see the necessity of giving to this office a more elevated character and a distinct personality, with ampler guarantees of independence of the
Nevertheless the action of the Ministry of Justice, as now commonly organised, may be inadequate for the protection of the victims of crime, either indirectly through the insufficient number of its functionaries, or directly, through the functional defect insisted on by M. Gneist, “party spirit or prejudice in favour of the governing powers.” The latter, indeed, notwithstanding M. Glaser’s objection that government pressure is impossible, have no need to give special instructions, of a more or less compromising character, in order to exercise a special influence in any particular case. There is no necessity for anything beyond the conservative spirit natural to every institution of the State, or the principle of authority which is a special form of it, apart from the less respectable motives of interested subservience to such as are in office and dispense promotion.
Hence it will be useful, in initiating criminal proceedings, to add to the action of a Public Prosecutor (but not to substitute for him) the action of private persons.
Criminal proceedings by citizens may take two forms, according as they are put in operation only by the injured person or by any individual.
The first mode, already allowed in every civilised nation, needs amendment in various ways, especially in regard to the subordination of the penal action to the plaint of the injured person, which ought to be restrained, and even abolished. In fact, whereas this right has hitherto been regulated by law only in view of the legal and material gravity of the offence, it should in future be made to depend on the perversity of the offender; for society has a much greater interest in defending itself against the author of a slight offence if he is a born criminal or a criminal lunatic, than in defending itself against the author of a more serious crime, if he is an occasional criminal or a criminal of passion. And the necessity of bringing a private action in regard to certain offences is only a source of abuses, and of demoralising bargains between offenders and injured persons.
On the other hand, this prosecution by a citizen who has been injured by a crime or an offence ought to have more efficacious guarantees, either for the exercise of the rights of the injured person, or against the possible neglect or abuse of the Public Prosecutor. If, indeed, he is obliged to take up every charge and action, he is also (in Italy and France, but not in Austria or Germany, for instance) the only authority as to penal actions, and consequently as to penal judgments.
In Italy, out of 264,038 cases which came before the Public Prosecutor in 1880, six per cent., or 16,058, were “entered on the records,” or, in other words, they were not followed up; and in 1889, out of a total of 271,279, the number of unprosecuted cases was 27,086, or ten per cent. That is, the number had almost doubled in ten years.
In France the annual average of plaints, charges, and trials with which the Public Prosecutor was concerned stood at 114,181 in the years 1831-5; at 371,910 in 1876-80; and at 459,319 in 1887. And the cases not proceeded with were 34,643, or thirty per cent., in 1831-5; 181,511, or forty-eight per cent., in 1876-80; and 239,061, or fifty-two per cent., in 1887. That is to say, their actual and relative numbers mere nearly doubled in fifty years.
Is it possible that in ten, or even in fifty years, the moral conditions of a nation, and its inclination to bring criminal charges, should be so modified that the number of cases devoid of foundation should have been almost doubled? It is certain that in different nations and different provinces there are varying degrees of readiness to bring charges against lawbreakers rather than to take personal vengeance. But in one and the same nation this vindictive spirit and this readiness to bring charges cannot vary so greatly and rapidly, especially within ten years, as in Italy; for the persistence of popular sentiment is a well- known fact. It is rather in the disposition of the functionaries of the Ministry of Justice, which is far more variable, that we must look for an explanation of this fact, which is also accounted for by the tendency to diminish the statistical records of crime.
Now, why must the citizen who lodges a complaint of what he considers a crime or offence submit to the decision of the Public Prosecutor, who has allowed his action to drop? This consideration has led to the subsidiary penal action, already allowed in Germany and Austria, and introduced in the draft codes of procedure in Hungary, Belgium, and France, which is a genuine guarantee of the individual as against the social authority. We must not, however, deceive ourselves as to the efficacy or frequency of its operation, especially in the Latin nations, which have none too much individual initiative.
The second form of private prosecution is that of the “popular punitive action,” which existed in the Roman penal law–which, it may be said in passing, is not so insignificant as the classical school has supposed. The statement of M. Carrara, too often repeated, that “The Romans, who were giants in civil law, are pigmies in penal law,” is not in my opinion correct. It is true that the Roman penal law was not organised in a philosophical system; but it exhibits throughout the wonderfully practical judgment of the Roman jurisconsults; and indeed one cannot see why they should have lost this sense when dealing with crimes and punishments. On the other hand, I am inclined to think that the importance of the Roman civil law has been exaggerated, and that the spirit of the corpus juris springs from social and economic conditions so different from our own that we can no longer feel bound to submit to its tyranny. The penal law of the Romans, however, contains several maxims based on unquestionable common sense, which deserve to be rescued from the oblivion to which they have been condemned by the dogmatism of the classical school. Examples of these are the popular punitive action; the distinction between dolus bonus and dolus malus, which belongs to the theory of motives; the stress laid upon intentions rather than upon their actual outcome; the law of exceptio veritatis in cases of slander, which under the pharisaism of the classical theory serves only to give immunity to knaves; the penalty of twofold or threefold restitution for theft, in place of a few days or weeks in prison; the condemnation of the most hardened criminals to the mines, instead of providing them with cells, as comfortable as they are ineffectual–apart from the consideration that the firedamp in mines and the unhealthiness of penal settlements would be less mischievous if their victims were the most dangerous criminals rather than honest miners and husbandmen.
To return to the popular penal action, it is so commonly advocated, even by the classical school, that it is necessary to say another word on the subject.
Gneist, from his special point of view, proposed that this action should be introduced into penal procedure, as against electoral and press offences, offences against the law of public meetings and associations, and the abuse of public authority. But I consider that this action would be a necessary guarantee, in the case of all crimes and offences, for a reasonable and definite adjustment of the rights of the individual and of society.
Another reform, tending to a more effective guarantee of individual rights, is the revision of judicial errors in the interests of all who are unjustly condemned or prosecuted. Such a reform has been advocated also by several members of the classical school; but it seemed only too likely to remain with them a mere benevolent expression of opinion; for it can only be carried into effect by curtailing imprisonment, and by a more frequent and stringent infliction of fines, as advocated by the positive school.
Sanctioned in some special cases, as an exceptional measure–as, for instance, in the last century by the Parliament of Toulouse, and in our age by the English Parliament–compensation for judicial errors was rendered necessary in France at the end of the eighteenth century, after a series of unjust condemnations, even death sentences, which led Voltaire and Beccaria to demand the abolition of capital punishment. In 1781 the Society of Art and Literature at Chalonssur-Marne offered a prize for an essay on the subject, and awarded it to Brissot de Warville, for his work, “Le Sang Innocent Venge.” In the records of the Etats Generaux there were many votes in favour of this reform, which Louis XVI. caused to be introduced on May 8, 1788. In 1790 Duport brought in a measure in the Constituent Assembly; but it was rejected after a short discussion in February, 1791, during which the same practical objections were urged as have been repeated up to the present time. Nevertheless, the Convention decreed special indemnities, as, for instance. a thousand francs in 1793 for one Busset, “for arbitrary imprisonment and prosecution.” In 1823 the above-named Society at Chalonssur- Marne proposed the same subject for an essay; and it has been the object of sundry proposals, all rejected, as in 1867 during the discussion on criminal appeals, on amendments moved by Jules Favre, Richard, and Ollivier; and again in 1883 by Depute Pieyre, and in 1890 by Depute Reinach.
This reform has been advocated by Necker, amongst other writers, in his memoir on “Financial Administration in France,” and by Pastoret, Voltaire, Bentham, Merlin, Legraverend, Helie, Tissot, and more comprehensively by Marsangy in his “Reform of the Criminal Law” (1864). Marsangy advocated many other practical reforms which have since been adopted, in substitution for the objectionable short terms of imprisonment. More recently the subject has been treated in France by the magistrates Bernard, Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines, Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.
In Italy there was a notable precedent for this reform in the Treasury of Fines, established for Tuscany in 1786, and for the kingdom of the Two Sicilies in the penal code of 1819, for the purpose of creating a fund for compensation in cases of judicial error. In 1886 Deputy Pavesi brought in a measure which was not discussed; and this indemnification, which had already been proposed in 1873 by De Falco, keeper of the seals, in his draft of an Italian penal code, was not included in subsequent Bills, mainly on account of the financial difficulties. Amongst writers on criminology, it was advocated in Italy by Carrara, Pessina, and Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and others, and more recently by M. Garofalo, in his report to the third National Congress on Law, at Florence, in September, 1891.
Amongst existing laws, indemnification for judicial errors, whether limited to cases in which the innocence of condemned persons can be proved, or extended to persons wrongfully prosecuted, is included in the penal codes of Hungary and Mexico, and by special laws in Portugal (1884), Sweden (1886), Denmark (1888), and especially in Switzerland, in the cantons of Fribourg, Vaud, Neuchatel, Geneva, Bale, and Berne.
The legal principle that the State ought to indemnify material and moral injury inflicted by its functionaries, through malice or negligence, on a citizen who has done nothing to subject himself to prosecution or condemnation, cannot be seriously contested. But the whole difficulty is reduced to deciding in what cases the right to indemnification ought to be recognised, and then to providing a fund out of which the State can discharge this duty.
For the latter purpose it would be necessary to include an adequate sum in the Budget. This was done in Bavaria, in 1888, by setting apart 5,000 marks annually; and the first who profited by this provision received a pension of 300 marks per annum, after being rendered incapable of work by seven years’ imprisonment for a crime which he had not committed. But if the policy of retrenchment imposed on the European States by their insane military expenditure and their chronic wars prevents the carrying out of this proposal, there is the Italian precedent of the Treasury of Fines, which, with the fines inflicted, or which ought to be inflicted on convicted persons, and the product of prison labour, would provide the necessary amount for the indemnities which the State ought to pay to innocent persons who have been condemned or prosecuted, as well as to the victims of offences.
As for the cases in which a right to indemnification for judicial errors ought to be acknowledged, it seems to me evident in the first place that we must include those of convicted persons found to be innocent on a revision of the sentence. Amongst persons wrongfully prosecuted, I think an indemnity is due to those who have been acquitted because their action was neither a crime nor an offence, or because they had no part in the action (whence also follows the necessity of verdicts of Not Proven, so as to distinguish cases of acquittal on the ground of proved innocence)–always provided that the prosecuted persons have not given a reasonable pretext for their trial by their own conduct, or their previous relapse, or their habitual criminality. The third proposition of the positive school in regard to individual guarantees, which was also advanced by M. Puglia, is connected with reform of the penal code, and especially with the more effectual indemnification of the victims of crime. The object is to prune the long and constantly increasing list of crimes, offences, and contraventions of all acts which result in slight injury, committed by occasional offenders, or “pseudo- criminals”–that is, by normal persons acting merely with negligence or imprudence. In these cases the personal and social injury is not caused maliciously, and the agent is not dangerous, so that imprisonment is more than ever inappropriate, unjust, and even dangerous in its consequences. Deeds of this kind ought to be eliminated from the penal code, and to be regarded merely as civil offences, as SIMPLE theft was by the Romans; for a strict indemnification will be for the authors of these deeds a more effectual and at the same time a less demoralising and dangerous vindication of the law than the grotesque condemnation to a few days or weeks in prison. It will be understood that the classical theory of absolute and eternal justice cannot concern itself with these trifles, which, nevertheless, constitute two-thirds of our daily social and judicial existence; for, according to this theory, there is always an offence to be visited with a proportionate punishment, just as with a murder, or a highway robbery, or a slanderous word. But for the positive school, which realises the actual and practical conditions of social and punitive justice, there is on the other hand an evident need of relieving the codes, tribunals, and prisons from these microbes of the criminal world, by excluding all punishments by imprisonment for what Venturi and Turati happily describe as the atomic particles of crime, and by relaxing in some degree that monstrous network of prohibitions and punishments which is so inflexible for petty transgressors and offenders, but so elastic for serious evil-doers.
The reforms which we propose in punitive law are based on the fundamental principle already established on the data of anthropology and criminal statistics. If the ethical idea of punishment as a retribution for crime be excluded from the repressive function of society, and if we regard this function simply as a defensive power acting through law, penal justice can no longer be squared with a minute computation of the moral responsibility or culpability of the criminal. It can have no other end than to prove, first, that the person under trial is the author of the crime, and, then, to which type of criminals he belongs, and, as a consequence, what degree of anti-social depravity and re-adaptability is indicated by his physical and mental qualities.
The first and fundamental inquiry in every criminal trial will always be the verification of the crime and the identification of the criminal.
But when the connection of the accused and the crime is once established, either the accused produces evidence of his honesty, or of the uprightness of his motives–the only case in which his acquittal can be demanded or taken into consideration–or else it is proved that his motives were anti-social and unlawful, and then there is no place for those grotesque and often insincere contests between the prosecution and the defence to prevent or to secure an acquittal, which will be impossible whatever may be the psychological conditions of the criminal. The one and only possible issue between the prosecution and the defence will be to determine, by the character–of the accused and of his action, to what anthropological class he belongs, whether he is a born criminal, or mad, or an habitual or occasional criminal, or a criminal of passion.
In this case we shall have no more of those combats of craft, manipulations, declamations, and legal devices, which make every criminal trial a game of chance, destroying public confidence in the administration of justice, a sort of spider’s web which catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under the positive system of procedure; but, instead of being the exclusive concern of the judge it will only be the ground of procedure, and one symptom amongst others of the depravation and re-adaptability of the criminal, who will himself be the true and living subject of the trial. As it is, the whole trial is developed from the material fact; and the whole concern of the judge is to give it a legal definition, so that the criminal is always in the background, regarded merely as the ultimate billet for a legal decision, in accordance with some particular article in the penal code–except that the actual observance of this article is at the mercy of a thousand accidents of which the judge knows nothing, and which are all foreign to the crime, and to the criminal.
If we rid ourselves of the assumption that we can measure the moral culpability of the accused, the whole process of a criminal trial consists in the assemblage of facts, the discussion, and the decision upon the evidence. For the classical school, on the other hand, such a trial has been regarded as a succession of guarantees for the individual against society, and, by a sort of reaction against the methods of legal proof, has been made to turn upon the private conviction, not to say the intuition, of the judge and counsel.
A criminal trial ought to retrace the path of the crime itself, passing backward from the criminal action (a violation of the law), in order to discover the criminal, and, in the psychological domain, to establish the determining motives and the anthropological type. Hence arises the necessity for the positive school of reconsidering the testimony in a criminal case, so as to give it its full importance, and to reinforce it with the data and inferences not only of ordinary psychology, as the classical school has always done (Pagano for instance, and Bentham, Mittermaier, Ellero, and others), but also, and above all, with the data and inferences of criminal anthropology and psychology.
In the evolution of the theory of evidence we may distinguish four characteristic stages, as M. Tarde observed–the religious stage, with its ordeals and combats; the legal stage, accompanied by torture; the political stage, with private conviction and the jury; and the scientific stage, with expert knowledge of experimental results, systematically collected and studied, which is the new task of positive procedure.
We must glance at each of the three elements of the criminal trial: collection of evidence (police and preliminary inquiry); discussion of evidence (prosecution and defence), and decision upon evidence (judges and juries).
It is evident in the first place, as I remarked in the first edition of this work, and as Righini, Garofalo, Lombroso, Alongi, and Rossi have confirmed, that a study of the anthropological factors of crime provides the guardians and administrators of the law with new and more certain methods in the detection of the guilty. Tattooing, anthropometry, physiognomy, physical and mental conditions, records of sensibility, reflex activity, vaso- motor reactions, the range of sight, the data of criminal statistics, facilitate and complete the amassing of evidence, personal identification, and hints as to the capacity to commit any particular crime; and they will frequently suffice to give police agents and examining magistrates a scientific guidance in their inquiries, which now depend entirely on their individual acuteness and mental sagacity.
And when we remember the enormous number of crimes and offences which are not punished, for lack or inadequacy of evidence, and the frequency of trials which are based solely on circumstantial hints, it is easy to see the practical utility of the primary connection between criminal sociology and penal procedure.
The practical application of anthropometry to the identification of criminals, and to the question of recidivism, which was begun in Paris by M. Bertillon, and subsequently adopted by almost all the states of Europe and America, is too familiar to need description. It will be sufficient to recall the modifications of Bertillon’s system by Anfosso, with the actual collection of anthropometric data, and their inclusion in the ordinary records of justice.
Thus the sphygmographic data on the circulation of the blood, which reveal the inner emotions, in spite of an outward appearance of calm or indifference, have already served to show that a person accused of theft was not guilty of it, but that he was on the contrary guilty of another theft, of which he had not been so much as suspected. On another occasion they established the innocence of a man condemned to death. We shall have more speaking and frequent illustrations when these inquiries have been placed regularly at the service of criminal justice.
The sphygmograph may also be useful in the diagnosis of simulated disease, after the example set M. Voisin in the case of a sham epileptic in Paris, “whose sphygmographic lines have no resemblance to those of true epileptics before and after a fit, and only resemble those produced by normal persons after a violent gesticulation.”
As for the possible utilisation of hypnotism, we must be cautious before we draw any legal conclusions from it; but it cannot be questioned that this is a valuable source of scientific aid in the systematic collection of criminal evidence.
But, for the present, the most certain and profitable aids in the collection of evidence are those afforded by the organic and psychical characteristics of criminals. In my study on homicide I reckoned up many psychological and psycho-pathological symptoms which characterise the murderer, the homicidal madman, and the homicide through passion. And in my professional practice I have often found by experience that there is a great suggestive efficacy in these psychological symptoms in regard to the conduct of a criminal, before, during, and after a crime; and it is important to bring this knowledge scientifically before detectives and judges.
These data are not applicable to accused persons exclusively. When we remember the enormous importance of oral evidence in the chain of criminal proof, and the rough traditional empiricism of the criteria of credibility, which are daily applied in all trials to all kinds of witnesses, by men who regard them, like the prisoners, as an average abstract type–excluding only the definite cases of inability to give evidence, which are defined beforehand with as much method as the cases of irresponsibility– the necessity of calling in the aid of scientific psychology and psycho-pathology is manifest.
