THE TREATMENT OF THE CRIMINAL

The Criminal by Havelock Ellis is part of the HackerNoon Books Series. You can jump to any chapter in this book here. THE TREATMENT OF THE CRIMINAL

VI. THE TREATMENT OF THE CRIMINAL

If, as now scarcely admits of question, every truly criminal act proceeds from a person who is, temporarily or permanently, in a more or less abnormal condition, the notion of “punishment” loses much of its foundation. We cannot punish a monstrosity for acting according to its monstrous nature. Moreover, who among us is perfectly normal, and what tribunal is entitled to punish? The verdict of science is one with that of Christianity—“Judge not.”

Some such argument as this has weighed with those thinkers and investigators who have of late shown a disinclination to talk of punishment, and have instead spoken of the “social reaction against crime.” The old conception of punishment was founded on the assumption of the normality of the criminal; he was a normal person who had chosen to act as though he were not a normal person—a vine, as it were, that had chosen to bring forth thorns—and it was the business of the penologist to apportion the exact amount of retribution due to this extraordinary offence, with little or no regard to the varying nature of the offender; he was regarded as a constant factor. Lord Chief Justice Coleridge, not many years ago, “when addressing,” says the Rev. J. W. Horsley, “in our hearing, an assemblage of those who had all belonged to the criminal class, expatiated, somewhat to their astonishment and much to their gratification, on the iniquity of giving a severe punishment for a theft that was petty, even though it had been preceded by many thefts and convictions.” Obviously the punishment was directed at the offence; it was not necessary to consider the offender at all. This conception, formulated by theorists who delighted in abstract notions, has been shown to lead directly into devious paths of metaphysics and ethics; it has, consequently, been fertile of much vain disquisition. On the whole, the results of this have not contributed to confirm the credit of the notion, and it has seemed better—at once sounder theoretically and more convenient practically—to dispense with this antiquated conception of punishment. Whenever one person trespasses on the rights of another person, or of the community to which he belongs, there is an inevitable social reaction against the person who has committed the anti-social deed. Society says to the individual who has violated its social feelings—Here, my fine fellow, we are not going to stand this conduct of yours; we must have an end of this: and it proceeds to act in accordance with the varying measure of its wisdom. This is the basis of all legal action against the criminal; in its crudest form it is Lynch law; in its highly developed form it shows itself in the elaborate training bestowed on the criminal at Elmira. Such social action is a solid and permanent fact, independent of all metaphysical theories; and it is this we are concerned with when we approach the question of the treatment of the criminal.

At a very early period in the development of every barbarous race there arise two institutions for dealing with the criminal—the prison and another, still more decisive, appearing in various forms, the cross, the stake, the gallows, the axe.

I do not propose to give more than a few words to the question of capital punishment, because it does not seem to be any longer a question of much magnitude or importance. A century, even three-quarters of a century, ago it was a different matter. In England especially capital punishment seems to have flourished luxuriantly. A writer in Elizabeth’s reign says that in Henry VIII.’s time seventy-two thousand thieves and vagabonds were hanged. The statement is set down on hearsay evidence only, but is sufficient to show that the number must have been very large. About a century ago more criminals, it is said, were put to death in England than in any other part of Europe; many persons still living remember the days of wholesale hanging, and even the execution of a child of twelve for rioting. It is less than half a century since a child of nine was condemned to death for stealing paint, value twopence-halfpenny, and since men were hanged for stealing sheep and postoffice letters.

There can be little doubt that capital punishment is dying out. In Switzerland, in England, in Italy, for example, the tendency is very clearly marked. Whether its complete extinction is altogether a matter for rejoicing is a question concerning which there is not complete unanimity among those whose opinions carry most weight. An impressive body of opinion is in favour of putting instinctive criminals to death, not out of revenge, but in the spirit in which Galen and Seneca advocated the destruction of incorrigible offenders against social life, regarding them as diseased members to be removed for the advantage of the whole social body. Garofalo, the distinguished Neapolitan lawyer, is perhaps the chief advocate of capital punishment among those who are working for legal reform. He points out that the death penalty is the only one the criminal really dreads, and tells of offenders who committed their crimes under the impression that capital punishment had been abolished, and that they were to be provided with food and shelter for the rest of their lives. On the other hand, it has also been shown that the éclat and public interest involved in a trial for life or death serves as an incentive to the morbid vanity of criminals. Such a penalty as burning “for example of others, as hath been accustomed,” according to the phrasing of Henry VIII.’s statute, has been an example often enough in another sense than the statute intended.

