Criminal Sociology Part 13

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.

IV.

It needs no further demonstration that the modern organisation of punishment, based partly on the a.s.sumption 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 cla.s.sical school, frankly confessed that "the prison systems have made s.h.i.+pwreck." 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 cla.s.sical school of criminal law, and by the actual regulations of the cla.s.sical 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 a.s.sociation 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 a.s.size 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 cla.s.sical 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 a.s.size 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.[19]

[19] As regards recidivism and the enormous numbers tried, England is in as bad a position as Italy and France. See my articles in Nineteenth Century, 1892, and Fortnightly Review, 1894.-ED.

It is impossible, then, to deny the urgent necessity of subst.i.tuting 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.

I. MURDERERS (moral insensibility and instinctive cruelty) who commit-

Murder for greed, or other selfish gratification Criminal Lunatic Asylums: or Murder unprovoked by the victim the death penalty.

Murder with attendant cruelty II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency of the sense of pity, with prejudices on the subject of honour, on the duty of revenge, &c.). Adults who commit-

Violent a.s.sault suddenly provoked Removal of the offender from the by a cruel injury neighbourhood of the victim or Justifiable homicide in self-defence his family.

Transportation to an island, colony Homicide to avenge honour or village-at liberty, under (isolated or endemic) supervision (for an indefinite period, with from 5 to 10 years supervision).

Bodily injury during a quarrel; Damages and fine: heavy for such slight and transitory malice; as can pay. Alternative blows; threats; slander; verbal penalty:-deduction from wages, insults or forced labour. Imprisonment in case of refusal.

Malicious injury or disfigurement; Criminal lunatic asylum (for mutilation; rape or outrage with hysterical or epileptic), or violence; restraint on personal Transportation for an indefinite liberty period, with supervision from 5 to 10 years.

Young persons who commit- Criminal lunatic asylums (for those with congenital Crimes of violence without excuse, tendencies).

or rape Penal colony in case of relapse.

Transportation without constraint.

III. DISHONEST CRIMINALS. Adults who commit- Habitual theft, swindling, incendiarism, Lunatic asylums (if insane or forgery, extortion epileptic). Transportation. Labour-gangs (unfixed periods); Occasional theft; swindling; or suspension of right to exercise forgery; extortion; incendiarism a profession, until complete reparation of damage.

Peculation; embezzlement; sale of Loss of office. Suspension of offices; abuse of authority civil rights. Fine. Rest.i.tution.

Incendiarism; vindictive destruction Reparation of damage (with optional of property (without personal imprisonment). Criminal injury) lunatic asylums (for the insane). Transportation (for recidivists).

Bankruptcy, when due to malpractice Rest.i.tution. Prohibition to trade or to discharge public functions.

Uttering false coin; forgery of stock Imprisonment (unfixed periods) and certificates; personation, and fine, in addition to loss of false witness, &c. office, and rest.i.tution.

Bigamy, palming or concealment of Banishment for unfixed periods. birth

Young persons who commit- Theft, swindling, &c. An agricultural colony (for unfixed periods).

IV. Persons guilty of-

Outbreaks, resistance or disobedience Imprisonment(for unfixed periods) to authority In other words, the system of repression proposed by M. Garofalo amounts to this:-

Absolute elimination of the criminal Penalty of death Criminal lunatic asylum.

Transportation with liberty.

Perpetual banishment.

Relative elimination Banishment for various periods.

Agricultural colonies.

Interdiction from a particular neighbourhood.

By payment of money.

Reparation of damages Deduction from wages.

Fine (going to the State) Forced labour, without Indemnification of the victims imprisonment.

Imprisonment for fixed periods for special offences (forgery and outbreaks); or as alternative to indemnification or forced labour.

Interdiction of certain professions and public functions.

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 cla.s.ses 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:-

Punishment by fines.

In proportion to the property of the offender-not alternative with For offences (with alternative imprisonment imprisonment).

Capable of being worked out by For contraventions of the law forced labour without imprisonment (without imprisonment).

Conditional sentences.

For first offenders condemned to imprisonment, with or without For offences punishable by sureties for three years imprisonment.

Imprisonment (for an indeterminate period, a maximum and minimum being enacted).

Separate confinement-six weeks to two years.

House of detention (separate for 2 to 15 years (with police one year, then gradual relaxation supervision and a.s.sistance of discharged prisoners)-or for life.

Indemnifications (always as a civil liability) added to other penalties.

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.