For instance, not to dwell on the absurd violation of these traditional criteria of credibility, when police officers are admitted as witnesses (often the only witnesses) of resistance to authority or violence, wherein they are doubly interested parties, how often in our courts do we give a thought to the casual imaginations or credulity of children, women, weak-nerved or hysterical persons, and so on? Counsel for defence or prosecution who desired to know if any particular witness is or is not hysterical would bring a smile to the face of the judge, very learned, no doubt, in Roman law or legal precedents, but certainly ignorant in physiology, psychology, and psycho-pathology. Yet the tendency to slander in hysterical cases, which M. Ceneri urged so eloquently in a celebrated trial or the tendency to untruth in children, which M. Motet has ably illustrated, are but manifest and simple examples of this applicability of normal, criminal, and pathological psychology to the credibility of witnesses. And, under its influence, how much of the clear atmosphere of humanity will stimulate our courts of justice, which are still too much isolated from the world and from human life, where, nevertheless, prisoners and witnesses come, and too often come again, living phantoms whom the judges know not, and only see confusedly through the thick mist of legal maxims, and articles of the code, and criminal procedure.
Apart from these examples, which prove the importance of what M. Sarraute justly called “judicial applications of criminal sociology,” the fundamental reform needed in the scientific preparation of criminal evidence is the creation of magisterial experts in every court of preliminary inquiry. In a question of forgery, poisoning, or abortion, the judge has recourse to experts in handwriting, chemistry, or obstetrics; but beyond these technical, special, and less frequent cases, in every criminal trial the basis of inquiry is or ought to be formed by the data of criminal biology, psychology, and psycho-pathology. So that, over and above the knowledge of these sciences which is necessary to judges, magistrates, and police officers, it is most important that an expert, or several experts in criminal anthropology should be attached to every court of criminal inquiry.
This would provide us with an anthropological classification, certain and speedy, of every convicted person, as well as a legal classification of the material fact, and we should avoid the scandal of what are known as experts for the prosecution and experts for the defence. There should be but one finding of experts, either by agreement between them or by a scientific reference to arbitration, as in the German, Austrian, and Russian system; and over this finding the judges and the litigants should have no other power than to call for explanations from the chief of the experts.
In this way we should further avoid the scandal of judges entirely ignorant of the elementary ideas of criminal biology, psychology, and psycho-pathology, like the president of an assize court whom I heard telling a jury that he was unable to say why an expert “wanted to examine the feet of a prisoner in order to come to a decision about his head.” This president, who was an excellent magistrate and a learned jurist was wholly unacquainted with the elements of the theory of degeneracy, like one of his colleagues whom I heard saying, when the expert spoke of the abnormal shape of the ears of a prisoner (in accord with the inquiries of Morel and Lombroso), “That depends on how the hat is worn.”
For in consequence of the assumption, made by Kant amongst others, that questions of mental disease belong to the philosopher rather than to the physician, and of the absurd and shallow idea which superficial persons entertain of those who are insane, picturing them as constantly raving, the judge or juryman who pins his faith to an expert in handwriting thinks himself above the necessity of taking the opinion of an expert in insanity.
It must be recognised, however, that this foolish assumption is partly due to a reasonable anxiety for the public safety, under the sway of the classical theories, which allow the acquittal and discharge of criminals who are found to be of unsound mind. It will eventually disappear, either by the wider diffusion of elementary ideas of psycho-pathology or by the application of positive theories, which are far from carrying the proved insanity of a prisoner to the dangerous and absurd conclusion of his acquittal.
After the first stage of the collection of evidence, during which we can admit the legal representation of the accused, especially for the sake of eliciting both sides of the question, without, however, going so far as the individual exaggerations of complete publicity for the preliminary inquiry, we come to the second stage of procedure, that of the public discussion of the evidence.
The principals in this discussion represent the prosecution (public or private) and the defence; and for these, as I cannot go into great detail, I will only mention one necessary reform. That is the institution of a sort of public defence, by a legal officer such as used to be found in certain of the Italian provinces, under the title of “advocate of the poor,” who ought to be on a par with the public prosecutor, and to be substituted for the present institution of the official defence, which is a complete failure.
As for the actual discussion of evidence, when we have established the scientific rules of evidence, based upon expert acquaintance with criminal anthropology, and when we have eliminated all verbal contention over the precise measure of moral responsibility in the prisoner, the whole debate will be a criticism of the personal and material indications, of the determining motives, and the anthropological category to which the accused belongs, and of the consequent form of social defence best adapted to his physical and psychical character.
The practical conclusion of the criminal trial is arrived at in the third stage, that of the decision on the evidence.
So far as we are concerned, the criminal adjudication has the simple quality of a scientific inquiry, subjective and objective, in regard to the accused as a possible criminal, and in relation to the deed of which he is alleged to be the author. We naturally therefore require in the judge certain scientific knowledge, and not merely the intuition of common sense.
But as the consultation of the jury, by reason of its inseparable political aspect, must take place in private, we can only insist on the fundamental reform of the judicial organisation, which alone can realise the scientific principle of criminal adjudication. It was Garofalo who, in the earlier days of the positive school, urged that civil and criminal judges ought to be wholly distinct, and that the latter ought to be versed in anthropology, statistics, and criminal sociology, rather than in Roman law, legal history, and the like, which throw no light on the judgment of the criminal.
Learned jurists, proficient in the civil law, are least fit to make a criminal judge, accustomed as they are by their studies to abstractions of humanity, looking solely to the juridical bearings, inasmuch as civil law is mostly ignorant of all that concerns the physical and moral nature of individuals. The demoralisation or uprightness of a creditor, for instance, has no influence for or against the validity of his credit.
The jurist, therefore, in a matter of criminal adjudication, entirely loses sight of the personal conditions of the accused, and the social conditions of the community, and confines his attention to the deed, and to the maxims of a so-called retributive justice. They who are called upon to try criminals ought to possess the ideas necessary to the natural study of a criminal man, and should therefore constitute an order of magistrates wholly distinct from that of civil judges.
The practical means of securing this fundamental reform of the judicial bench ought to begin with the organisation of the university, for in the courses of the faculty of law it will be necessary to introduce a more vigorous and modern stream of social and anthropological studies, which must also eventually put new life into the ancient maxims of the civil law.
In the second place, law students at the university ought to be
admitted to what Ellero called a science of clinical criminology, that is to interviews with and systematic observations of prisoners. The first Congress of Criminal Anthropology approved the proposal of M. Tarde, upon the following motion of Moleschot- Ferri:–“The Congress, in agreement with the scientific tendency of criminal anthropology, is of opinion that prison authorities, whilst taking necessary precautions for internal discipline, and for the individual rights of condemned prisoners, should admit to the clinical study of criminals all professors and students of penal law and legal medicine, under the direction and responsibility of their own professors, and if possible in the character of societies for the aid of actual and discharged prisoners.”
Lastly, a special school should be founded for policemen and prison warders, with the object of securing detectives distinguished not only for their personal ability, but also for their knowledge of criminal biology and psychology.
To these reforms, which guarantee the scientific capacity of the criminal judge, we must add reforms which would secure his complete independence of the executive authority, which is now the only authority responsible for the advancement and allocation of judges. But this independence would not be exempt from every kind of control, such as public opinion, and disciplinary authority to some extent distinct from the personnel of the bench; for otherwise the judicial authority would soon become another form of insupportable tyranny.
The most effectual mode of securing the independence of the judges is to improve their position in life. For admitting that a fixed stipend, payable every month, makes a man content with a somewhat lower figure, still it is certain that in these days, with a few honourable exceptions, the selection of judges is not satisfactory, because low salaries only attract such as could not earn more by the practice of their profession.
The personal character of the bench vitally affects the quality of the government as a whole. The most academic and exalted codes are of little avail if there are not good judges to administer them; but with good judges it matters little if the codes or statutes are imperfect.
In criminal law the application of the statute to the particular case is not, or should not be, a mere question of legal and abstract logic, as it is in civil law. It involves the adaptation of an abstract rule, in a psychological sense, to a living and breathing man; for the criminal judge cannot separate himself from the environment and social life, so as to become a more or less mechanical lex loquens. The living and human tests of every criminal sentence reside in the conditions of the act, the author, and reacting society, far more than in the written law.
Herein we have an opportunity of solving the old question of the authority of the judge, wherein we have gone from one excess to another, from the unbounded authority of the Middle Ages to the Baconian aphorism respecting the law and the judge, according to which the law is excellent when it leaves least to the judge, and
the judge is excellent when he leaves himself the least independent judgment.
If the function of the criminal judge were always to be, as it is now, an illusory and quantitative inquiry into the moral culpability of the accused, with the equally quantitative and Byzantine rules on attempt, complicity, competing crimes, and so forth–that is to say, if the law were to be applied to the crime and not to the criminal, then it is necessary that the authority of the judge should be restrained within the numerical barriers of articles of the code, of so many years, months, and days of imprisonment to be dosed out, just as the Chinese law decides with much exactitude the length and diameter of the bamboo rods, which in the penal system of the Celestial Empire have the same prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other hand, a physio- psychological examination of the accused, the crime being relegated to the second line, as far as punishment is concerned, the criminal being kept in the front, then it is clear that the penal code should be limited to a few general rules on the modes of defence and social sanction, and on the constituent elements of every crime and offence, whilst the judge should have greater liberty, controlled by the scientific and positive data of the trial, so that he may judge the man before him with a knowledge of humanity.
The unfettered authority of the judge is inadmissible in regard to the forms of procedure, which for the prosecuted citizen are an actual guarantee against judicial errors and surprises, but which should be carefully distinguished from that hollow and superstitious formalism which generates the most grotesque inanities, such as an error of a word in the oath taken by witnesses or experts, or a blot of ink on the signature of a clerk.
Scientific knowledge of criminals and of crime, not only as the deed which preceded the trial, but also as a natural and social phenomenon–this, then, is the fundamental principle of every reform in the judicial order; and this, too, is a condemnation of the jury. Whilst Brusa, one of the most doctrinaire of the Italian classical school, foretold a steady decline of the “technical element” in the magistracy, and consequently a persistent intervention of the popular influence in the administration of justice, the positive school, on the other hand, has always predicted the inevitable decline of the jury in the trial of crimes and ordinary offences.
Theodore Jouffroy, after listening at the University of Pisa to a lecture by Carmignani against the jury, said, “You are defending logic, but slaying liberty.”
Apart from the question whether liberty is possible without logic, it is nevertheless a fact that there is always a prominent political character in the jury. This accounts for the more or less declamatory defences of this judicial institution, which is no favourite with the criminal sociologist.
At the end of the eighteenth century, when there was a scientific and legislative tendency towards the creation of an independent order of magistrates, the French Revolution, mistrusting the whole aristocracy and social caste, opposed this tendency, believing enthusiastically in the omnipotence and omniscience of the people, and instituted the jury. And whilst in the political order it was inspired by classical antiquity, in the order of justice it adopted this institution from England. The jury was not unknown to the Republic of Athens and Rome, but it was developed in the Middle Ages by the “barbarians,” as an instrument which helped the people to escape from tyranny in the administration of the law. It used to be said that the jury made a reality of popular sovereignty, and substituted the common sense and good will of the people for the cold dogmatism of the lawyers, penetrated as they were by class prejudices. From this point of view the jury was too much in accord with the general tendency of the ideas of the day not to be greedily adopted. It was another example of the close connection between philosophic ideas, political institutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the improvements recorded by Bergasse in his report to the Constituent Assembly, on August 14, 1789, was a mere counterfeit of that which it was, and is, in England. But its political character is still so attractive that it has many supporters to this day, though the results of its employment in various countries are not very happy.
Yet, as the jury is a legal institution, we must consider its advantages and defects, both from the political and from the legal point of view, and accept the conclusion forced upon us by the predominance of one or the other.
From the political standpoint, it is unquestionable that the jury is a concession to popular sovereignty; for it is admitted that the power of the law not only originates with the people, but is also directly exercised by them.
The jury may also be a guarantee of civic and political liberties as against the abuses of government, which are far more easy with a small number of judges, more or less subordinate to the government.
Again, the jury may be a means of affirming the sentiment of equality amongst citizens, each of whom may to-morrow become a judge of his equals, and of spreading political education, with a practical knowledge of the law. It is true that, with this knowledge of the law, juries also learn the details of every kind of crime, without the equally constant evidence of virtuous actions; and there is here a danger of moral contagion from crime. But, from the political point of view, it is certain that the jury may awaken, with a knowledge of the law, a consciousness of civic duties, which are too frequently undertaken as a forced and troublesome burden.
On these political advantages of the jury, however, a few remarks may be made.
In the first place, the concession to popular sovereignty is reduced to very small proportions by the limitations of the jury list, and of the functions of the jury, which legislation in every country is compelled to impose.
The essential characteristic distinguishing the jury from the judge is especially marked by the origin of their authority; for the jury is a judge simply because he is a citizen, whilst the magistrate is a judge only by popular election or appointment by the head of the State. So that any one who has entered on his civil and political rights, and is of the necessary age, ought, according to the spirit of the institution, to administer justice on every civil or criminal question, whatever its importance, and not only in giving the final verdict, but also in conducting the trial. Yet not only is the ancient trial by popular assemblies impossible in the great States of our day, but also faith in the omniscience of the people has not availed to prevent all kinds of limitations in the principle of the jury. Thus the political principle of the jury is such that it cannot be realised without misapprehension, limitation, and depreciation.
In fact, even in England, where the jury can of its own motion declare in the verdict its opinions, strictures, and suggestions of reform, as arising out of the trial, it is always subject to the guidance of the judge, and it is not employed in the less serious and most numerous cases, on which the whole decision is left to magistrates, who apparently are not to be trusted to decide upon crimes of a graver kind.
And as for the other political advantages of the jury, experience shows us that the jury is often more injurious than serviceable to liberty.
In the first place, in continental States the jury is but an institution artificially grafted, by a stroke of the pen, on the organism of the law, and has no vital connection or common roots with this and other social organisms, as it has in England. Also the example of classical antiquity is opposed to the institution of the jury, which has been imposed upon us by eager imitation and political symmetry; for if the jury had disappeared amongst continental nations, this simply means that it did not find in the ethnic types, the manners and customs, the physical and social environments of these nations, an adequate supply of vitality, such as it has retained, for instance through so many historical changes, amongst the Anglo-Saxons.
And if sometimes the jury can withstand the abuses of government, still too frequently it does not withstand its own passions, or the influence of the social class (the bourgeoisie in our own
day), to which nearly all juries belong. It is notorious, in fact, that the jury is more rigorous in regard to prisoners accused of crimes against property than in regard to those accused of crimes against the person, especially crimes instigated by personal motives such as hate, vengeance, or the like; for every juryman thinks that he himself might be a victim of the exploits of a thief, or the attacks of a murderer for the sake of gain; whereas there is less reason to fear a murder provoked by vengeance, an outrage, an embezzlement of public money, or the like. And Machiavelli said that men would rather have blood drawn from their veins than money from their pockets.
Besides, the same jury which will resist pressure from the Government does not resist popular pressure, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there are noble exceptions; but society is made up of average virtues, and only upon them can it count.
And when it is continually asserted, in the words of Jouffroy, that the jury is an outpost of liberty, or in those of Carrara, that it is its necessary complement, we have to remark that this would be true if the jury were instituted by a despotic government; but when popular liberties have far more effectual guarantees in the political organisation of the State, then this quality of the jury is more apparent than real.
In fine, either the government is despotic, and then juries are not strong enough to preserve liberty, as in England from the time of Henry VIII. to that of James II.; or, as Mittermaier said, “when authority is corrupt, and the judge is cowardly or terrorised, a jury cannot assist in the defence of liberty.” Or else the government is liberal, and then the judges also are independent, so that there is no need of juries, especially with the guarantees of their independence which I have already indicated.
Now history reminds us that the jury is never instituted by despotic governments. It was refused, for instance, in upper Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in Lombardy by Austria in 1849, and in our own day in Russia, for political crimes, though it is allowed for ordinary crimes.
Thus the jury, as a political and liberal institution, is oddly destined to be excluded when it would be serviceable, and to be useless when it is admitted. It reminds us of the destiny of the National Guard.
But, even in England, the jury is regarded as especially a legal institution; and the main qualities attributed to it in this connection are moral judgment and private conviction.
The law, we are told, has always a certain harshness and insufficiency, for it ought to provide for the future whilst grounding itself on the past, whereas it cannot foresee all possible cases. Progress is so rapid and manifold, in modern society, that penal laws cannot keep pace with it, even though they are frequently recast–as for instance in Bavaria, which in one century has had three penal codes, and in France, where an almost daily accumulation of special laws is piled upon the original text of the most ancient code in Europe.
The jury, by its moral judgment, corresponding in some degree to the equity of the ancients, is able to correct the summum jus with verdicts superior to the written law. And, in addition, the jury always follows its private conviction, the inspiration of sentiment, the voice of the conscience, pure instinct, in place of the stern and artificial maxims of the trained lawyer.
I do not deny these qualities of the jury; but I very much suspect that they are serious and dangerous vices rather than useful qualities in a legal institution.
In the first place, I believe that the distinction of powers or social functions, corresponding to the natural law of division of
labour, ought not to be destroyed by the jury. The duty of the judicial power, before everything else, is to observe and apply the written law; for if we once admit the possibility that the judge (popular or trained) has to amend the law, all guarantee of liberty is lost, and the authority of the individual is unlimited. As I have said above, we allow the authority of the judge only when we have actual guarantees of his capacity and independence, and always within the limits of the general precepts of the law, and under the control of a superior disciplinary power.
But the omnipotence of the jury, liberated from all reasonable regulation, with no directing motives for its verdict, and no possibility of control, is a two-edged blade, which may sometimes improve upon the law, or at least usefully indicate to the legislator the tendencies of public opinion in regard to a particular crime. But it may also violate the law, and the liberty of the individual, and then we pay too dear for the slight advantage which the jury can confer, and which might be replaced by other manifestations of public opinion. In any case, as Bentham said, it is better to have our remedy in the law than in the subversion of the law.