On the whole, we may perhaps be well satisfied that capital punishment—“the shameful practice,” as it has been epigrammatically styled, “of hiring for a guinea an assassin to accomplish a sentence which the judge would not have the courage to carry out himself”—is threatened with extinction in civilised countries. It has the disadvantage of being irrevocable. There would be little chance of mistake if it were only applied to recidivists; but these are a class to whom it is rarely applied. It is certain that mistakes have occurred when in the opinion of the judge the evidence of guilt was absolutely convincing. It is true that the chief cause of this extinction in democratic countries is not the benefit of the criminal, or even the welfare of society; it is a tender regard for the sentiments of the general public. “To punish murder by lifelong imprisonment,” as Sir Robert Rawlinson observed, “is a far severer fate than sudden death, but it is not so revolting.” We have to see to it that our substitutes for the death penalty are of a humane and rational character, and that they afford an equal protection to society. It should never be possible to address to society the words which the daring Duc de Montausier addressed to Louis XIV. concerning a criminal who was finally executed after committing twenty murders: “This man has only committed one murder, the first, and it is you who, by letting him live, have committed the other nineteen.” But, as Benedikt well observes, to kill the criminal is never satisfactory, because we do not kill his accomplices, bad social conditions and defective institutions; we leave untouched the false social sentiments that urged the unmarried girl to kill her own child, or the rigid marriage system that made it easier for the man to kill his wife than to leave her or to allow of her leaving him. Moreover, it must be said that murderers, whom alone it is considered justifiable to eliminate by death, are not usually the most degraded of criminals or the most dangerous to society. In Russia, where capital punishment for common-law offences was abolished more than a century ago, murderers are condemned to hard labour for a period of years, after which they are settled in Siberia. “Eastern Siberia is full of liberated assassins,” remarks Prince Krapotkine, “and, nevertheless, there is hardly another country where you could travel and stay with greater security; while the unceasing robberies and murders of which Siberia complains now, take place precisely in Tomsk and throughout Western Siberia, whereto no murderers and only minor offenders are exiled. In the earlier part of this century it was not uncommon to find at an official’s house that the coachman was a liberated murderer, or that the nurse who bestowed such motherly care upon the children bore imperfectly obliterated marks of the branding-iron.” Mr. Davitt, speaking from an extensive acquaintance with criminals, says:—“The really hardened, irreclaimable criminal will never commit a murder.... The most heinous of all offences—murder deliberately intended and planned before commission—is, ordinarily, the offspring of the passions of revenge and jealousy, or the outcome of social or political wrongs; and is more frequently the result of some derangement of the nobler instincts of human nature than traceable to its more debased orders or appetites.”Again, Miss Carpenter, in her Female Life in Prison, wrote:—“Some women are less easy to tame than the creatures of the jungle.... And yet these women are not always in for the worst crimes: there are few, if any, murderers amongst them; they have been chiefly convicted of theft after theft, accompanied by violence.” These observations are entirely in accord with the results of criminal anthropology; the murderer belongs very frequently to the class of criminals by passion, the least anti-social of all, and is at other times frequently the subject of some morbid impulse, epileptic or insane.

Perhaps the most powerful reason in favour of the probable disappearance of capital punishment is the humanising influence that would be exerted on the community generally. The unreasoning outbursts of ferocity in which, especially among young and emotional democracies, some morbid and distracted creature who fires at a political personage is hurried with glee to the scaffold, or some half-witted human thing who commits a rape is perhaps actually torn to pieces, are not wholesome manifestations of the social spirit. They are far less excusable than the deeds by which they are aroused, for the reason that they arise in more normally constituted persons. So long as capital punishment is legitimate there is, however, at least the appearance of an excuse for the development of these brutalising outbursts. All that is finest in civilisation is bound up with a self-restraint and humanity, as well as a more intelligent insight, which, while admitting a more chastened social reaction, makes ferocity impossible.

Let us turn to the prison. During the last century a vast amount of care and enthusiasm, philanthropic and administrative, have been expended on the elaboration and development of prisons. It is needless to sketch the history of this development, which seems now to have come to a standstill; it has often been done, and is easily accessible. It is however very interesting and instructive to take note of the deliberate opinions expressed during the last few years, from various points of view, by those who have had the opportunity of studying most intimately the modern developed prison.

