Criminal Sociology Part 18

But the most noteworthy advocacy of conditional sentences, after the action taken by the Howard a.s.sociation 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 subst.i.tution 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 p.r.o.nounced are as follows:-

Correctional. Police.

Malicious Wounding ... ... ... ... ... 3,339 ... 491 Thefts, &c ... ... ... ... ... ... 1,803 ... 206 Resistance to and attacks on Authorities 961 ... 67 Destruction of Inclosures and Property 211 ... 56 Swindling and Breach of Trust ... ... 125 ... 5 Slander and Defamation ... ... ... ... 113 ... 79 Immorality ... ... ... ... ... ... ... 112 ... 10 Offences below 100 were: Abusive language, 99; Indecent a.s.saults, 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 Ma.s.sachusetts 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 Ma.s.sachusetts were strikingly different from the circ.u.mstances 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 quant.i.ty, 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 princ.i.p.al 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 just.i.tia 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 a.s.sociation 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. .h.i.therto 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 cla.s.sical and positive school, cannot get rid.

In the first place, whilst the cla.s.sical 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 c.u.mULATION 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 pa.s.sion, 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 circ.u.mstances 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 p.r.o.nouncing the conditional sentence almost mechanically, just as they have come to give the benefit of attenuating circ.u.mstances 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 cla.s.sic 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 antic.i.p.ations of happy and beneficent results, such as its advocates entertain.

Moreover, the conditional sentence, precisely because it is a graft on the old cla.s.sic 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 pet.i.tion 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 a.s.sault, 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 repet.i.tion 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 circ.u.mstances 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 pa.s.sion, 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 pa.s.sion, 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 pa.s.sion. 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 pa.s.sionate impulse is really exceptional, and who present the physiological and psychical features of the genuine criminal of pa.s.sion 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 pa.s.sion with an anti-social pa.s.sion, 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 cla.s.sed 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 subst.i.tuted for the criminal and penitentiary systems of the cla.s.sical 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.