As for private conviction, we willingly admit that no system of legal proof is acceptable. But it is one thing to substitute for the legal and artificial assurance of the law the assurance of the judge who tries the case, and quite another thing to substitute for conviction founded on argument, and for a critical examination of the evidence collected during the trial, the blind and simple promptings of instinct or sentiment.
Even apart from technical notions, which we consider necessary to the physio-psychological trial of any accused person, social justice certainly cannot be dispensed through the momentary and unconsidered impressions of a casual juryman. If a criminal trial consisted of the simple declaration that a particular action was good or bad, no doubt the moral consciousness of the individual would be sufficient; but since it is a question of the value of evidence and the examination of objective and subjective facts, moral consciousness does not suffice, and everything should be submitted to the critical exercise of the intellect.
To the instinctive blindness of the judgment of juries we must add their irresponsibility.
No doubt if the legislator required from all judges a simple Yes or No, then perhaps the jury would be as good as the magistrate. But instead of the unexplained verdict which Carmignani called “the method of the cadi,” we are of opinion that there should always be substituted a sentence based on reasons and capable of control, especially in the positive system of criminal procedure, which demands from the judge an acquaintance with anthropology and criminal sociology, and from his sentence the elements necessary to the subsequent treatment of the convict, in agreement with the characteristics of his individuality and of his crime.
But not only is the jury devoid of the qualities attributed to it; it has a fatal defect, which alone is sufficient to condemn this institution of the law.
In the first place, it is not easy to understand how a dozen jurymen, selected at hazard, can actually represent the popular conscience, which indeed frequently protests against their decisions. In any case, the fundamental conception of the jury is that the mere fact of its belonging to the people gives it the right to judge; and as the ancient assemblies are no longer possible, the essence of the jury is that chance alone must decide the practical exercise of this popular prerogative.
Now these two conceptions of the jury are in manifest contradiction with the universal rule of public end private life, that social functions should be exercised by persons selected as most capable.
Thus in everyday life we all require of every labourer the work of which he is more particularly capable. No one would dream, for instance, of having his watch mended by a cobbler. The administration of criminal justice, on the contrary, is demanded of any one we chance to come across, be he grocer or man of independent means, painter or pensioner, who may never in his life have witnessed a criminal trial!
The irregularity of our statutes corresponds to the incapacity of individual jurymen; for it is evident that we cannot impose the rigorous process of a special mode of procedure on the first- comer. And the law heightens the absurdity by plainly declaring that juries must give their decision without regard to the consequences of their verdict! “Jurymen fail in their highest duty when they have regard to the penal law, and consider the consequences which their verdict may have upon the accused” (Article 342 of the French code of criminal procedure).
That is to say, criminal justice should be based on the neglect of the elementary rule of justice, according to which every man ought always to consider the possible consequences of his actions. And the criminal law demands from juries this proof of their blindness (which is fortunately impossible) that they should judge blindfold, with no regard for the prisoner, or for the consequences which their verdict may have upon him.
It was impossible that the advocates of the jury should fail to see the absurdity of these principles; and they have been compelled to slur them over, at any rate in ordinary practice.
In respect of the composition of juries, restrictions have been introduced, by means of lists of eligible persons, selection by lot, the optional exclusion of a certain number of jurymen by the public prosecutor and the defence, &c. All these expedients, however, some of which are imposed by necessity, can only insure a general and presumptive capacity, for they have the merely negative effect of contributing to exclude the most manifest moral or intellectual incapacity. But the only capacity which is necessary in a judge, which is a special and positive capacity, is not guaranteed by these restrictions, which, after all, are a negation of the very principle of the jury.
And even if the jury were always composed of persons of adequate capacity, it would still be condemned by two inevitable arguments of human psychology.
First, the assembling of several individuals of typical capacity never affords a guarantee of collective capacity, for in psychology a meeting of individuals is far from being equivalent to the aggregate of their qualities. As in chemistry the combination of two gases may give us a liquid so in psychology the assembling of individuals of good sense may give us a body void of good sense. This is a phenomenon of psychological fermentation, by which individual dispositions, the least good and wise, that is the most numerous and effective, dominate the better ones, as the rule dominates the exceptions. This explains the ancient saying, “The senators are good men, but the Senate is a mischievous animal.”
And this fact of collective inferiority, not to say degeneracy, is observed in casual assemblies, such as juries, meetings, and the like, far more than in organised and permanent councils of judges, experts, &c.
Secondly, the jury, even when composed of persons of average capacity, will never be able in its judicial function to follow the best rules of intellectual evolution.
Human intelligence, in fact, both individual and collective, displays these three phases of progressive development: common sense, reason, and science, which are not essentially different, but which differ greatly in the degree of their complexity. Now it is evident that a gathering of individuals of average capacity, but not technical capacity, will in its decisions only be able to follow the rules of common sense, or at most, by way of exception, the rules of reason–that is, of their common mental habits, more or less directed by a certain natural capacity. But the higher rules of science, which are still indispensable for a judgment so difficult as that which bears on crimes and criminals, will always be unknown to it.
As for the irregularity of the action of a jury, it has been deemed that this can be provided against by the formal distinction between a decision of fact and a decision of law, in obedience to the advice of Montesquieu, that “to the popular judgment we should submit a single object, a fact, a single fact.”
But without dwelling on the remark of Hye-Glunek, that in this way the legal problem, which ought to be as indivisible as the syllogism which creates it, is cut into two parts, it is evident that Cambaceres was amply justified in saying, in the Council of State, that the separation of fact from law is a fallacy.
In fine, not only under the positive system of criminal procedure, which demands of the judge, in addition to legal conceptions of crime, some anthropological and sociological knowledge of criminals, but even at the present day it is more correct to say that the jury is concerned with the crime–that is, in the words of Binding, with a legal fact, and not merely a material fact; whilst the judge is concerned with the punishment. Thus, in the Assize Court, the separation of the judgments is not between fact and law, but only between the crime and the punishment
Even admitting the possibility of this separation of fact and law, logic and experience have already belied the assertion of those who say with Beccaria that, “for the appreciation of facts, ordinary intelligence is better than science, common sense better than the highest mental faculties, and ordinary training better than scientific.”
On the contrary, a criminal trial is not only concerned with the direct perception of facts, but also and especially with their critical reconstruction and psychological appreciation. In civil law the fact is really accessory, and both sides may be agreed in its exposition, whilst disputing about the application of the law to this fact. But in criminal justice the fact is the principal element, and it is not merely necessary to admit or to decide upon this or that detail, but we have also to regard its causes and effects, from the individual and the social point of view, without
speaking of the common difficulty of a critical and evidential appreciation of a mass of significant circumstances. So that, as Ellero said, in a criminal trial the decision as to fact is far more difficult than that as to law. And by this time daily practice has accumulated so many proofs, more or less scandalous, of the incapacity of the jury even to appreciate facts, that it is useless to dwell upon them.
To conclude this question of the jury, it remains to speak of its defects, which are not the more or less avoidable consequences of a more or less fortunate application of the principle, which might be the case with any social institution, but, on the contrary, are an inevitable consequence of the laws of psychology and sociology.
So far as science is concerned, a fact exists in connection with a general law. For common sense, on the other hand, the actuality of the particular fact is the only matter of concern. Hence the inevitable tendency of the jury to be dominated by isolated facts, with no other guide than sentiment, which, especially in southern races, confines all pity to the criminals, whilst the crime and its victims are all but forgotten. The very keenness of sentiment which would urge the people to administer “summary justice” on the criminal, when surprised in the fact, turns entirely in his favour when he is brought up at the assizes, with downcast mien, several months after the crime. Hence we obtain an impassioned and purblind justice.
And the predominance of sentiment over the intelligence of the jury is revealed in the now incurable aspect of judicial discussions. There is no need and no use for legal and sociological studies and for technical knowledge; the only need is for oratorical persuasiveness and sentimental declamations. Thus we have heard an advocate telling a jury that, “in trials into which passion enters, we must decide with passion.” Hence, also, the deterioration of science in the Assize Courts, and its faulty application, and its completely erroneous consequences.
Moreover, the verdict of the jury cannot represent the sum of spontaneous and individual convictions–not only in countries where juries are exposed to all kinds of influences during the adjournments of the discussion, but even in England, where unanimity is required, and where all communication of the jury with the outer world is forbidden until the end of the trial. For in every case the influence of the most intriguing or most respected jurymen in the jury’s room is always inevitable. So that we have even had irresponsible suggestions of public deliberation on the part of the jury.
Against these defects of the jury its advocates have set an objection in regard to the trained judge, namely that the habit of judging crimes and offences irresistibly inclines the judge to look upon every prisoner as guilty, and to extinguish the presumption of innocence even in cases where it would be most justified.
This objection has really a psychological basis; for the conversion of the conscious into the unconscious, and the polarisation of the intellectual faculties and dispositions, are facts of daily observation, determined by the biological law of the economy of force. But it is not sufficient to make us prefer juries to judges.
In addition to the fact that this mental habit of judges may be counteracted by a better selection of magistrates under the reforms which I have indicated, it is to be observed that this presumption of innocence, as we have seen, is not so absolute as some would have us believe, especially in case of a trial which follows upon a series of inquiries and proofs in; the preliminary hearing.
Again, this tendency of judges is restrained and corrected by the publicity of the discussions. And all, or nearly all, the famous and oft-repeated instances of judicial errors go back to the time of the inquisitorial and secret trial–in regard to which an interesting historical problem presents itself; that is to say the co-existence of the inquisitorial trial, which impairs every individual guarantee, with the political liberties of the mediaeval Italian republics.
This is why the number of acquittals, and of the admission of extenuating circumstances, is always very remarkable, even in the Correctional Tribunals, which in Italy show proportions not greatly differing from those of the Assize Courts.
We must remember that, under our modern penal procedure, it is not the individual guarantees that are lacking, such as the assigning of reasons for the sentence, the almost total abolition of punishments which cannot be reconsidered, appeals, reversals, revision, which would be still more efficacious under the positive system which we propose.
One logical consequence of the psychological objection raised against judges would be the granting of a jury even in the Correctional Tribunals, though the experience which we have of it in the Assize Courts is not so encouraging as to leave many advocates of a jury in the minor courts.
But a decisive objection, founded on the most positive data of sociology, can be raised against the jury.
The law of natural evolution proves that no variation in the vegetable or animal organism is useful or durable which is not the outcome of a slow and gradual preparation by organic forces and external conditions. Thus an organ which ceases to have a function to discharge is subject to atrophy, and no new organ is possible or capable of development if it is not required by a new function to which it corresponds.
What has been said of organic variations is also true of social institutions. And when the jury is contemplated from this point of view, we see that it has been artificially grafted by a stroke of the legislator’s pen on the judicial institutions of the continent, without the long-continued, spontaneous and organic connections which it had, for instance, with the English people. The jury had even disappeared from the continental countries in which it had left traces of former existence; for it had not found in the race-characteristics or the social organism that favourable environment which is supplied in England by the natural groundwork of institutions and principles which, as Mittermaier says, are its necessary correlative.
The jury, as it has been politically established on the continent of Europe, is what Spencer calls a false membrane in the social organism, having no physiological connection with the rest of the body politic. So that it is not yet acclimatised, even in France, after a century of uninterrupted trial.
As for the other bio-sociological law, of single organs for single functions, it seems to me that if in England the jury and the magistracy have been developed side by side and interwoven, this is only a case of organic integration. But on the continent, as the jury has been added artificially to the magistracy, this is on the other hand a genuine example of non-natural growth.
And if it be said that the jury, as an advance from the homogeneous to the heterogeneous, indicates a higher degree of social evolution, we must draw a distinction between differentiations which amount to evolution and those which, on the contrary, are symptoms of dissolution. Division of labour, physiological or social, is a true evolutionary differentiation; whilst modifications introduced by a disease in the animal organism, or by a revolt in the social organism, are but the beginning of a more or less extended dissolution.
Now the jury belongs to the domain of social pathology, for it is essentially contrary to the law of the specialisation of functions, according to which every organ which becomes more adapted to a given task is no longer adapted to any other. It is only in the lower organisms that the same tissue or organ can perform different functions, whilst in the vertebrates the stomach
can only serve for digestion, the lungs for oxygenation, and so on. Similarly in primitive societies, each individual is soldier, hunter, tiller of the soil, &c., whilst with the progress of social evolution every man performs his special function, and becomes unfitted for other labours. In the jury we have a return to the primitive confusion of social functions, by giving to any chance comer, who may be an excellent labourer, or artist, a very delicate judicial function, for which he has no capacity to-day, and will have no available experience to-morrow.
In modern societies, to tell the truth, there is another function assigned to all citizens, outside of their special capacity, and that is the electoral duty. But the cases are very different. The franchise does not demand a labour so difficult and delicate as critical judgment, and the reconstruction of the conditions of an act and of its author. It has no direct influence on the positive function of the person elected, but on the contrary it is a confession of the special incapacity of the elector to do what he intrusts to the capacity of the person elected. The franchise is but an elementary function of the assimilation of physiological elements in the social organism, which in the animal organism is performed by the aggregate of living cells, and in society by the aggregate of individuals, not being idiots or criminals, who possess the minimum of social energy.
Far different is the administration of criminal justice, a technical and very noble function, which has nothing in common with the elementary function of the franchise. I could not indeed agree with the assertion of Carrara, who thought it a contradiction to deny to the people any participation in the exercise of the judicial authority when they are allowed to participate in the exercise of legislative authority. In the first place, the people have but a very indirect share in the legislative function, and, even where the referendum exists, very useful as I believe it to be, the people have only a simple, almost negative function, to say Yes or No to a law which they have not made, and would have had no technical ability to make. Thus the argument of Carrara could only lead to the popular election of judges, as of legislators, and to a control by the people of the administrative action of the judges when elected No doubt this would have theoretical advantages, though in my opinion it would raise practical difficulties, especially in nations which do not possess a very keen conscience and political activity, after enfeeblement by centuries of despotism, or of political and administrative tutelage and centralisation.
The jury, then, is a retrogressive institution, as shown by history and sociology, for it represents the mediaeval and instinctive phase of criminal justice. It has, indeed, a few advantages (there is always a certain profit in misfortune), especially when it operates on the final outcome of the classical theories–bringing to bear, for instance, an irresistible force against repeated theft, or murders committed at the instigation of others. And it has sometimes drawn attention to necessary penal reforms, after accepting certain conclusions of the positive school, such as the acquittal of criminals of passion, and political prisoners, or a greater severity towards habitual criminals.
But the only possible conclusion from the foregoing criticisms is that the jury should be abolished for the trial of common crimes, AFTER the introduction of reforms which would ensure the capacity and independence of the judges.
Meanwhile, since it is much easier to establish a new social institution than to abolish one, it is worth while to indicate the principal and most urgent reforms which should be made in the jury system, so as to eliminate its more serious and frequent disadvantages.
The theoretical distinction of the classical school between ordinary and political crimes is not very precise, for the so- called political crimes are either not crimes (as when they are confined to the manifestation of an idea), or they are common crimes which spring from a lofty and social passion in individuals, who have the characteristics of the criminal by passion, or, in other words,–are but quasi-criminals; or else they are common crimes committed by ordinary malefactors, under the pretext of a popular idea. Instead of distinguishing crimes, I think we ought to distinguish between ordinary and political criminals, according to their determining motives, and the social bearings and historical moment of their acts. At the same time, whilst our criminal laws retain this distinction, I think it is useful to keep the jury for the trial of political crimes and offences, and for those connected with the press and with society as a whole; for if in these cases the jury might yield to the influence of class interests and prejudices (as for instance in the trial of actions arising out of the conflict of capital and labour), the danger will still be less than it would be with judges alone, who are not sufficiently independent of the executive, which in its turn is but the secular arm of the dominant class, and which therefore combines the interests and prejudices of the political order with those of the economic and moral order which dominate the jury.
For common crimes it would be necessary to withhold from a jury the trial of prisoners who avow their crime. The essence of a trial by indictment is the principle that the discussion as to punishment is a private affair, and it has no further ground for existence when one of the parties withdraws from the duel. Hence the English mistrust of a prisoner’s confession of guilt, which in the inquisitorial trial, on the other hand, is a mainstay of the evidence. Yet I believe that in these cases the Scottish system is preferable to the English. In England the judge begins by asking the prisoner if he is Guilty or Not Guilty, and in case of a confession he passes sentence without a verdict from the jury. In Scotland, on the contrary, the prosecutor can furnish his proof, in spite of the confession of the prisoner, and demand a verdict from the jury. In this way it is possible to avoid not only a scandalous acquittal of prisoners who have confessed their guilt (as happens in Italy, France, and elsewhere), but also the danger that the confession may not be true, and that an innocent man may be condemned.
Juries ought, moreover, as proposed by M. Ellero, to specify attenuating circumstances, on each of which a special question ought to be put to them.
The jury ought also to have the right of spontaneously finding in a sense less serious than that of the charge, even when no corresponding question has been put to them.
But at the same time it cannot be denied that these would only be palliatives, more or less efficacious.
The only positive conclusion is that, whilst retaining the jury for crimes of the political and social order, we should aim at its abolition for common crimes, immediately after securing stringent reforms as to the independence and capacity of the judges.
It needs no further demonstration that the modern organisation of punishment, based partly on the assumption that we can measure the moral culpability of criminals, and partly on an illusion as to their general amendment, and almost entirely reduced, in consequence, to imprisonment and the cell system, has absolutely failed to protect society against crime.
Holtzendorff, one of the best known of the classical school, frankly confessed that “the prison systems have made shipwreck.” So also in Italy we have had disquisitions “on the futility of repression,” and in Germany it has been held that “existing criminal law is powerless against crime.” Thus the necessity of taking steps to counteract this failure is forced upon us more and more every day. We must proceed either by way of legislative reforms, as effectual as we can make them, but always inspired by reaction against the established prison system, or by a propaganda on scientific lines. The most striking form which has been taken by the latter process is the International Union of Penal Law, which in 1891, two years after its foundation, numbered nearly six hundred members of various nationalities, and which in the second clause of its charter, in spite of the varied reservations of a few members, notably supported the positive theories.