A curious fate has befallen this ancient institution. In its more primitive form it now arouses universal disgust and horror. The Russian prisons of Siberia are, for instance, a by-word of reproach. The physical and mental torture which they inflict, wholesale and indiscriminately, on men and women, on political suspects as well as on the lowest criminals, have been described over and over again, from within and from[Pg 240] without, during the last fifty years, in Dostoieffsky’s Recollections of the Dead-House, by Maximoff, and by Krapotkine, and still, when Mr. Kennan repeats the old story, a wave of indignation passes across the civilised world. Elsewhere on the fringe of European civilisation the primitive prison is still scarcely changed. The Spanish prisons are often filthy and overcrowded, and the inmates are maintained in laziness. In the Spanish prison of Ceuta, in Morocco, there are 3000 convicts, mostly for life, and crowded together, so that 112 sleep in one room.[92] The[Pg 241] native prisons of Morocco are the abodes of oppression, starvation, and filth, where the innocent and guilty are thrown in together, without any kind of work, and allowed to die slowly. “The horrors of these places are indescribable. Often they are underground, damp, and pestilential; always filthy. They are frequently very crowded, and a dozen or more poor wretches may be fastened in one chain by their necks, with heavy irons on their wrists and ankles, unable to stir a foot away from one another for any purpose all night, and often all day.”[93] “On the highest authority,” says Mr. Cook, “I am able to say that the prison population of the city of Morocco equals the free population.” In the interior, where there is no dread of European influence, things are naturally much worse. In Egypt the prisons are filthy and[Pg 242] filled with untried prisoners. In Greece the prisoners are, “if possible, dirtier than those of Egypt, no work, no books, and but little food. Some of the rooms containing ten prisoners were less than twelve feet square.” Many of the prisons of South Africa are in a wretched condition, and some of those in the United States are little better.

A century ago most of the prisons of England could fairly have been included in any such enumeration as that I have just attempted. “They are ironed,” wrote Howard of the English convicts of 1773, “thrust into close, offensive dungeons, and there chained down, some of them without straw or other bedding. They continue in winter sixteen or seventeen hours out of the twenty-four in utter inactivity, and immersed in the noxious effluvia of their own bodies. Their diet is at the same time low and scanty; they are generally without firing; and the powers of life soon become incapable of resisting so many causes of sickness and despair.” There was not, as a recent writer remarks, so much consideration for prisoners in Britain as there had been in the reign of the Emperor Constantine, for the Romans of the fourth century did not permit the imprisonment of men in the same room with women. Howard found a girl locked up all day with two soldiers in the Bridewell at St. Albans, and in many of the gaols there was insufficient provision for the separation of the sexes.

We have changed all that. The best prisons of England, France, the United States, Belgium, Italy, and some other countries, are models of ingenuity, cleanliness, and routine. It cannot be said, indeed, that we have succeeded in hindering communication[Pg 243] between prisoners, or in preventing an illicit traffic in tobacco, etc., or even the practice of unnatural intercourse; and we do not trouble ourselves too much to reform the prisoner. Yet even these laxities of discipline have added materially to the prisoner’s comfort; and if we have not reformed the prisoner we have at least reformed the prison, an easier task, and one which shows more tangible results. “The prisoner of the present day is well cared for,” remarks Dr. Gover, the medical inspector, in a recent Report of the Directors of Convict Prisons; “he is supplied with all the necessaries, and not a few of the comforts of life; and his existence is, to say the least, rendered very endurable. The labour exacted from him is not irksome in its character, and he is not subjected to any depressing punishment unless it be for idleness or for serious misconduct.” But the work is not of an exhausting character, so that there is no very strong motive to laziness. “Hard labour,” Mr. Horsley remarks, “is such that no prisoner could get a living outside if he did not work harder.” It is not surprising that under these circumstances the prisoner flourishes. “In our prisons now there is,” says Dr. Richardson, “a lower mortality and probably a lesser sickness than in the most luxuriously appointed and comfortable houses in the commonwealth.” And what, he asks, is more natural when we find “epidemic poisons shut out of our prisons; famine shut out; luxury shut out; drink shut out; exposure to cold and wet shut out; the acute and most destructive kinds of mental worry shut out; the hungry strain for to-morrow’s bed and board shut out; the baneful association with criminal life at large shut out!”