The defects of the penal system inspired by the theories of the classical school of criminal law, and by the actual regulations of the classical prison school, may be briefly summed up. They are, a fallacious scale of moral responsibility; absolute ignorance and neglect of the physio-psychological types of criminals; intervals between verdict and sentence on the one hand, and between the sentence and its execution on the other, with a consequent abuse of pardons; disastrous practical effects of corruption and of criminal association in prisons; millions of persons condemned to short terms of imprisonment, which are foolish and absurd; and a continuous, inexorable increase of recidivism.
So that the tribunals of Europe, as M. Prins observed, with the absolute impersonality of modern justice, allow their sentences to fall upon unhappy wretches as a tap allows water to fall drop by drop upon the ground.
Without counting fines or police detention, there were sentenced in Italy, in the ten years 1880-89, to various terms of imprisonment, 587,938 persons by the Pretors, and 465,130 by the Correctional Tribunals. That is, more than a million terms in the minor courts within ten years!
And the total number sentenced in Italy to various punishments, by Pretors, Tribunals, and Assize Courts, in the same ten years, was not less than 3,230,000.
As for recidivism, without repeating the familiar figures of its annual increase, it will suffice to recall the astounding fact to which I drew attention before the central Commission of Legal Judicial Statistics. That is to say, amongst the prisoners condemned in 1887 for simple homicide, there were 224 who had been already condemned, either FOR THE SAME CRIME (63), or for a crime mentioned in the same section of the penal code (181); and even of those condemned for qualified manslaughter, 78 had already been condemned, either FOR THE SAME CRIME (8), or for one of like character.
In France we have figures equally striking, for they relate not to the effect of exceptional conditions, or conditions peculiar to this or that country, but to the uniform consequence of the classical theories of criminal law and prison organisation.
The total number condemned to imprisonment by the French tribunals, and detained by the police, in the ten years 1879-88, was 1,675,000; the Tribunal sentences under six days being 113,000.
And the total condemned to punishments of various kinds, by Assize Courts, Tribunals, and police courts, reached in the same ten years the enormous number of 6,440,000 individuals!
The meaning of this is that penal justice at the present moment is a vast machine, devouring and casting up again an enormous number of individuals, who lose amongst its wheels their life, their honour, their moral sense, and their health, bearing thenceforth the ineffaceable scars, and falling into the ever-growing ranks of professional crime and recidivism, too often without a hope of recovery.
It is impossible, then, to deny the urgent necessity of substituting for our present penal organisation a better system corresponding to the governing conditions of crime, more effectual for social defence, and at the same time less gratuitously disastrous for the individuals with whom it deals.
The positive school, in addition to the partial reforms proposed by Lombroso, and by myself in the second edition of this work, has put forward in the Criminology of Garofalo a “rational system of punishment,” whereof it is desirable to give a summary.
M. Liszt also, agreeing with the positive school in regard to the necessity of a radical reform in the penal system, yet with certain reservations, has propounded a scheme, which, however, as it does not sufficiently consider various classes of criminals, whom he divides merely into the habitual and the occasional, would need completion, especially in comparison with the well-reasoned scheme of Garofalo. M. Liszt’s system is as follows:–
I believe, however, that it is necessary, before laying down practical and detailed schemes, more or less complete, to establish certain general criteria, based upon the anthropological, physical, and social data of crime, such as may lead up to a positive system of social defence.
These fundamental criteria, it seems to me, can be reduced to the three following:–(1) No fixity in the periods of segregation of
criminals; (2) the social and public character of the exaction of damages; (3) the adaptation of defensive measures to the various types of criminals.
1. For every crime which is committed, the problem of punishment ought no longer to consist in administering a particular dose, as being proportionate to the moral culpability of the criminal; but it should be limited to the question whether by the actual conditions (breach of law or infliction of injury) and by the personal conditions (the anthropological type of the criminal) it is necessary to separate the offender from his social environment for ever, or for a longer or shorter period, according as he is or is not regarded as capable of being restored to society, or whether it is sufficient to exact from him a strict reparation of the injury which he has inflicted.
Under this head there is a radical contradiction. The existing schemes of punishment, differing in their machinery (and out of harmony with the sentence of the judge, often even with the terms of the law), are all based on the principle of fixed periods of punishment, graduated into hundreds and thousands of possible doses, and have regard far more to the crime than to the criminal. On the other hand we have the positive system of punishment, based on the principle of an unfixed segregation of the criminal, which is a logical consequence of the theory that punishment ought not to be the visitation of a crime by a retribution, but rather a defence of society adapted to the danger personified by the criminal.
This principle of unfixed punishment is not new, but it is only the positive theory which has given it system and life. The idea of justice as assigning punishment to a crime, measured out by days and weeks, is too much opposed to the principle of the indeterminate sentence to allow it to receive any systematic trial under the sway of the classical theories. There has been only an isolated and exceptional use of it here and there, such as the seclusion of mad criminals in special asylums, “during her Majesty’s pleasure,” in England. Nevertheless, personal freedom (which is held to be violated by seclusion for unfixed periods) is greatly respected by the English people.
The fundamental principle of law is that of a restriction imposed by the necessity of social existence. It is evident, therefore, to begin with, that seclusion for an unfixed period, as for life, is in no way irreconcilable with this principle of law, when imposed by necessity. Thus it has been proposed, even by the classical school, as a mode of compensation or adjustment.
If, indeed, we admit an increase of punishment for a first relapse, it is logical that this increase should be proportional to the number of relapses, until we come to perpetual seclusion or transportation, and even to death, as under the mediaeval laws. So that there are some of the classical school who, by way of being logical if not practical, and refusing to admit progressive increase, begin by refusing increase in any degree, even for a first relapse.
Moreover, if the jurists agree in allowing conditional liberation, before the term assigned in the sentence, when the prisoner seems to have given proof of amendment, the natural consequence, by mere abstract logic, ought to be a prolongation of punishment for the prisoner who is not amended, but continues to be dangerous.
This is admitted, amongst others, by Ortolan, Davesies de Pontes, and Roeder, who quote as favourable, though only for recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve, von Lichtenberg, Gotting, Krause, Ahrens, Lucas Bonneville, Conforti, and others, amongst students of criminality; and Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D’Alinge amongst prison experts.
After this first period, the principle of segregation for an unfixed term, as a basis for the penal system, has been supported by Despine, and developed by a few German writers. These latter have insisted especially on the disadvantages of the penal systems inspired by the classical theories, though they run somewhat to excess, like Mittelstadt, who proposed the re- establishment of the brutal punishment of flogging.
In corporal punishments, it is true, there would be a certain gain of efficaciousness, particularly against such hardened offenders as the born criminals, so that there is a reaction in favour of these punishments. M. Roncati, for instance, writing of prison hygiene, says that he would be glad to see “the maternal regime,” with its salutary use of physical pain before the child has developed a moral sense; and if flogging is objectionable, resort might be had to electricity, which is capable of giving pain without being dangerous to health or revolting. Similarly Bain says that the physiological theory of pleasure and pain has a close relation to that of rewards and punishments, and that, as punishment ought to be painful, so long as it does not injure the convict’s health (which imprisonment is just as likely to do), we might have recourse to electric shocks, which frighten the subject by their mysterious power, without being repugnant. Again, the English Commission of Inquiry into the results of the law of penal servitude declared in its report that, “In English prisons, disciplinary corporal punishments (formerly the lash, then the birch) are inflicted only for the most serious offences. The evidence has shown that in many cases they produce good results.”
Nevertheless corporal punishments, as the main form of repression, even when carried out with less barbarous instruments, are too deeply opposed to the sentiment of humanity to be any longer possible in a penal code. At the same time they are admissible as disciplinary punishments, under the form of cold baths, electric shocks, &c., all the more because, whether prescribed by law or not, they are inevitable in prisons, and, when not regulated by law, give rise to many abuses, as was shown at the Stockholm Prison Conference in 1878.
I agree with Kirchenheim that Dr. Kraepelin’s scheme of seclusion for unfixed periods is more practical and hopeful. When the measure of punishment is fixed beforehand, the judge, as Villert says, “is like a doctor who, after a superficial diagnosis, orders a draft for the patient, and names the day when he shall be sent out of hospital, without regard to the state of his health at the time.” If he is cured before the date fixed, he must still remain in the hospital; and he must go when the time is up, cured or not.
Semal reached the same conclusion in his paper on “conditional liberation,” at the second Congress of Criminal Anthropology.
And this notion of segregation for unfixed periods, put forward in 1867 for incorrigible criminals by the Swiss Prison Reform Association, has already made great progress, especially in England and America, since the Prison Congress of London (1872) discussed this very question of indefinite sentences, which the National Prison Congress at Cincinnati had approved in the preceding year.
In 1880 M. Garofalo and I both spoke in favour of indefinite segregation, though only for incorrigible recidivists; and the same idea was strikingly supported in M. Van Hamel’s speech at the Prison Congress at Rome (1885). The eloquent criminal expert of Amsterdam, speaking “on the discretion which should be left to the judge in awarding punishment,” made a primary distinction between habitual criminals, incorrigible and corrigible, and occasional criminals. “For the first group, perpetual imprisonment should depend on certain conditions fixed by law, and on the decision of the judge after a further inquiry. For the second group, the application of an undefined punishment after the completion of the first sentence will have to depend in the graver cases on the conditions laid down by law, and in less serious cases upon the same conditions together with the decision of the judge, who will always decide from time to time, after further inquiry, as to the necessity for prolonging the imprisonment. For the third group, the judge will have to be limited by law, in deciding the punishment, by special maximums, and with a general minimum.”
The Prison Congress of Rome naturally did not accept the principle of punishment for unfixed periods. More than that, advancing on the classical tendency, it decided that “the law should fix the maximum of punishment beyond which the judge may not in any case go; and also the minimum, which however may be diminished when the judge considers that the crime was accompanied by extenuating circumstances not foreseen by the law.”
It is only of late years, in consequence of the reaction against short terms of imprisonment, that the principle of segregation for unfixed periods has been developed and accepted by various writers, in spite of the feeble objections of Tallack, Wahlberg, Lamezan, von Jagemann, &c.
Apart, also, from theoretical discussion, this principle has been applied in a significant manner in the United States, by means of the “indeterminate sentence.” The House of Correction at Elmira (New York) for young criminals carries into effect, with special regulations of physical and moral hygiene, the indeterminate imprisonment of young prisoners; and this principle, approved by the Prison Congresses at Atlanta (1887), Buffalo (1888), and Nashville (1889), has been applied also in the New York prisons, and in the States of Massachusetts, Pennsylvania, Minnesota, and Ohio.
M. Liszt proposes that the indeterminate character of punishment should be only relative, that is to say, limited between a minimum and a maximum, these being laid down in the sentence of the judge. Special commissions for supervising the administration of punishment, consisting of the Governor of the prison, the Public Prosecutor, the judge who heard the case, and two members nominated by Government (instead of the court which passed sentence, as proposed by Villert and Van Hamel), should decide on the actual duration of the punishment, after having examined the convict and his record. Thus these commissions would be able to liberate at once (with or without conditions) or to order a prolongation of punishment, especially for habitual criminals.
With the formation of these commissions there might be associated the prison studies and aid of discharged prisoners referred to on a former page.
But I think that this proposal of M. Liszt is acceptable only for commissions of supervision, or of the execution of punishment, such as already exist in several countries, with a view solely to prison administration and benevolence, and in which of course the experts of criminal anthropology ought to take part, who, as I have suggested, should be included in every preliminary criminal inquiry. As for the determination of the maximum and minimum in such a sentence, I believe it would not be practicable; the acting commissions might find it necessary to go beyond them, and it would be opposed to the very principle of indeterminate segregation. The reason given by M. Liszt, that with this provision the contrast with actual systems of punishment would be less marked, does not seem to me decisive; for the principle we maintain is so radically opposed to traditional theories and to legislative and judicial custom that this optional passing of the limits would avoid no difficulty, whilst it would destroy the advantages of the new system.
In other words, when the conditions of the act committed and the criminal who has committed it show that the reparation of the damage inflicted is not sufficient by way of a defensive measure, the judge will only have to pronounce in his sentence an indefinite detention in the lunatic asylum, the prison for incorrigibles, or the establishments for occasional criminals (penal colonies, &c.).
The execution of this sentence will be rendered definite by successive steps, which will no longer be detached, as they now are, from the action of the magistrate, and taken without his knowledge, but will be a systematic continuation of his work. Permanent commissions for the supervision of punishment, composed of administrative functionaries, experts in criminal anthropology, magistrates, and representatives of the Public Prosecutor and the defence, would render impossible that desertion and oblivion of the convict which now follow almost immediately on the delivery of the sentence, with the execution of which the judge has nothing to do, except to see that he is represented. Pardon, or conditional liberation, or the serving of the full punishment, are all left at present to the chance of a blind official routine. These commissions would have great social importance, for they would mean on one hand the protection of society against imprudent liberation of the most dangerous criminals, and on the other hand the protection of the less dangerous against the danger of an imprisonment recognised as excessive and unnecessary.
Allied to the principle of indeterminate segregation is that of conditional release, which with the progressive prison system, known as the Irish, is now accepted in nearly all European countries. But conditional liberation in the system of definite punishments, without distinction amongst the types of criminals, is both contradictory in theory and ineffectual in practice. At present, indeed, it has only a mechanical and almost impersonal application, with one fallacious test, that of the alleged “good conduct” of the prisoner, which, according to the English Inquiry Commission in 1863, “can only have the negative value of the absence of grave breaches of discipline.”
It will be understood that conditional release, as it would be organised in the positive system of indeterminate segregation, ought only to be granted after a physio-psychological examination of the prisoner, and not after an official inspection of documents, as at present. So that it will be refused, no longer, as now, almost exclusively in regard to the gravity of the crime, but in regard to the greater or less re-adaptability of the criminal to social conditions. It will therefore be necessary to deny it to mad and born criminals who are guilty of great crimes.
Conditional liberation is now carried out under the special supervision of the police; but this is an ineffectual measure for crafty criminals, and disastrous for occasional criminals, who are shut out by the supervision from re-adaptation to normal existence. The system of indeterminate segregation renders all special supervision useless. Moreover, this duty only distracts policemen by compelling them to keep an eye on a few hundred liberated convicts, and to neglect thousands of other criminals, who increase the number of unknown perpetrators of crime.
Similarly as to the discharged prisoners’ aid societies, which, notwithstanding their many sentimental declamations, and the excellence of their intentions, continue to be as sterile as they are benevolent. The reason here also is that they forget to take into account the different types of criminals, and that they are accustomed to give their patronage impartially to all discharged prisoners, whether they are reclaimable or not. It must not be forgotten, moreover, that this aiding of malefactors ought not to be exaggerated when there are millions of honest workmen more unfortunate than these liberated prisoners. In spite of all the sentimentalism of the prisoners’ aid societies, I believe that a foreman will always be in the right if he chooses an honest workman for a vacancy in his workshops in preference to a discharged prisoner.
At the same time these societies may produce good results if they concern themselves solely with occasional criminals, and especially with the young, and make their study of crime contribute to the training of future magistrates and pleaders.
2. The second fundamental principle of the positive system of social defence against crime is that of indemnification for damage, on which the positive school has always dwelt, in combination with radical, theoretical, and practical reforms.
Reparation of damage suffered by the victims of crime may be regarded from three different points of view:–(1) As an obligation of the criminal to the injured party; (2) as an alternative for imprisonment for slight offences committed by occasional criminals; and (3) as a social function of the State on behalf of the injured person, but also in the indirect and not less important interest of social defence.
The positive school has affirmed the last two reforms–the second on the initiative of Garofalo and Puglia, and the third on my own proposal, which, as being more radical, has been more sharply contested by the classical and eclectic schools.
In my treatise on “The Right of Punishment as a Social Function,” I said: “Let us not be told that civil reparation is no part of penal responsibility. I can see no real difference between the payment of a sum of money as a fine and its payment as damages; but more than that, I think a mistake has been made in separating civil and penal measures too absolutely, whereas they ought to be conjoined for defensive purposes, in preventing certain particular anti-social acts.” And again, classifying the measures of social defence (“measures of prevention, reparation, repression, and elimination”), I said in regard to measures of reparation: “Our proposed reform is not intended to be theoretical merely, for indeed it may be said already that this liability to indemnify is established in the majority of cases; but it should be above all a practical reform, in the sense that, instead of separating civil and penal measures, we shall make their joint application more certain, and even require special regulations to compel the criminal judges, for instance, to assess the damages, and so avoid the delays and mischances of a new trial before the civil judges, and to compel the Public Prosecutor to make an official demand, even when through ignorance or fear there is no action on the part of the injured person, that the criminal should be condemned to make good the loss which he has inflicted. It will then be seen that the fear of having to make strict restitution will be a spur to the diligence of the well-to-do, in regard to involuntary offences, whilst for the poor we shall be able to impose work on behalf of the injured person in place of pecuniary damages.”
Shortly afterwards Garofalo wrote: “In the opinion of our school, for many offences, especially slighter offences against the person, it would be serviceable to substitute for a few days’ imprisonment an effectual indemnification of the injured party. Reparation of damage might become a genuine penal substitute, when instead of being, as now, a legal consequence, a right which can be enforced by the rules of civil procedure, it would become an obligation from which the accused could in no way extract himself.”
Of all the positive school, Garofalo has insisted most strongly on these ideas, enlarging upon them in various proposals for the practical reform of procedure.
The principle has made further progress since the speech of M. Fioretti at the first Congress of Criminal Anthropology (Rome, 1885), which adopted the resolution brought forward by MM. Ferri, Fioretti, and Venezian: “The Congress, being convinced of the importance of providing for civil indemnification, in the immediate interest, not only of the injured party, but also of preventive and repressive social defence, is of opinion that legislation could most expeditiously enact the most suitable measures against such as cause loss to other persons, and against their accomplices and abettors, by treating the recovery of damages as a social function assigned to its officials, that is to say, to the Public Prosecutor at the bar, to the judges in their sentences, to the prison officials in the ultimate payment for prison labour, and in the stipulation for conditional release.”