[Pg 244]And yet we are dissatisfied! This comfortable, easy-going routine of the modern prison is viewed with scarcely more approval by the thoughtful investigator of to-day than the horrors of the primitive prison. It is deeply interesting and suggestive to take note of the opinions expressed during recent years by those most intimately acquainted with the modern prison. “Why are our prisons failures?” asks Mr. Horsley, who is as impressed as much as any one by the material progress of prisons. “Men are asking, and will more loudly ask, ‘Why are our prisons such utter failures?’ In the face of the phenomena of recidivism, and men and women with hundreds of convictions, it is absurd to imagine that they are as deterrent as they should be.” The prisoner is, he points out, but temporarily suspended from habits of crime by circumstances not under his own control: “He may even boast of his intentions, but out he must go, with as much safety to the State as if all mad dogs were muzzled for twenty-four hours and then all unmuzzled, because it had been found that in that period a certain proportion ceased to be dangerous; or as if all small-pox patients were discharged from hospital so many weeks after reception, whether cured or not.”[94] Another prison chaplain (Rev. C. Goldney), speaking from an experience of twelve years, writes still more recently:—“I say, unhesitatingly, that if a society for the manufacture of criminals were set on foot, that society could in no better way further its aims than[Pg 245] by pressing for the imprisonment of every little boy and girl who could, on any decent pretext, be brought before a bench of magistrates. Prison officials well know the hardening influence of gaol life on the young, and statistics show how unlikely it is that the first term of imprisonment will be the last in the case of children of tender years. They learn the secret which should jealously be kept from them—that a short imprisonment is after all no such very terrible punishment.” Mr. Michael Davitt has learnt by actual experience the realities of English convict life at Dartmoor, Portsmouth, and Portland, and the valuable book in which he has summed up those experiences is full of wise and fruitful suggestions. After pointing out that philanthropic intentions on the part of the heads of a department are no guarantee for their administration at the hands of warders and assistant-warders, he continues[95]:—“Penal servitude has become so elaborated that it is now a huge punishing machine, destitute, through centralised control and responsibility, of discrimination, feeling, or sensitiveness; and its non-success as a deterrent from crime, and complete failure in reformative effect upon criminal character, are owing to its obvious essential tendency to deal with erring human beings—who are still men despite their crimes—in a manner which mechanically reduces them to a uniform level of disciplined brutes. There is scarcely a crime possible for man to be guilty of, short of murder, which should not, in strict justice, be expiated by seven years’ infliction of a punishment that has been brought to such a nicety of calculation that there is the closest possible surveillance of every one[Pg 246] undergoing it night and day, together with an unceasing conflict between every feeling in the prisoner that is superior to a mere condition of animal existence and the everlasting compulsion to refrain from almost all that it is natural for man to do, and to do what it is to the last degree repugnant for any rational being to consent to perform. Yet wretches who have had a London gutter or a workhouse for their only moral training-school, and who have been subsequently nurtured in crime by society’s other licensed agencies of moral corruption, receive ten, fifteen, and sometimes twenty years for thefts and crimes which should, in justice, be expiated by a twelve months’ duration of such punishment. It is these horribly unjust penalties that beget many of the desperadoes of Portland, Chatham, and Dartmoor, the murderers of warders, the malingerers, and the partial maniacs, and which implant in the minds of convicts that ferocious animosity against law and society which turns so many of them into reckless social savages.” Prince Krapotkine has also had practical acquaintance with prisons, and his conclusions also are deserving of study. In his very interesting book, In Russian and French Prisons, after describing the routine of the Maison Centrale at Clairvaux, one of the best-arranged of modern prisons, he adds:—“Such is the regular life of the prison, a life running for years without the least modification, and which acts depressingly on man by its monotony and its want of impressions; a life which a man can endure for years, but which he cannot endure—if he has no aim beyond this life itself—without being depressed and reduced to the state of a machine which obeys but has no will of its own; a life which results in an atrophy of the best qualities[Pg 247] of man, and a development of the worst of them, and, if much prolonged, renders him quite unfit to live afterwards in a society of free fellow-creatures.” And again he remarks:—“The real cause of recidivism lies in the perversion due to such infection-nests as the Lyons prison is. I suppose that to lock up hundreds of boys in such infection-nests is surely to commit a crime much worse than any of those committed by any of the convicts themselves.”[96] M. Émile Gautier, a companion of Prince Krapotkine’s, who has written a series of remarkable articles on this subject,[97] calls the prison a hot-house for poisonous plants. He points out what has often been remarked by others (Mr. Davitt, for instance), the great difference between the “bon détenu” and the “bon sujet.” “The recidivists are always the most easy to manage, the most supple—or the most hypocrital—and therefore the favourites with the officials. The misfortune is that this ‘bon détenu,’ according to the formula, soon becomes under this régime as incapable of resisting his comrades, instinctive criminals or professional evil-doers, as the warders, and as little refractory to temptation, to unwholesome stimulus, to the attraction of an illicit gain, or to the contagion of bad example, as to discipline. He can only obey—no matter whom!” And elsewhere he says: “It is well to remark that there is not one of the passions, natural or factitious, of man, from drunkenness to love, which cannot find in prison at least a semblance of satisfaction.... It need not be said that the prisoner afterwards carries out with[Pg 248] him into the world all these abnormal vices in a more developed form. The prison indeed, as it is organised, is a sewer throwing out into society a continuous flood of purulence, the germs of physiological and moral contagion. It poisons, brutalises, depresses, and corrupts. It is a manufactory at once of the phthisical, the insane, and the criminal.” Dr. Napoleone Colajanni, the eminent criminal sociologist of Naples, confirms from personal experience the evidence given by Prince Krapotkine and M. Gautier. A writer who is peculiarly well informed as to the manners and customs of the criminal classes in England writes:—“Looking at our present system of dealing with thieves, examining it from every side, it is clear that nothing can be more clumsy and inefficient—except for evil. Let any one of robust health fancy himself a prisoner within four walls, employed day after day in severest labour, without a face to look at except that of the tyrant warder or the scowling criminal, without relaxation or kindly intercourse of any kind; with nothing, in short, to subdue the darker feelings, but with everything to nourish them. Let any one of robust health fancy himself enduring this year after year—for a fifth, a fourth, or even half of a life—and then say what sort of creature he would probably become. Then there is the expense of a system which does not reform nor get rid of the thief—in old days gaol fever did the latter when the halter failed—but merely hoards him up for a while to turn him loose on society more wolfish than ever. As we deal with the thief he is our most costly national luxury.”[98] The courts of Paris and of Bourges have not hesitated to declare[Pg 249] that the chief cause of recidivism is to be found in the prison and its régime.[99] In one of the foremost American States, Ohio, an influential committee, including the Governor of the State, has reported: “With less than half-a-dozen exceptions, every gaol in Ohio is a moral pest-house and a school of crime.” The Lord Chief Justice of England (Lord Coleridge) is reported as saying, in 1885, that “there were few things more frequently borne in upon a judge’s mind than the little good he could do the criminal by the sentence he imposed. These sentences often did nothing but unmixed harm, though he was sure that throughout the country the greatest pains had been taken to make our prisons as useful as possible in the way of being reformatories. But, as a matter of fact, they were not so.”