The classical principle that indemnification for loss caused by an unlawful act is a purely civil and private obligation of the offender (like that created by any breach of contract!), and that in consequence it ought to be essentially distinct from the penal sentence which is a public reparation, has inevitably caused the complete oblivion of indemnification in every-day judicial practice. For the victims of crime, finding themselves compelled to resort to the courts, and fearing the expense of a civil trial to give effect to the sentence of damages and interest thereon, have been driven to abandon the hope of seeing their loss actually and promptly compensated. Hence the necessity for some paltry compromise, which has to be accepted almost as a generous concession from the offender, together with the revival of private vengeance, and a loss of confidence in the reparatory action of social justice.
Even in the scientific domain it has come about that criminal experts have abandoned the question of indemnification to the civil experts, and these in their turn have almost suffered it to pass into oblivion, inasmuch as they always regarded it as belonging to matters of penal law and procedure.
It is only by the radical innovation of the positive school that this legal custom has received new energy and vitality.
I do not, however, intend in this place to concern myself with indemnification from the first point of view, namely, the forms of procedure necessary to render it more strict and effectual, such as the official demand and execution by the Public Prosecutor, even when no action is brought by the injured party; the fixing of the damages in every penal sentence; the immediate lien and claim upon the goods of the condemned person, so as to avoid the pretence of inability to pay; the paying down of the sum, or a part of the salary or wages of solvent defendants; compulsory labour by those unable to pay; the assignment of part of the prison wages for the benefit of the victims; the payment of all or most of the damages as a necessary condition of pardon or conditional release; the establishment of a treasury of fines for prepayment to the family of the victims; the liability of the heirs of the condemned persons for indemnifications, and so forth.
All these propositions are in sharp contrast with Art. 37 of the new Italian penal code, which has given no other guarantee to the victims of offences than the superfluous, or ironical, or immoral declaration that “penal condemnation does not prejudice the right of the injured person to restitution and indemnification”–as though there were any doubt of the fact.
I only wish to insist on the question of principle, that is, on the essentially public character which we assign to indemnification as a social function. For us, to compare the liability of the criminal to repair the loss caused by his crime with the liability arising from breach of contract is simply immoral.
Crime, just as it implies a social reaction in the form of an indefinite segregation of the criminal, when the act is serious and the author dangerous, ought also to imply a social reaction in the shape of indemnification, accessory to segregation when that is necessary, or adequate by itself for social defence when the act is not serious, and the author is not dangerous. For slight offences by occasional criminals, strict indemnification will, on the one hand, avoid the disadvantages of short terms of imprisonment, and will, on the other hand, be much more efficacious and sensible than an assured provision of food and shelter, for a few days or weeks, in the State prisons.
Indemnification may naturally take two forms, as a fine or an indemnity payable to the State, and as an indemnity or a reparation payable to the injured person.
It may also be added that the State should be made responsible for the rights of the victims, and give them immediate satisfaction, especially for crimes of violence, recouping itself from the offender, as it does, or ought to do, for legal costs.
The evolution of punishment is a striking proof of this. First, the reaction against crime is an entirely private concern; then it assumes a weaker form in pecuniary reparation, whereof, by and by, a portion goes to the State, which presently retains the whole sum, leaving to the victim the poor consolation of proceeding separately for an indemnification. Nothing therefore could be more in accord with this evolution of punishment than the proposed reform, whereby the indemnification of a merely private injury, as it is regarded in the primitive phase of penal justice,
becomes a public function, so far as it is the legal and social consequence of the offence.
The classical principles in this respect, and the practical consequences which flow from them, are more like a humorous farce than an institution of justice; and it is only the force of habit which prevents the world from realising its full comicality.
In fine, citizens pay taxes in return for the public services of the State, amongst which that of public security is the chief. And the State actually expends millions every year upon this social function. Nevertheless, every crime which is committed is followed by a grotesque comedy. The State, which is responsible for not having been able to prevent crime, and to give a better guarantee to the citizens, arrests the criminal (if it can arrest him–and seventy per cent. of DISCOVERED crimes go unpunished). Then, with the accused person before it, the State, “which ought to concern itself with the lofty interests of eternal justice,” does not concern itself with the victims of the crime, leaving the indemnification to their prosaic “private interest,” and to a separate invocation of justice. And then the State, in the name of eternal justice, exacts from the criminal, in the shape of a fine payable into the public treasury, a compensation for its own defence–which it does not secure, even when the crime is only a trespass upon private property!
Thus the State, which cannot prevent crime, and can only repress it in a small number of cases, and which fails accordingly in its first duty, for which the citizens pay it their taxes, demands a price for all this! And then again the State, sentencing a million and a half to imprisonment within ten years, puts the cost of food and lodging on the shoulders of the same citizens, whom it has failed either to defend or to indemnify for the loss which they have suffered! And all in the name of eternal retributive justice.
This method of “administering justice” must be radically altered. The State must indemnify individuals for the damage caused by crimes which it has not been able to prevent (as is partially recognised in cases of public disaster), recouping itself from the criminals.
Only then shall we secure a strict reparation of damage, for the State will put in motion its inexorable fiscal machinery, as it now does for the recovery of taxes; and on the other hand the principle of social community of interests will be really admitted and applied, not only against the individual but also for him. For we believe that if the individual ought to be always responsible for the crimes which he commits, he ought also to be always indemnified for the crimes of which he is the victim.
In any case, as the indefinite segregation of the criminal is the fundamental principle of the positive system of social defence against crime, apart from the technical systems of imprisonment and detention, so indemnification as a social function is a second essential principle, apart from the special rules of procedure for carrying it into effect.
These two fundamental principles of the positive system would still be incomplete if they did not come into practical operation according to a general rule, which leads up to the practical organisation of social defence–that is to say, the adaptation of defensive measures to the various criminal types.
The tendency of the classical theories on crime and prison discipline is in sharp contrast, for their ideal is the “uniformity of punishment” which lies at the base of all the more recent penal codes.
If for the classical school the criminal is but an average and abstract type, the whole difference of treatment is, of course, reduced to a graduation of the “amount of crime” and the “amount of punishment.” And then it is natural that this punitive dosing should be more difficult when the punishments are different in kind, and not very similar in their degrees of coincident afflictive and correctional power. Thus the ideal becomes a single punishment, apportioned first by the legislature and then by the judge, in an indefinite number of doses.
Here and there a solitary voice has been heard, even amongst the classical experts, objecting to this tendency towards dogmatic uniformity; but it has had no influence. The question brought forward by M. D’Alinge at the Prison Congress in London (Proceedings, 1872, p. 327), “whether the moral classification of prisoners ought to be the main foundation of penitentiary systems, either in association or on the cellular plan,” which he himself decided in the affirmative, was not so much as discussed, and it was not even referred to at the successive Congresses at Stockholm (1878), Rome (1885), and St. Petersburg (1889). On the contrary, the Congress at Stockholm decided that, “reserving minor and special punishments for certain slight infractions of the law, or for such as do not point to the corrupt nature of their authors, it is desirable to adopt for every prison system the greatest possible legal assimilation of punishments by
imprisonment, with no difference except in their duration, and the consequences following upon release.”
To positivists, the “uniformity of punishment,” even of mere detention, appears simply absurd, since it ignores the capital fact of different categories of criminals.
There must be homogeneity between the evil and its remedy; for, as Dumesnil says, “the prisoner is a moral (I would add a physical) patient, more or less curable, and we must apply to him the great principles of the art of medicine. To a diversity of ills we must apply a diversity of remedies.”
In this connection, however, we must avoid the two extremes, uniformity of punishment and the so-called individualisation of punishment, the latter especially in fashion amongst American prison experts. No doubt it would be a desirable thing to apply a particular treatment to each convict, after a physical and psychological study of his individuality, and of the conditions which led him into crime; but this is not practicable when the number of prisoners is very great, and the managing staff have no adequate notions of criminal biology and psychology. How can a governor individualise the penal treatment of four or five hundred prisoners? And does not the cellular system, which reduces the characteristic manifestations of the personal dispositions of prisoners to a minimum, levelling them all by the uniformity of routine and silence, render it impossible to observe and get to know the special character of each condemned person, and so specialising the discipline? Where, too, are we to find the necessary governors and warders who would know how to discharge this difficult duty? The solid fact that particular houses of correction or punishment are in excellent condition when their governors have the psychological intuition of a De Metz, a Crofton, a Spagliardi, or a Roukawichnikoff, and languish when he departs, strikingly demonstrates that the whole secret of success lies in the spirit of a wise governor, skilled in psychology, rather than in the slender virtue of the cell.
Just as an imperfect code with good judges succeeds better than a “monumental” code with foolish judges, so a prison system, however ingenious and symmetrical, is worthless without a staff to correspond.
And as the question of the staff is always very serious, especially for financial reasons, I believe that, instead of the impracticable idea of individualisation in punishment, we ought to substitute that of classification, which is equally efficacious and more easily applied. It cannot be denied that criminal anthropologists are not all agreed on the classification of criminals. But I have already shown that the differences between proposed classifications are only formal and of secondary importance; and again, the number of those who agree to the classification which I have proposed increases day by day.
Before inquiring how we can practically organise the positive system of social defence on the basis of this anthropological classification of criminals, we must bear in mind two rules, common to all the technical proposals of the same system.
First, care must be taken that segregation does not become or continue to be (as it is too often at present) a welcome refuge of idleness and criminal association, instead of a deprivation.
Penitentiaries for condemned prisoners–the classical prison experts make no distinction between their cells for prisoners before trial and those for convicts!–should not be so comfortable as to excite the envy (a vast injustice and imprudence) of the honest and ill-fed rural labourer vegetating in his cottage, or of the working-man pining in his garret.
Secondly, the obligation to labour should be imperative for all who are in prison, except in case of sickness. Prisoners should pay the State, not as now for their tobacco and wine, but for food, clothes, and lodging, whilst the remainder of their earnings should go to indemnify their victims.
The classical theory declares that “the State,” as Pessina writes, “being compelled to adopt deprivation of liberty as the principal means of penal repression and retribution, contracts an absolute obligation to provide those whom they punish in this way not only with bodily sustenance, but also with the means of supplying their intellectual and moral needs.” So the State maintains in idleness the majority even of those who are said to be “sentenced to hard labour,” and the offence, after it has served the turn of the offender, further assures him free lodging and food, shifting the burden on to honest citizens.
I cannot see by what moral or legal right the crime ought to exempt the criminal from the daily necessity of providing for his own subsistence, which he experienced before he committed the crime, and which all honest men undergo with so many sacrifices. The irony of these consequences of the classical theories could not, in fact, be more remarkable. So long as a man remains honest, in spite of pathetic misery and sorrow, the State takes no trouble to guarantee for him the means of existence by his labour. It even bans those who have the audacity to remind society that every man, by the mere fact of living, has the right to live, and that, as work is the only means of obtaining a livelihood, every man has the right (as all should recognise the duty) of working in order to live.
But as soon as any one commits a crime, the State considers it its duty to take the utmost care of him, ensuring for him comfortable lodging, plenty of food, and light labour, if it does not grant him a happy idleness! And all this, again, in the name of eternal and retributive justice.
It may be added that our proposals are the only way of settling the oft-recurring question as to the economic competition (by the price of commodities), and the moral competition (in the regularity of work) which prison labour unjustly wages with free and honest labour. As a matter of fact, as prisoners can only remain idle or work, they must clearly be made to work. But they must be made to work at trades which come less into competition with free labour and it is especially necessary to give prisoners wages equal to those of free labourers, on condition that they pay the State for their food, clothes, and lodging, whilst the remainder goes to indemnify their victims.
Over the prison gates I should like to carve that maxim of universal application: “He who will not work, neither shall he eat.”
Since the novel proposals put forward half a century ago, amongst others by doctors Georget and Brierre de Boismont, a whole library of volumes has been published in favour of criminal lunatic asylums. A few voices here and there were heard in opposition or reserve, but these have almost entirely ceased.
Criminal lunatic asylums were adopted in England as early as 1786. In 1815 Bethlehem Hospital was appropriated to criminal lunatics, and the Broadmoor Asylum was founded in 1863. Similar asylums exist at Dundrum in Ireland (1850), at Perth in Scotland (1858), at New York (1874), and in Canada (1877).
On the continent of Europe there is not to this day a regular asylum for mad criminals, though France, after an experiment in treating condemned madmen at Bicetre, opened a separate wing for them in the prison at Gaillon. Holland has assigned to them the hospital of Bosmalen (Brabant); Germany has special wards in the establishments at Waldheim, Bruchsaal, Halle, and Hamburg; and Italy, after founding a special ward in 1876, at the establishment for relapsed prisoners at Aversa, has converted the Ambrogiana establishment at Montelupo in Tuscany, into an asylum for insane convicts, and for prisoners under observation as being of unsound mind. The new Italian penal code, though not openly recognising the foundation of asylums for criminals acquitted on the ground of insanity, has, in its general spirit of eclecticism, given judges the power of handing them over to the competent authority when it would be dangerous to release them (Art. 46). At the Montelupo Asylum criminals acquitted on the ground of insanity are also detained, at first under observation, then by a definite order from the president of the Tribunal, who can revoke his order on the petition of the family, or of the authorities.
The inquiry into existing legislation on insane criminals, undertaken by the “Societe Generale des prisons de Paris,” showed that in France, Germany, Austria-Hungary, Croatia, Belgium, Portugal, and Sweden, the authors of crimes or offences who are acquitted on the ground of insanity are withdrawn from all control by the judicial authority, and entrusted to the more or less regular and effectual control of the administrative authority. In England, Holland, Denmark, Spain, and Russia, on the contrary, the judicial authority is empowered and even compelled to order the seclusion of these individuals in an ordinary or a criminal lunatic asylum.
Of the objections raised against this form of social defence against insane criminals, I pass over that of the cost, which is considerable; for even from the financial point of view I believe that the actual system, which gives no guarantee of security against madmen with criminal tendencies, is more costly to the administration, if only by reason of the damage which they cause. I also pass over the other objection, based on the violent scenes which are said to be inseparable from the association of such prisoners; for experience has shown that forebodings are ill founded in regard to criminal asylums where the inmates are classified according to their tendencies, under the direction of a staff with special knowledge, who are able to prevent such outbreaks. In ordinary asylums, on the other hand, a few insane criminals are sufficient to render the maintenance of order very difficult, and their inevitable and frequent outbreaks have dire effects on the other patients.
The most serious and repeated difficulties in regard to lunatic asylums spring from the very principles of the defensive function of society.
It is said in the first place that the author of a dangerous action is either a madman or else a criminal. If he is a madman, he has nothing to do with penal justice–so Fabret, Mendel, and others have said; his action is not a crime, for he had no control over himself, and he ought to go to an ordinary asylum, special measures being taken for him, as for every other dangerous madman. Or else he is a criminal, and then he has nothing to do with a lunatic asylum, and he ought to go to prison.
But there is a fallacy in this dilemma, for it leaves out the intermediate cases and types, where particular individuals are at the same time mad and criminal. And even if it were a question of madmen only, the logical consequence would not be to bar out special asylums, for it seems clear that if ordinary madmen (not criminals, that is, not the authors of dangerous actions) ought to go to an ordinary asylum, criminal madmen, or madmen with a tendency to commit dangerous or criminal actions, as well as those who have committed them, ought to go to a special asylum for this category of madmen. For, on the other hand, we constantly see that administrative authorities which observe the same rules for the seclusion of ordinary and criminal madmen do not prevent the release of the latter, some time after the crime, when the disturbance of mind and even the recollection of the deed are all but effaced; and criminal madmen commit other violent or outrageous excesses, very soon after they are left exposed to their diseased tendencies.
It may be answered that it is sufficient to have special wings in ordinary asylums, which would also get over the repugnance of families against the association of their quiet and harmless patients with murderous and outrageous madmen. But experience has already proved that these special wards do not work well, for it is too difficult with the same staff to apply such varied treatment and discipline as are necessary for ordinary and criminal lunatics.
Fabret says that “a so-called criminal, when he is seen to be mad, should cease to be regarded as a criminal, and ought purely and simply to resume his ordinary rights.”
But, in the first place, if a madman is distinguished from all other inoffensive madmen by the grave fact of having killed, or burned, or outraged, it is clear that he cannot “purely and simply” return to the same kind of treatment which is given to harmless lunatics.
The truth is that this argument applies to a large number of ideas which science is continually weeding out, and which have proceeded on the assumption that madness is an involuntary misfortune which must be treated, and that crime is a voluntary fault which must be chastised. It is evident on the other hand that crime as well as folly, being the result of abnormal conditions of the individual, and of the physical and social environment, is always a question for social defence, whether it is or is not accompanied in the criminal by a more or less manifest and clinical form of mental malady.
The same reply holds good for the second objection to asylums for criminal madmen, when it is said that a madman cannot, for the sole reason that he has killed or stolen, be shut up indefinitely, perhaps for ever, in an asylum.
Mancini, who was keeper of the seals, and at the same time a great criminal pleader, aptly expressed the ideas of the classical school when replying to an interpellation of Deputy Righi on the foundation of criminal lunatic asylums:–“I could never understand how the same court, which is obliged by law to acquit upon a verdict of the jury that the accused is insane, and therefore not responsible, could also decree the compulsory seclusion in an asylum, for any period, of the same accused person. . . . Is it because he has committed a crime? But that is not true, for the man who did not know what he was doing, and who for that reason has been declared innocent before the law, and irresponsible, cannot have committed a crime. There is consequently no legal reason why he should lose the exercise and enjoyment of that liberty which is not denied to any other unfortunate beings who are diseased like himself.”
It would be impossible to put more clearly the pure classical theory on crime and punishment; but perhaps it would be equally impossible to show less solicitude for social defence against criminal attacks. For it is certain that the mad murderer “has committed no crime” from the ethical and legal point of view of the classical school; but it is still more certain that there is a dead man, and a family left behind who may be ruined by the deed, and it is very probable that this homicide, “innocent before the law,” will renew his outrage on other victims–and at any rate they are innocent.
And as for the indefinite period of seclusion in an asylum, it is well to remember, from the point of view of individual rights, that the formula with which a mad criminal is committed to an asylum “during her Majesty’s pleasure” had its origin in England, in the classic land of the habeas corpus–the sheet anchor of the ordinary citizen. Again, it is easy to see that the indefinite seclusion of mad criminals is rendered necessary by the same reasons which create the fundamental rule for criminals of every kind. It may therefore come to a question of allowing or disallowing the general principles of the positive school. But it cannot be denied that they are unassailable, both in theory and in practice. Crime is a phenomenon as natural as madness–the existence of society compels the organised community to defend itself against every anti-social action of the individual–the only difficulty is to adapt the form and duration of this self- defence to the form and intensity (the motives, conditions, and consequences) of the action. Indefinite seclusion, therefore, in a special establishment is inevitable on account of the special condition of these individuals.
The practical considerations of social defence are so strong that the great majority of classical criminal experts now accept criminal lunatic asylums, in spite of their manifest contradiction of the formal theories of moral responsibility, on the strength of which these asylums were, and still are, opposed by the intransigents of the classical school. This is why the new Italian penal code, in spite of its progressive aim, had not the courage in 1889 to adopt them frankly; and in the definitive text, as in the ministerial draft, it took refuge in an eclectic arrangement which has already met with a crowd of obstacles, due to the vagueness of the principles inspiring the code.
These criminal lunatic asylums ought to be of two kinds, differing in their discipline, one for the insane authors of serious and dangerous crimes, such as homicide, incendiarism, rape, and the like; and the other for slighter crimes, such as petty theft, violent language, outrages on public decency, and the like. For the latter, seclusion should be shorter than for the others. Thus in England convicts are sent to the State Asylum at Broadmoor, whilst minor offenders are sent to a county asylum.
Persons thus confined should be (1) prisoners acquitted on the ground of insanity, or sentenced for a fixed period, at the preliminary inquiry; (2) convicts who become insane during the expiation of their sentence; (3) insane persons who commit crimes in the ordinary asylums; (4) persons under observation for weak intellect in special wards, who have been put on their trial, and given grounds for suspecting madness.
At Broadmoor, on December 31, 1867, there were 389 male patients and 126 female; and in 1883 there were 381 males and 132 females, thus classified:–
In Germany, in the prison at Waldheim, the proportion of mad criminals to the corresponding classes of ordinary criminals was as follows:–
That is to say, there was (1) a very large proportion of madmen amongst the military offenders, which may point to the effect of military life, or else a careless selection for conscription, or both causes taken together; and (2) a greater proportion of mad criminals amongst the more serious offenders, partly because the authors of crimes of violence are subjected to more strict and frequent observation for madness.
It seems to me that this fact, which is also confirmed by the figures for England, is the most cogent argument in favour of criminal lunatic asylums.
For born criminals, since, as Dr. Maudsley says, we are face to face, if not exactly with a degenerate species, at least with a degenerate variety of the human species, and the problem is to diminish their number as much as possible, a preliminary question at once arises, namely, whether the penalty of death is not the most suitable and efficacious form of social defence against the anti-social class, when they commit crimes of great gravity.
It is a question which for a century past has divided the criminal experts and wearied the general public, with perhaps more sentimental declamations than positive contributions; a question revived by the positive school, which, however, only brought it forward, without discussing it, at the first Congress on Criminal Anthropology at Rome; whilst it has been recently settled by the new Italian penal code, which is the first code amongst the leading States to decree (January 1, 1890) the legal abolition of the death penalty, after its virtual abolition in Italy since the year 1876, except for military crimes.
Amongst the classical experts, as amongst the positivists, there are those who would abolish and those who would retain the death penalty; but the disagreement on this subject is not equally serious in the two camps. For whilst the classical abolitionists almost all assert that the death penalty is inequitable, the positivists are unanimous in declaring it legitimate, and only a few contest its practical efficacy.
It seems to me that the death penalty is prescribed by nature, and operates at every moment in the life of the universe. Nor is it opposed to justice, for when the death of another man is absolutely necessary it is legitimate, as in the cases of lawful self-defence, whether of the individual or of society, which is admitted by classical abolitionists such as Beccaria and Carrara.
The universal law of evolution shows us also that vital progress of every kind is due to continual selection, by the death of the least fit in the struggle for life. Now this selection, in humanity as with the lower animals, may be natural or artificial. It would therefore be in agreement with natural laws that human society should make an artificial selection, by the elimination of anti-social and incongruous individuals.
We ought not, however, to carry these conclusions too far, for every problem has its relative bearings, and positive observation, unlike logic, does not admit simple and exact solutions. It must be observed that this idea of artificial selection, though true, would lead to exaggerated conclusions, if it were carried into the sociological field without reserve, and without the necessary balance between the interests and rights of the community and of individuals. If this idea were taken absolutely, indeed, it would render legitimate and even obligatory an ultra-Spartan elimination of all children born abortive or incurably diseased, or anti- social through their idiotcy or mental insanity.
On the other hand, to recognise that the death penalty may be legitimate as an extreme and exceptional measure is not to acknowledge that it is necessary in the normal conditions of social life. Now it cannot be questioned that in these normal conditions society may defend itself otherwise than by death, as by perpetual seclusion or transportation, the failure of which, by the escape of convicts, is too rare to be decisive against it.
The preventive and deterrent efficacy of the death penalty is very problematical when we examine it not by our own impressions as average human beings, calmly and theoretically, but with the data of criminal psychology, which is its only true sphere of observation. Every one who commits a crime is either carried away by sudden passion, when he thinks of nothing, or else he acts coolly and with premeditation, and then he is determined in his action, not by a dubious comparison between the death penalty and imprisonment for life, but simply by a hope of impunity. This is especially the case with born criminals, whose main psychological characteristic is an excess of improvidence, combined with moral insensibility.
If a convict tells us that he fears death, this merely means that he has the momentary impression, which cannot, however, restrain him from crime, for here again, by the same psychological tendency, he will be subject only to the criminal temptation.
And if it is true that, when the criminal has been tried and condemned, he fears death more than imprisonment for life (always excepting condemned suicides, and those who by their physical and moral insensibility laugh at death up to the foot of the scaffold), it is none the less necessary to try and to condemn them.
Indeed statistics prove that the periodic variations of the more serious crimes is independent of the number of condemnations and executions, for they are determined by very different causes. Tuscany, where there has been no death penalty for a century, is one of the provinces with the lowest number of serious crimes; and in France, in spite of the increase of general crime and of population, charges of murder, poisoning, parricide, and homicide, dropped from 560 in 1826 to 430 in 1888, though the number of executions diminished in the same period from 197 to 9.
The death penalty is an easy panacea, but it is far from being capable of solving a problem so complex as that of serious crime. The idea of killing off the incorrigibles and the born criminals is easily conceived, and Diderot, in his Letter to Landois, maintained that it was a natural consequence of the denial of free-will, saying: “What is the grand distinction between man and man? Doing good and doing harm. The man who does harm ought to be extinguished, not punished.” But as against this too facile notion we must look to experience, and to the other material and moral conditions of social life, for the necessary balance and completion.
I will not further discuss the death penalty, for it is by this time an exhausted question from the intellectual standpoint, and has passed into the domain of prejudice for or against, and this prejudice is concerned rather with the more or less repugnant method of execution than with the penalty itself. In its favour there is the absolute, irrevocable, and instantaneous elimination from society of an individual who has shown himself absolutely unadaptable, and dangerous to society. But I hold that, if we would draw from the death penalty the only positive utility which it possesses, namely, artificial selection, then we must have courage enough to apply it resolutely in all cases where it is necessary from this point of view, that is to say, to all born criminals, who are the authors of the most serious crimes of violence. In Italy, for example, it would be necessary to execute at least one thousand persons every year, and in France nearly two hundred and fifty, in place of the annual seven or eight.
Otherwise the death penalty must be considered as an unserviceable and neglected means of terror, merely to be printed in the codes; and in that case it would be acting more seriously to abolish it.
So regarded it is too much like those motionless scarecrows which husbandmen set up in their fields, dotted about with the foolish notion that the birds will be frightened away from the corn. They may cause a little alarm at first sight; but by and by the birds, seeing that the scarecrow never moves and cannot hurt them, lose their fear, and even perch on the top of it. So it is with criminals when they see that the death penalty is never or very rarely applied; and one cannot doubt that criminals judge of the law, not by its formulation in the codes, but by its practical and daily application.
Since the deterrent efficacy of punishments in general, including the death penalty, is quite insignificant for the born criminals, who are insensible and improvident, the rare cases of execution will certainly not cure the disease of society. Only the slaughter of several hundred murderers every year would have a sensible result in the way of artificial selection; but that is more easily said than done. And I imagine that, at normal periods, in no modern and civilised State would a series of daily executions of the capital sentence be possible. Public opinion would not endure it, and a reaction would soon set in.
In Finland, between 1824 and 1880 there was no execution. In Holland, Portugal, Roumania, and Italy, capital punishment is abolished by law; and in Belgium virtually. Switzerland also has abolished it, but a few cantons, under the influence of a few atrocious and recurrent crimes, revived it in their codes, but did not carry it out. In the United States it has been abolished in Michigan, Wisconsin, Rhode Island, and Maine. An inquiry into the legislation and statistics relating to murder in Europe and America was instituted by Lord Granville in July, 1880 and the results were published in 1881. (“Reports on the Laws of Foreign Countries respecting Homicidal Crime.”)
In a manuscript register of executions in the Duchy of Ferrara between 970 and 1870, I found that, excluding the nineteenth century, there were 5,627 executions in 800 years (3,981 for theft, and 1,009 for homicide), that is an average of 700 in each century, in the city of Ferrara alone. And at Rome, according to the records of the Convent of St. John the Beheaded, between 1500 and 1770 there were 5,280 executions, or 1,955 in each century, in the city of Rome alone. Now, if we consider the proportion of population in Ferrara and Rome to that of Italy as a whole, we reach an enormous number of executions in former centuries, which can scarcely have been fewer than four hundred every year.
These were serious applications of the death penalty, to which we certainly owe in some degree the purification of society by the elimination of individuals who would otherwise have swelled their criminal posterity.
In conclusion, if we wish to treat the death penalty seriously, and derive from it the only service of which it is capable, we must apply it on this enormous scale; or else, if it is retained as an ineffectual terror, we should be acting more seriously if we were to expunge it from the penal code, after excluding it from our ordinary practice. And as I shall certainly not have the courage to ask for the restoration of these mediaeval modes of extermination, I am still, for the practical considerations above mentioned, a convinced abolitionist, especially for such countries as Italy, where a more or less artificial and superficial current of public opinion is keenly opposed to capital punishment.
Setting aside the death penalty, as unnecessary in normal times, and inapplicable in the only proportions which would make it efficacious, for the born criminals who commit the most serious crimes, there remains only a choice between these two modes of elimination–transportation for life and indefinite seclusion.
This is the only choice for the positivists; for we cannot attach much importance to the opinion of the German jurists, Holtzendorff, Geyer, and others, who would do away with perpetual imprisonment altogether. Professor Lucchini took up this theory in Italy, saying that the personal freedom of the convict ought to be limited in its exercise, but not suppressed as a right, and that imprisonment for life destroys “the moral and legal personality of the criminal in one of its most important human factors, the sociable instinct.” He added that punishment “ought not to become exhausted by excess of duration.”
Surely it is not speaking seriously to say that the right of the individual cannot be suppressed if necessity demands it, when we see it done every day in cases of legitimate self-defence; and that punishment is exhausted by excess of duration, when it is precisely the duration of banishment from one’s kind which constitutes the only real efficacy of punishment; and to speak of the sociable instinct in connection with the most anti-social criminals.
And it is only by oblivion of the elementary and least contestable data of criminal bio-psychology that the exclusion of all life- punishments can be maintained, on the ground that this perpetuity “is contrary to the reformative principle of punishment, to the principle that punishment ought to aim not only at afflicting the prisoner, but also at arousing in him, if possible, the moral sense, or at strengthening him, and opening up to him a path by which he can hope to be readmitted into society, amended and rehabilitated. Perpetuity of punishment excludes this possibility.”
The framers of the Dutch penal code replied to these observations of Professor Pols, first in the name of common sense, that “punishment is not inflicted for the benefit of the prisoner, but for that of society,” and secondly, with something of irony, that “even for the sake of the abolition of capital punishment, and to prevent a reaction in favour of this punishment, we must uphold the right of shutting up for ever the few malefactors whose release would be dangerous.”
It is entirely futile to consider the amendment of criminals as opposed to imprisonment for life, when it is known that born criminals, authors of the most serious crimes, for whom such punishment is reserved, are precisely those whose amendment is impossible, and that the moral sense attributed to them is only a psychological fallacy of the classical psychologist, who attributes to the conscience of the criminal that which he feels in his own honest and normal conscience.
But it is easy enough to see that this opposition to perpetual detention, though it has remained without effect, as being too doctrinaire and sentimental, is only a symptom of the historical tendency of the classical schools, entirely in favour of the criminal, and always tending to the relaxation of punishments. The interests of society are too much disregarded when it is sought to pass from the abolition of capital punishment to that of imprisonment for life. If the tendency is not checked, we may expect to see some classical expert demanding the abolition of all punishment for these unfortunate criminals, with their delicate moral sensibilities!
The question, therefore, is between transportation or indefinite seclusion.
Much has been written for and against transportation, and there was a lively discussion of the problem in Italy, some twenty years ago, between M. Beltrani Scalia, a former director-general of prisons, and the advocates of this form of elimination of criminals. Without going into the details of the controversy, it is evident that the experience of countries like England, which for a long time transported its criminals at a cost of hundreds of millions, and then abandoned the practice, is in itself a noteworthy example.
Yet it is only an objection, so far as it goes, against transportation as formerly practised, that is to say, with enormous prisons built in distant lands. M. Beltrani Scalia justly said that we might as well build them at home, for they will cost less and be more serviceable. The example of France in its practical application of this policy is not encouraging.
However, there is in transportation, as in the death penalty, an unquestionable element of reason. For when it is perpetual, with very faint chances of return, it is the best mode of ridding society of its most injurious factors, without our being compelled to keep them in those compulsory human hives which are known as cellular prisons.
But again, there is the question of simple transportation, first put into practice by England, which consists of planting convicts on an island or desert continent, with the opportunity of living by labour, or else of letting them loose in a savage country, where the convicts, who in civilised countries are themselves half savage, would represent a partial civilisation, and, from being highwaymen and murderers, might become military leaders in countries where, at any rate, the revival of their criminal tendencies would meet with an immediate and energetic resistance, in place of the slow machinery of our criminal trials.
For Italy, however, the question presents itself in a special form; for there a sort of internal deportation, in the lands which are not tilled on account of the malaria, would be far more serviceable. If the dispersion of this malaria demands a human hecatomb, it would evidently be better to sacrifice criminals than honest husbandmen. Transportation across the sea was very difficult for Italy a few years ago, especially in view of the lack of colonies; for then there was always the obstacle of which Franklin spoke in reference to transported English convicts, in his well-known retort: “What would you say if we were to transport our rattlesnakes to England?” But since Italy has had her colony of Erythrea the idea of transportation has been taken up again. In May, 1890, I brought forward a resolution in Parliament in favour of an experimental penal colony in our African dependencies. The proposal found many supporters, in spite of the opposition of the keeper of the seals, who forgot that he had written in his report on the draft penal code that prisoners might also be detained in the colonies. Soon afterwards the proposal was renewed by Deputy De Zerbi, and accepted by M. Beltrani Scalia, director-general of prisons.
In a similar manner M. Prins declares himself in favour of transportation for Belgium, since the constitution of the Congo State.
But it is my matured opinion that transportation ought not to be an end in itself. The penal colony for adults ought to be a pioneer of the free agricultural colony. The problem of a penal colony in our African possessions cannot, therefore, be solved in advance of two other questions.
Before all, we must see whether these possessions offer suitable districts for agricultural colonisation. And secondly, we must consider whether convicts would not cost less to transport into districts nearer home which need to be cleared, a plan which would also prevent their going over to the enemy, becoming leaders or guides of the barbarous tribes which are at war with us.
In any case, whether we decide on transportation to the interior or beyond the seas, for born and habitual criminals, there is still the question as to the form of seclusion.
In this connection the idea has been suggested of “establishments for incorrigibles,” or hardened criminals, wherein should be confined for life, or (the same thing in this case) for an indefinite period, born criminals who have committed serious crimes, habitual criminals, and confirmed recidivists.
The congenital character and hereditary transmission of criminal tendencies in these individuals fully justify the words of Quetelet, that “moral diseases are like physical diseases: they are contagious, or epidemic, or hereditary. Vice is transmitted in some families in the same way as scrofula or consumption. The greater number of crimes come from a comparatively few families, which need a special supervision, an isolation like that which we impose on sick persons suspected of carrying the germs of infection.” So Aristotle speaks of a man who, being accused of beating his father, answered: “My father beat my grandfather, who used to beat his father cruelly; and you see my son–before he is grown up he will fly into passions and beat me.” And Plutarch added to this: “The sons of vicious and corrupt men reproduce the very nature of their parents.”
This is the explanation of Plato’s idea, who, “admitting the principle that children ought not to suffer for the crimes of their parents, yet, putting the case of a father, a grandfather, and a great-grandfather who had been condemned to death, proposed that their descendants should be banished, as belonging to an incorrigible family.” Carrara called this a mistaken idea, but it seems to us to be substantially just. It may be remembered that when De Metz in 1839 founded his agricultural penal colony at Metray, once celebrated but now in decay (for the whole success of these foundations depends on the exceptional psychological qualities of their governors), out of 4,454 children, 871, or 20 per cent., were the children of convicts. We quite agree with Crofton’s proposal to place the children of convicts in industrial schools or houses of correction.
A special establishment for the perpetual or indefinite seclusion of incorrigible criminals has been proposed or approved in Italy by Lombroso, Curcio, Barini, Doria, Tamassia, Garofalo, Carelli; in France by Despine, Labatiste, Tissot, Leveille; in Russia by Minzloff; in England by May; in Germany by Kraepelin and Lilienthal; in Austria by Wahlberg; in Switzerland by Guillaume; in America by Wines and Wayland; in Holland by Van Hamel; in Portugal by Lucas; &c.
But I believe that, in order to establish the fact of incorrigibility, the number of relapses should vary in regard to different criminals and crimes. Thus, for instance, in the case of murders, especially by born criminals, the first crime should lead to an order for imprisonment for life. In the case of less serious crimes, such as rape, theft, wounding, swindling, &c., from two to four relapses should be necessary before the habitual criminal is sentenced to such imprisonment.
These ideas are approximately carried out, especially in the countries which, having made no great advance in the criminal sciences, meet with less of pedantic opposition to practical reforms.
Thus we find that France, after the proposals of Michaux, Petit, and Migneret, and especially after the advocacy of M. Reinach, followed by several publications of a like kind, agreed to the law of 1885 on the treatment of recidivism.
Messrs. Murray Brown and Baker spoke at the Prison Congress at Stockholm and at the Societe Generale des Prisons at Paris, of the system of cumulative and progressive sentences adopted, though not universally, in England with respect to hardened criminals. The term of imprisonment is increased, almost regularly, on each new relapse. This is the system which had already been suggested by Field and Walton Pearson at the Social Science Congress in October, 1871, and subsequently by Cox and Call, who was head of the police at Glasgow, at the Congress of 1874, and which, as Mr. Movatt pointed out, was adopted in the Indian penal code, and had been established in Japan by a decree fixing perpetual imprisonment after the fourth relapse.
The delegate from Canada at the Prison Congress at Stockholm testified that short terms of imprisonment increased the number of offences. “After a first sentence many offenders in this class become professional criminals. Professional thieves, who are habitual offenders, ought, with few exceptions, to be sentenced to imprisonment for life, or for a term equivalent to the probable remainder of their life.” The draft Russian code, in 1883, provides that, “If it is found that the accused is guilty of several offences, and that he has committed them through habitual criminality, or as a profession, the court, when deciding upon the punishment in relation to the different crimes, may increase it,” &c. And the Italian penal code, though with much timidity, has decreed a special increase of punishment for prisoners “who have relapsed several times.”
Quite recently, Senator Berenger introduced a measure in France “on the progressive increase of punishment in cases of relapse,” which became law on March 26, 1891, under the title of “the modification and increase of punishments.”
It is therefore very probable that even the classical criminalists will end by accepting the indefinite seclusion of hardened criminals, as they have already come to accept criminal lunatic asylums, though both ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St. Petersburg in 1889 the question was first propounded “whether it can be admitted that certain criminals should be regarded as incorrigible, and, if so, what means could be employed to protect society against this class of convicts.” And speaking as a delegate from the Law Society of St. Petersburg, M. Spasovitch acknowledged that “this question bore the stamp of its origin on its face. Of all the questions in the programme, it seemed to be the only one directly inspired by the principles of the new positive school of criminal anthropology, whose theories, propagated beyond the land of their birth in Italy, tended to a radical reform in science as well as in legislation, in the penal law as well as in procedure, in ideas of crime as well as in the modes of repression.”
The Congress, in spite of some expressions of reserve, as when Madame Arenal platonically observed that “an uncorrected criminal is not synonymous with an incorrigible criminal,” adopted the following resolution:–“Without admitting that from the penal and penitentiary point of view there are any absolutely incorrigible criminals”–which is pure pedantry–“yet since experience shows that there are in fact individuals who resist the combined action of punishment and imprisonment”–a notable admission!–“and who habitually and almost professionally renew their violation of the laws of society, this section of the Congress is unanimously of opinion that it is necessary to adopt special measures against such individuals.”
Similarly the International Union of Penal Law, in its session at Berne (August, 1890), expressed the opinions of the majority in the following terms:–“There are malefactors for whom, in view of their physical and moral condition, the constant application of ordinary punishments is inadequate. In this class are specially included the hardened recidivists, who ought to be considered as degenerate criminals, or criminals by profession. Malefactors ought to be subjected, according to the degree of their degeneration, or of the danger which they threaten, to special measures, framed with the purpose of preventing them from inflicting harm, and of amending them if possible.” And in the session at Christiania (August, 1891), after the remarkable contribution of Van Hamel, the Union, after rejecting the proposition of Felisch, which spoke of “the uncorrected” in place of the “incorrigible,” unanimously approved the conclusions of Van Hamel:–“With a view to the more complete study of the character and injurious influence of habitual offenders, notably of such as are incorrigible (a study which is absolutely indispensable for legislation), the Union instructs its officers to urge upon the various Governments the great importance of statistics of recidivism which shall be detailed, precise, uniform, and adapted for comparative study. For incorrigible habitual offenders it is absolutely necessary that the trial on the last charge shall not definitely determine the treatment of the offender, but that the decision shall be carried on to a further inquiry, which shall have regard to the offender personally, to his past, and to his conduct during a fixed period of observation.
It is now necessary to inquire what form the perpetual or indefinite segregation of the criminal should assume.
Two great innovations in regard to prisons, as M. Tarde observes, have been made or developed within the past century, which are not yet adopted in every country: penal colonies, whereof transportation is only a factor, and the prison cell. The cell has assumed a leading position since it was brought over from America to Europe, where, however, the cellular prisons of St. Michael at Rome, and of Gand, had preceded it.
The cellular system, a product of the reaction against the enormous physical and moral putrefaction of the inmates of common prisons and labour establishments, may have had, and doubtless still has many advocates, amongst other reasons for the spirit of pietism and religious penitence which always goes with it; but it is open to strong criticism.
There has already been, amongst the same prison experts, a certain retrogressive movement in regard to isolation. Absolute and continued isolation, indeed, both by day and by night (“solitary confinement”) was at first recommended, even to the introduction, grotesque in spite of good intentions, of hoods and masks for the prisoners, a mediaeval reminiscence almost parallel with the Brothers of Pity in some Italian towns, for help to the wounded. Presently it was seen that this sort of thing certainly could not assist in the amendment of the guilty, and then isolation was relaxed (still making it applicable both by day and by night) with visits to prisoners by the chaplain, governors, and representatives of vigilance and prisoners’ aid societies. This is called “separate confinement.” After this it was recognised that the real need for isolation was at night, and then the Auburn system was arrived at: isolation in cells by night, with daily labour in common, with an obligation (which cannot be enforced) of silence. And finally, seeing that in spite of the threefold panacea of every prison system (isolation, work, and instruction, especially religious instruction) relapses still increased, it was understood that it might not be very useful to subject a man for months or years to the monastic life of Trappist brothers, in these monstrous human hives (which Bentham brought to the notice of the French Constituent Assembly under the name of “panopticons”), and to discharge him from prison at the end of his term, and plunge him into all the temptations of an atmosphere to which his lungs had become disaccustomed.
Then the “progressive system” was introduced, first in England, where it was devised by Maconochie, next in Ireland, which has given it a name, alternated with that of Sir W. Crofton. This is the most symmetrically perfect machinery, though reminding one somewhat of a company of marionettes. It confirms what was said by Haeckel, that the actual is a summary of the moods of aspiration, for it precisely sums up the systems which preceded it, each of which constitutes a phase of the progressive system. There is first of all a period of brotherly charity–absolute isolation for the prisoner to fall back upon his conscience, or to listen to the voice of remorse, or to receive an impression of devotion and fear. After this comes the Auburnian phase, of isolation by night and labour (when labour is accorded) by day, with the constraint of silence. Then an intermediary period in the agricultural colony or labour-gang outside the prison, like a period of convalescence, to accustom the lungs to the keen air of liberty. This is the phase added by Sir W. Crofton to the English system. Lastly comes the period of conditional release (on ticket of leave), whereby the last portion of the punishment is remitted, and will count as expiated if during the time of liberation, and for a succeeding period, the convict does not commit another crime.
The progressive or retrogressive passage from one phase to another is made by a sort of automatic regulator, depending on the number of marks gained or lost by the prisoner through his good or bad behaviour, to which we know the moral or psychological value to be attached–a value purely negative.
This progressive, gradual, or Irish system has obtained a supremacy in Europe, so that even Belgium, the classic land of the cellular system, reconsidered the ideas which it had based on daily experience, and was the first continental country to introduce conditional sentences (in 1888), which are the fruit of short sentences and cellular punishments.
I do not deny that this progressive system is better than the others, though we must not forget that the almost miraculous effects of amendment and decrease of recidivism (which indeed are claimed for every new system, only to be disproved later on) were due in Ireland to the wholesale emigration of those conditionally released to North America–an emigration amounting to 46 per cent. of the prisoners released. Nor must we forget that this system, which requires a trained staff of officers, is less difficult to work in countries where, as in Ireland, there are only a few hundred prisoners; but it would be much more difficult in Italy or France, where the prisoners are numbered by tens of thousands. In these countries, accordingly, the system will not be practical unless the principle of classifying prisoners in biological and psychological categories is conjoined with it; for without this we shall not get rid of the impersonal system which is the vice of our present penal law, and under which, even in our prison administration, we treat the prisoner as a mere symbol, to which we can apply the three conventional rules of the cell, hard labour, and instruction.
But I am strongly opposed to, or accept simply as accessory (even for the seclusion of prisoners before trial, after the preliminary examination), cellular isolation by itself, which has reached the height of absurdity and inhumanity in cases of imprisonment for life.
As Mancini said in 1876, discussing the draft of the Italian penal code, “the punishment of hard labour for life, which is substituted in the draft for the capital sentence, differs substantially in its severity of privation and misery from all other modes of imprisonment. It must be undergone in one or two special prisons to be erected within the country. It would be the saddest and most terrible thing which the imagination of man could conceive. These tombs of the living, whom society has rejected for ever, unlike all other prisons, will condemn their inmates to continuous solitary immurement in cells, and to a life which may be worse than death itself. . . . This most wretched condition, which the free man cannot realise without horror, is to last ten years; and it is not to be in the power of man to bring it to an end sooner, if the prisoner, broken down by physical weakness, or threatened by loss of reason, cannot endure it any longer.”
After this description, I am not sorry that I denounced the cellular system as one of the madnesses of the nineteenth century.
This useless, stupid, inhuman, costly “tomb of the living” must be repudiated, even when reduced to its lowest terms by the new Italian code, wherein Parliament, accepting part of my amendment, fixes the term of absolute seclusion at seven years.
It will be seen by this description of cellular imprisonment that the classical criminal and prison experts have logically arrived at the conclusion that perpetual punishment should be abolished; and this renders recidivism possible even in murder. But it is clear that what we ought to abolish is not perpetual separation, but only the stupidly harsh form of isolation in cells–and this not only in life sentences, but in all sentences.
Cellular imprisonment is inhuman, because it blots out or weakens, in the cases of the least degenerate criminals, that social sense which was already feeble in them, and also because it inevitably leads to madness or consumption (by onanism, insufficient movement, air, &c.). Hence it drives the prison authorities, in order to avoid these disastrous consequences, to the injustice of building cells for murderers which are decidedly comfortable, and consequently a mockery of the honest wretchedness of the cottages and garrets of the poor. The treatment of mental diseases recognises a special form of insanity under the name of prison madness.
Cellular imprisonment, in temporary or indefinite sentences, can do nothing for the amendment of the guilty, especially because, when we do not amend the social environment, it is useless to lavish care on our prisoners if, as soon as they quit prison, they must return to the same conditions which led them into crime. No adequate social prevention can in any way be provided by the more or less arcadian devices of the prisoners’ aid societies. The chief mistake of the prison experts has been to concentrate their attention exclusively on the cell and in the cell, forgetting the external factors of crime; so that, by a familiar psychological process, the cell has become for prison experts what money is to the avaricious: it has ceased to be a means, and has become an end in itself.
Again, the cellular system is ineffectual because the very isolation which was its original object is incapable of realisation. Prisoners find a thousand means of carrying on communication with each other, during their walks, or by writing on the leaves of books lent to them to read, or by knocking on their walls according to a conventional alphabet, or by writing in the sand, or by using the drains as telephonic receivers, as was done in the cellular prisons of Mazas, Milan, &c. Plain proofs of this may be found in Lombroso’s “Les Palimpsestes des Prisons.” “The public, and even well-informed persons, honestly believe that the cellular prison is a dumb and paralytic thing, without tongue or hands, simply because the law has ordered silence and inactivity. But as no decree, however vigorous, can counteract the nature of things, so this organism speaks, moves, occasionally wounds or slays, in spite of all the decrees. Only, as always happens when a necessity of humanity is opposed by a law, it acts by less known, underground and hidden means.”
Moreover, the cellular system is unequal in its application, for difference of race has much to say to it, and in fact it is a clumsy machinery of the northern races, repugnant to those of the south, more dependent on the open air and light. Apart from that, isolation has very different effects amongst people of the same nation, according to the different vocations of the prisoners, especially of occasional offenders. In this connection the testimony of Faucher, Ferrus, and Tarde is thoroughly just, that in prison administration we ought to observe a distinction between dwellers in town and country.
Again, the cellular system is too costly to be adopted as the only form of imprisonment–which, however, is enacted in the Italian penal code, the French law of 1875, and elsewhere.
And it is just by reason of the enormous expenditure on vast prisons that the grievous and mischievous contrast arises between the comforts provided for murderers and men guilty of arson in their cells and the privations to which the honest poor are exposed in hospitals, poorhouses, town garrets, country hovels, and barracks. One of the most significant results which I noticed at the exhibition of various plans of cells in connection with the Prison Congress at Rome in 1885 was that it demonstrated to the general public how the cellular system treats prisoners (whether before trial or after sentence) better than the poor, who continue to be honest in spite of their wretchedness.
In Germany, as well as in France and Italy, legislation has ordained, by codes and special laws, the cellular system for all punishment by imprisonment; but fortunately the system has not yet been adopted, thanks to its enormous cost. So that we have the further absurdity of codes based on prison systems which have no actual existence. And since criminals have their part in the law, not as it is written but as it is carried out, the result is naturally disastrous.
Thus the cellular system bears hard upon the honest classes, both by its enormous cost, under the form of taxation, and by competition with free and honest labour. The competition is moral in the first place, for the criminal is always assured of daily work, lodgings, and food, whilst the honest workman is assured of neither. Even the economic competition, though not extensive when we take the totals of free workmen and prisoners, is still very keen in particular places and for particular industries, whilst prison labour never indemnifies the State for its expenditure; for clearly with cellular isolation it is impossible to organise important and profitable industry. It is the small industries, such as shoemaking and carpentry, which crush the same free industries all round the prison, for they cannot stand against the artificial competition created by the nominal wages of the prison hands. Though for moral and financial reasons the convicts must work, it is evident that on these grounds we cannot accept the cellular system as a pattern of prison organisation.
It is quite sufficient, in prisons for the segregation of criminals, to provide for isolation by night, which requires buildings far more simple and less costly than those of the cellular prisons.
Work in the open air is the only useful basis of organisation for convict prisons.
Air, light, movement, field labour, especially in southern counties and for the majority of prisoners, who are rural–these are the only physical and moral disinfectants possible for prisoners not entirely degenerate, or likely to prevent at least the absolute brutalisation of the incorrigible, by giving them healthy and more remunerative work.
The penal agricultural colony, in lands which need clearing, is the best for adults, passing from the least to the most healthy according to the categories of criminals–born, habitual, occasional–and according to the gravity of the crimes committed. To this may be added, for convicts less capable of restoration to social life, labour in mines, especially when the mines are State property. What I have said of malaria I say of fire-damp: it is much better that these should kill off criminals, than honest workmen.
The penal agricultural colony in lands already cultivated is best for children and young people.
This is the ideal and the typical form of segregation for criminals, against whom it would not be sufficient to exact strict reparation of damage, on the principles already set forth.
Wherever there is a crowding of humanity, there is human fermentation and putrefaction. Only labour in the open air will secure physical and moral health. And if agricultural work would be less fitted for criminals from the towns, there is no reason why an agricultural colony should not make itself as far as possible self-sufficing by means of workshops where prisoners could ply the trade to which they were accustomed when at liberty. For town convicts without a trade, such as vagabonds, beggars, and the like, on the ground of their muscular incapacity for hard and regular work, an agricultural colony is still the most fit, for it provides light and varied occupations, as the agricultural colonies of Holland, Belgium, and Austria bear witness.
The same evolution will take place in regard to the segregation of criminals as in regard to the seclusion of the insane; first, hospitals and prisons, with a terrible communion of corruption in both cases; then barrack life, in asylums or penitentiaries, vast and isolated; lastly, for the insane, a system of so-called village asylums, and even a free colony for harmless idiots who can be put to agricultural work and minor trades, as at Gheel in Belgium. Similarly for criminals, the sanitary “elbow room” of agricultural colonies will be substituted for the infectious barrack-life of the great prisons.
As for habitual criminals, their anthropological characteristics remind us that we must distinguish between the two crises of their criminal activity, and, as a consequence, between the methods of defence against them. That is to say, we must distinguish between the initial moment at which they commit their first crime and the subsequent period in which they become habitual offenders, recidivists, and even incorrigible.
Thus it is clear that at the initial moment of their criminal career they ought to be subjected to the measures which I am about to indicate for occasional criminals; whereas, when from occasional they have become, partly by their imprisonment, habitual offenders, they must be subjected to the measures already indicated for born criminals. The latter are incorrigible through congenital tendency to degenerate, and the former are incorrigible through acquired tendency; but they end in the same degree of anti-sociality and brutalisation. There is, however, this difference, that habitual offenders nearly always commit less serious crimes, such as theft, swindling, forgery, indecent assault, whilst the born criminals, though they may be petty thieves, or not very formidable swindlers, are more frequently murderers, footpads, guilty of arson, or the like. Thus the discipline of their segregation must vary accordingly.
For occasional criminals, social defence must have a character of prevention rather than of repression, so as to save them from being driven, by a mistaken prison organisation, to become recidivists, and therefore habitual and incorrigible criminals.
It is especially important in this category to discriminate between the young and the adults, for with the former, far more than with the latter, the preventive methods may have a sensible effect in diminishing crime. But we must take care, in place of the pedantic graduation of responsibility which satisfies the penal codes, to substitute a physiological and psychical treatment of children and young people, who are actual criminals or framing for crime.
Beginning with the physical and moral treatment of foundling children as one of the most effectual penal substitutes, and advancing to reformatory constraint and penal sentences upon the young, there is an entire system crying for radical reform, from which imprisonment for young persons should always be excluded. We must therefore abolish the so-called houses of correction; for, taking no account of the absurd and dangerous confusion created by the three classes of children committed for paternal correction, for begging and vagrancy, and for offences, no good can ever come of it, for the herding and crowding together are nowhere more productive of fermentation and putrefaction than amongst the young.
There is nothing for them but separate boarding-out with families of honest country folk, or else agricultural colonies with a discipline different from that of the colonies for adult criminals, but still based on the rule of isolation by night, work in the open air, and as little crowding as possible.
For adult occasional criminals it is unnecessary to insist any further on the absurdity and danger of short terms of imprisonment, with or without isolation in cells, which now constitute the almost exclusive mode of repression. A few days in prison, mostly in association with habitual criminals, cannot exercise any deterrent influence, especially in the grotesque minimum of one day, or three days, as provided by the Dutch, Italian, and other codes. On the contrary, they are attended by disastrous effects, by destroying the serious character of justice, relieving prisoners of all fear of punishment, and consequently driving them to relapse, under the influence of the disgrace already suffered, and of the corrupting and compromising association with habitual criminals in prison.
The results of these short terms, indeed, which impose about the same restriction of liberty as an attack of indigestion, or a heavy fall of snow, are so manifest that the objection to them is now almost unanimous, though they still form the basis of the most recent penal codes.
As to the substitution of other repressive methods in the many cases of sentence for light offences, theorists and legislators have proposed domiciliary arrest, sureties, judicial warnings, compulsory work without imprisonment, conditional suspension of a sentence or a punishment, qualified banishment. For the moment there is a marked preference for conditional sentences.
In my opinion, however, none of these substitutes or short terms of imprisonment can be applied as effectively or as generally as is necessary for the large class of occasional offenders.
Domiciliary arrests, indeed, which the Italian penal code applies only to women and minors for a first contravention of the law, with detention in the house, cannot be made effective. They would be useless for those already obliged to remain at home by their daily occupations, and for the rich, who could have any form of distraction in their own houses; and they would be injurious to those who have to earn a living for themselves and their families in workrooms, shops, offices, &c. Moreover, this domiciliary detention would be very difficult in the great towns, where it would probably require a sentinel for every condemned person.
Bail for good behaviour is too unequal in the case of the poor and the rich, and therefore too rarely applicable to be any more than an exceptional and accessory measure, taken in conjunction with the payment of damages; and this even when it is given by sureties.
Judicial warning, with or without security, which the new Italian penal code has sought to revive, in spite of many years’ experience under the older codes, cannot be seriously treated. Either the prisoner is an occasional offender, or an offender through passion, having a sense of honour, in which case public opinion is itself a sufficient lesson for him, without the need of a little moral lecture from the judge; or else he has no such moral sensibility, and then the warning is a mere useless ceremony, without effect either on the criminal or on the public. So true is this that judicial warning (a different thing from police warning, which is another so-called preventive measure, both ineffectual and injurious) is rarely applied by magistrates.
Compulsory work without imprisonment may be admitted, not as a main punishment, but as a mode of enforcing strict reparation of damage, which I still believe to be the only suitable measure for occasional offenders, when the offence is slight.
The same must be said for qualified banishment (temporary removal from the place where the crime was committed), which may be added as a preventive measure, and as a satisfaction for the injured party, in the same cases where the payment of damages is the principal retribution.
There remains the conditional sentence. A judge may decide, in the case of first offenders who appear to him to call for such treatment, that the sentence or the execution of the sentence, shall be suspended for a given period, after which, if the offender has been of good behaviour, and has not committed another offence, the sentence is effaced and the condemnation is regarded as non-existent; whilst in the other case the sentence takes effect, and the punishment is added to that of the new crime.
This conditional suspension, however, assumes two very different forms.
At Boston, in the State of Massachusetts, from the year 1870 in the case of minors, and from 1878 in the case of adults, judgment is suspended without regard even to the gravity of the crime or to the antecedents of the criminal; and this custom has applied to the entire State from the year 1880. All that the judge does is to fix the period of probation. There is a probation officer whose business it is to keep his eye on the persons affected, and who has extensive powers, including that of bringing them up for sentence even for disorderly conduct, without waiting for an actual relapse. This system has also been introduced into New Zealand and Australia (1886).
In England, after the advocacy of the probation system by the Howard Association, an Act was passed in 1887 “to permit the conditional Release of first Offenders in certain cases.” This law combines probation with sureties for good conduct. Judgment is given, but sentence is not pronounced. The suspension is not granted to any one who has previously committed an offence, or whose first offence would be liable to a punishment exceeding two years’ imprisonment. There is no probation officer, for supervision is replaced by personal or other sureties for good behaviour.
On the continent of Europe another form has been adopted. There is no supervision by a special officer, and no surety for good behaviour; judgment is delivered and sentence pronounced; and the suspension is not forfeited by disorderly conduct, but only by an actual relapse.
This system, so far as the purpose was not effected by various conditions as to the duration of punishment, which left room for conditional sentences, as to the interval for taking cognisance of relapse, and other details, was proposed in France (1884) by Senator Berenger; but Belgium was the first country to adopt it in the law of 1888 “on conditional release and conditional sentences;” and France followed in 1891, with the law “on the modification and increase of punishments.”
Before that time, at the Prison Congresses of London (1872) and Rome (1885), there had been some discussion, without resolutions, on the advisability of substituting for punishment with hard labour either simple detention without labour or compulsory labour without imprisonment, or removal from the place where the offence was committed, or judicial admonition.
But the most noteworthy advocacy of conditional sentences, after the action taken by the Howard Association in 1881, came from the International Union of Penal Legislation, which at its Conference at Berne in 1889 adopted a resolution in its favour, whilst insisting, at the suggestion of M. Garofalo, “on the necessity of deciding its limitation according to local conditions, and to the public opinion and moral characteristics of various nations.”
The Prison Congress of St. Petersburg discussed the substitution of judicial admonition or conditional sentences for short terms of imprisonment; but no resolution could be arrived at on this occasion, and the matter was postponed to the next international Prison Congress (Paris, 1895).
In Austria and Germany, again, several Bills have been introduced, dealing with conditional sentences.
There are statistics for Belgium on the operation of this system. The law of 1888 requires the keeper of the seals to report annually to Parliament; and that authority drew up two reports, dated May 14, 1890, and July 7, 1891.
From the day when the law came into operation up to December 31, 1889, out of 61,787 sentences in the Correctional Tribunals, 8,696 were conditional; and there were 192 relapses. Out of 222,492 sentences in the Police Courts, 4,499 were conditional, and there were 45 relapses.
These 13,195 conditional sentences included 8,485 for crimes and offences under the penal code; 2,286 for breaches of police regulations; 447 for breaches of communal and provincial regulations; and 1,977 for contraventions of special laws.
The crimes and offences for which these sentences have been most frequently pronounced are as follows:–
Offences below 100 were: Abusive language, 99; Indecent assaults, 59; Threats, 58; Forgery, 49; Adultery, 48; Adulteration of food, 44; Unlawful wounding, 45; Unlawful possession, 31; Unlawful carrying and sale of arms, 30; Bankruptcy, 26; Accidental homicide, 20.
In the year 1890, out of 41,330 sentences in the Correctional Tribunals, whereof 36,660 were not over six months’ imprisonment, 7,932 were conditional, and there were 223 relapses. Out of 121,461 in the Police Courts, 6,377 were conditional, and there were 49 relapses.
The proportion for various offences was approximately the same as in the previous year.
These figures, it is true, do not tell us much about the effects of conditional sentences in Belgium, as we might expect from the brevity of the experiment; so that the question still remains in the theoretical phase.
The statistics of the Massachusetts probation system are not much more instructive.
According to the decennial report (1879-88) of Mr. Savage, probation officer at Boston, imprisonment was remitted in the county of Suffolk (including Boston) to 322 persons in 1879 and to 880 in 1888; whilst the number officially recorded for the following year was 994. In the course of ten years the probation officer inquired into the cases of 27,052 persons liable to supervision. Of these, 7,251 were put on probation, and 580 were deprived of the benefit of the law.
The grounds on which the probation system was applied in Massachusetts were strikingly different from the circumstances under which conditional sentences were recorded in Belgium. Thus in Boston there were put on probation, between 1879 and 1888, 3,161 persons charged with drunkenness for the first time, 222 charged with habitual drunkenness, 211 with drunkenness for the third time, 958 with theft, 764 with solicitation, 470 with inflicting bodily harm, 274 with disorderly conduct and idleness, 240 with violation of domicile, especially with intrusion in business premises.
Thus, apart from the difference of penal legislation and social life in the two countries, the Boston system is applied mainly to drunkards, who are not true criminals by the mere fact of intoxication.
As for the statistics of ascertained relapse, which in Boston reached 64 out of 1,125 (6 per cent.) in 1889, I think they should be received with caution. In the case of every new penal or penitentiary system or measure, we never fail to receive more or less wonderful figures on the results obtained; but the common fate of all these splendid results has always been that they dwindle down, even if they do not turn into a negative quantity, so as to indicate the necessity of other more practical and serviceable measures. The reason is, and will continue to be the same, namely, that legislators, judges, and prison warders have no adequate knowledge of criminals, and their activity is anything but harmonious. This accounts for the superficial character, if nothing more, of the measures which are taken, and which apply far more to the crime than to the criminal, without so much as touching the true and deep-seated roots of crime. Hence also the inevitable disillusion, almost before the new device is a month old.
I by no means admit the two principal objections of MM. Kirchenheim and Wach, that the conditional sentence is repugnant to the principle of absolute justice, according to which every offence should be visited by a corresponding punishment, and that short terms of imprisonment, if they have not always produced a good result, ought not to be abolished, but only applied in a more suitable and efficacious manner.
The first objection will not weigh much with those who are guided by the principles and method of the positive school. As M. Gautier says, it is absolutely useless to dispute about consequences when we start from premisses so opposed to each other as retributive justice, according to which every fault demands a proportional punishment–“fiat justitia pereat mundus”–and social defence, according to which a justice without social advantage is an unjust justice, afflicted with metaphysical degeneracy.
The second objection appears to me to have no better foundation, for the disadvantages of punishments by short terms of imprisonment are organic and inevitable defects. There is no chance of their practical amelioration, for they have all been tried, from the system of association to that of absolute isolation, from the most inflexible vigour to the mildest treatment. Amelioration of short-term punishments can only have an indirect influence by way of palliation; but it is the actual imprisonment for a short term which is trifling and unavailing.
At the same time, and not to mention other objections on points of detail, specially applicable to the form given to conditional sentences on the continent of Europe, as compared with the American system, (which is certainly better, since it does not leave the offender to himself, and is not restricted to the simple legal relapse), I am not enthusiastically in favour of the conditional sentence. And my lack of enthusiasm, in spite of the first impression, which was decidedly favourable, is based on different grounds from those hitherto stated by the opponents of this reform.
In the earliest edition of this work I maintained that repression ought to be mild in form for occasional criminals, and progressively severe for recidivists and habitual evildoers, until it reached perpetual segregation. The Italian proverb, that “the first fault is pardoned and the second whipped,” is an unconscious confirmation of the popular opinion. And from this point of view the conditional sentence, if combined as in the French law with progressive severity of repression for recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it has hitherto been propounded and carried out, has two characteristic defects, in common with the actual penal system, of which its advocates, for the most part balancing between the classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its attention on crime, and the positive school studies the criminal, especially in regard to his biological and psychological character, the advocates of the conditional sentence (and of the laws which have so far brought it into operation) oscillate between the two standpoints, considering the criminal, no doubt, rather than the crime, but only the average and abstract criminal, not the living and palpitating criminal, as he is to be found in his several categories. In proof of this it is enough to observe that the ninth article of the Belgian law admits the conditional sentence, so far as punishment is concerned, when this punishment does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE CUMULATION OF TWO OR MORE! In other words, the conditional sentence is allowed in the case of a criminal who has committed several offences–which substantially (except in the few cases of connected offences due to the same action, or arising out of the same occasion) is a mere case of relapse, and therefore proves in the majority of cases that the law is not dealing with true occasional criminals; for these, as a rule, like criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in Europe (a slight infraction and a nonrelapsed criminal) do not, therefore, afford a complete guarantee of the utility of its application.
It is true that this system tends to fix the attention of the judge on the personal conditions of the prisoner, requiring him to decide if the conditional sentence is suitable to the particular occasion, having regard to the special circumstances of the action and the individual, apart from the legal limitations of the offence and of the punishment.
But we know that the crowding of the prisons with persons condemned to short terms of imprisonment is attended by a grievous crowding in the courts of prisoners accused of slight offences and contraventions. Thus it is inevitable that the judges, even apart from their ignorance of the biological and psychological characters of the offenders, being compelled to decide ten or twenty cases every day, cannot fix their attention on the procession of figures which files past the magic lantern of the courts, but simply leave them with a ticket bearing the number of the article which applies, not to THEM, but to their particular infraction of the law. Thus the judges will come to pronouncing the conditional sentence almost mechanically, just as they have come to give the benefit of attenuating circumstances by force of habit This device also was introduced in France in 1832, in order to “individualise punishment”–that is to say, to compel the judge to apply his sentence rather to the criminal than to the crime.
So long as penal procedure is not radically reformed, as we have proposed, in such a manner that the inquiry, the discussion, the decision upon the evidence, which are the only proper elements of penal justice, aim at and lead up to the determination of a prisoner’s biological and psychological type, it will be humanly impossible for the practical application of these judicial measures to overcome the mechanical impersonality of justice, which applies rather to the crime than to the criminal.
Hence the conditional sentence, though it was evolved by the abuse and disastrous effects of short terms of imprisonment, and in spite of its generating principle that “the first fault is pardoned and the second whipped,” has to-day only the character of an eclectic graft on the old classic stock of penal law and procedure. As such, notwithstanding its attractive features (for it indicates a step in advance towards the positive system of social defence, which desires to see the application of collective defence to the individual’s power of offence), it seems to me to be destined, not long after its earliest application, to deceive the anticipations of happy and beneficent results, such as its advocates entertain.
Moreover, the conditional sentence, precisely because it is a graft on the old classic stock of penal justice, has another very serious defect, inasmuch as it overlooks the victims of the offence.
Its advocates, in fact, continue to maintain that reparation of damage is a private concern, for which they benevolently recommend a strict remedy, but which they nevertheless, in practice, entirely overlook.
The offender who is conditionally sentenced is, therefore, to secure a suspension of punishment–which, indeed, it is as well to remember, he also secures, often enough, by a legal limitation, or, as in Italy, by the remission of punishments under three months, accorded whenever (as is generally the case) there is a petition for pardon. But is there any one who gives a thought to the victims?
From this point of view it may even be said that the conditional sentence makes things worse than before; for the victims are not to have so much as the satisfaction of seeing punishment inflicted on those who have injured them, in cases of assault, theft, swindling, and the like. And it is useless to make the platonic remark, as M. Fayer has done, that punishment is punishment even when conditional, and involves the censure of the public authority, and holds in reserve a punishment for relapse, and hangs over the head of the offender until his term of probation has expired.
All this is pretty enough–except the relapse, which implies the poor consolation of a repetition of the offence, which would be no great satisfaction for the victims of the first. But it is all hypothetical and theoretical. The essential thing, so far as the victims are concerned, is that the offender goes unpunished.
It is true that occasional offenders deserve consideration, from the point of view of prevention in particular; but honest folk who are injured by them deserve it still more.
I do not therefore agree with Garofalo, who proposed at Brussels that the conditional sentence should be subject to the consent of the injured party; but I think that it ought not to be permitted until there has been an indemnification for the victims of the offence, or at least a guarantee, either by the offender, or directly by the State.
In short, for occasional criminals who commit slight offences, in circumstances which show that they are not of a dangerous type, I say, as I have said already, that reparation of the damage
inflicted would suffice as a defensive measure, without a conditional sentence of imprisonment
As to the occasional criminals who commit serious offences, for which reparation alone would not be sufficient, temporary removal from the scene of the crime should be added in the less serious cases, whilst in the cases of greater gravity, owing to material and personal considerations, there should be indefinite segregation in an agricultural colony, with lighter work and milder discipline than those prescribed in colonies for born criminals and recidivists.
The last category is that of criminals through an impulse of passion, not anti-social but susceptible of excuse, such as love, honour, and the like.
For these individuals all punishment is clearly useless, at any rate as a psychological counteraction of crime, for the very conditions of the psychological convulsion which caused them to
offend precludes any deterrent influence in a legal menace.
I therefore believe that in typical cases of criminals of passion, where there is no clear demand for mental treatment in a criminal lunatic asylum, imprisonment is of no use whatever. Strict reparation of damage will suffice to punish them, whilst they are punished already by genuine and sincere remorse immediately after the criminal explosion of their legitimate passion. Temporary removal from the scene of their crime and from the residence of the victim’s family might be superadded.
Nevertheless it must not be forgotten that I say this in connection with criminals in whom the passionate impulse is really exceptional, and who present the physiological and psychical features of the genuine criminal of passion which I enumerated in the first chapter.
I come to a different conclusion in the case of criminals who have merely been provoked, who do not completely present these features, who are actuated by a combination of social and excusable passion with an anti-social passion, such as hate, vengeance, anger, ambition, &c. Of such a kind are murderers carried away by anger just in itself, by blood-feuds, or desire to avenge the honour of their family, by vindication of personal honour, by grave suspicion of adultery, &c.; persons guilty of malicious wounding, disfigurement through erotic motives, and the like. These may be classed as occasional criminals, and treated accordingly.
Such, then, in general outline, is the positive system of social, preventive, and repressive defence against crimes and criminals, in accordance with the inferences from a scientific study of crime as a natural and social phenomenon.
It is a defensive system which, in the nature of things, must of necessity be substituted for the criminal and penitentiary systems of the classical school, so soon as the daily experience of every nation shall have established the conviction, which at this moment is more or less profound, but merely of a general character, that these systems are henceforth incompatible with the needs of society, not only by their crude pedantry, but also because their consequences are becoming daily more disastrous.