M. Laloue, inspector-general of prisons in France, stated before a commission that “with our existing system, twenty-four hours’ imprisonment suffices, under certain circumstances, to ruin a man.” The following conversation ensued. M. Tailhand: “There is perhaps some exaggeration in the statement that twenty-four hours’ imprisonment can ruin a man.” M. Laloue: “I do not exaggerate. I say what I have seen. The prisoner meets a corrupt recidivist; they appoint a rendez-vous outside, and that man is lost.” M. Tailhand: “He must be a man of very weak character.” M. d’Havssonville: “It is such characters that succumb.”

Professor Prins, inspector-general of Belgian prisons, and the chief authority in Belgium on these questions, writes:—“What is the advantage, unless the necessity is absolute, of putting into prison the head of a family[Pg 250] to devote him to infamy, to compromise him in the eyes of his fellow-workmen, of his wife, and of his children? Is it not to condemn these latter to abandonment, misery, and mendicity? Is it not to join to the wretchedness which is the act of destiny, a wretchedness which is the act of law? Is it not, in short, to degrade and ruin the delinquent, thus to deliver him over to the suggestions of despair, and to risk making him a recidivist?”[100]

Garofalo, the eminent Neapolitan lawyer, certainly one of the most sagacious of those who have in recent years studied the treatment of the criminal, writes:—“Suppose that in some legendary country an austere king forbade all flirtation with married ladies, and that the punishment threatened to the guilty one should be a prohibition to leave during several weeks a certain club, a magnificent hotel, with gardens and terraces, where this gentleman would find his best friends, his old comrades at board and game, who, far from blaming him, would be glad to do the same. In this sympathetic environment we may be sure they would treat with much contempt the absurd law and the punishment it inflicted. Who would not laugh to think that it should be pretended that after such a punishment this individual would not recommence his ordinary life and commit again the very offences for which he has been punished?”[101]

“Imprisonment,” affirms Reinach, in his often-quoted work, Les Récidivistes, “especially if short, is an excitation to crime.” “As to the reformation of the criminal,” remarks Dr. Paul Aubrey, in a recent and able study, Le Contagion du Meutre, “that is a[Pg 251] myth; the prison is still the best school of crime which we possess.” “The houses of correction are much more houses of corruption,” said a young Italian thief. “Clever robberies are arranged in prison,” a thief told the Abbé Moreau; “the prisoners all know each other; once at liberty they can find one another.” “I have seen young men enter the Grande Roquette,” the Abbé observes elsewhere, “guilty, but not corrupted, who went out decided to commit crimes which a few months before they would have regarded with horror.”

It is unnecessary, I trust, to accumulate further evidence on this point; it is a melancholy though far from a difficult task. It must be sufficiently clear that the modern prison, with its monotonous routine of solitary confinement, varied by bad company, is fruitful of nothing but disaster to the prisoner and to the society on which he is set loose. Such mitigation of its influence as may be found is chiefly due to voluntary charitable agency.

There is one group apart from the chorus of damnation which has of late years greeted the modern developments of the prison. Unfortunately it is a sinister and terrible group of exceptions. The prison is an incubator for those who are young in crime, a place of torture for those who possess the finer feelings of humanity, that is precisely the class of people, usually, who ought not to be sent to prison; but to habitual offenders, the confirmed recidivists, precisely the class of people on whom the prison ought to work as at once a reforming and deterring influence, it is simply a welcome and comfortable home. It is a well-known fact that the prison is preferred to the workhouse. “Whole[Pg 252] classes,” as Mr. Horsley truly remarks, “are brought to consider that, from several points of view, the prison is preferable to the workhouse.” “Amidst the mass of our fallen sisters in gaol,” a prison matron observes (Female Life in Prison), “there are these strange practical philosophers—women who have weighed all the chances between the workhouse and the prison, and who, being compelled to choose between one and the other, strike the balance in favour of the gaol. A little less liberty, but more kindness and attention; better food and more friendly faces—only the key turned upon them, and their sleeping chamber called a cell!” “It is a painful fact,” remarks Mr. F. W. Robinson, “that the ordinary female convict considers herself above the woman in the Union. ‘Look at these shawls,’ was said once by an indignant prisoner upon a new style of shawl being introduced into the service; ‘do they take us for those poor workhouse wretches, I should like to know!’” The author of Five Years’ Penal Servitude says—“A farm-labourer has told me frequently that he worked far harder for his eleven shillings a week than ever he had at stone-quarrying or anything else in prison. When at home he seldom, if ever, had meat of any sort, and his bed was but a poor affair compared to his prison couch. Here in prison, comparatively speaking, he fared sumptuously every day, and I can assure the reader he considered the living luxurious compared to what he had at home.” “There can be no doubt,” as Beltrani-Scalia remarks, “that the life of a prison is superior, from a material point of view, to that which most prisoners are accustomed to lead in liberty.” To the habitual criminal that is everything. The perpetration[Pg 253] of offences for the purpose of obtaining admission to prison is far from uncommon, and the criminal slang of various nations with its friendly synonyms for the prison is very significant on this point. There is a popular Sicilian song which says: “He who speaks evil of the Vicaria [prison of Palermo] ought to have his face cut. He who says that prison punishes, how he is deceived, poor devil!”[102] And again: “Here only will you find your brothers and friends, money, good cheer, and a peaceful time; outside you are always in the midst of your enemies, and if you cannot work you will die of hunger.”[103] Reinach mentions a mason who at the beginning of winter committed a small offence in order to spend the winter comfortably in a warm prison. The prison of Vienne (Isère) has, it is said, long been a favourite place of resort during the winter. Several of the hundred prisoners studied by Rossi had sought in prison a winter refuge. One who had frequently been in prison before for short terms, said—“Now I’ve had the good luck to get six months.” A German criminal, who had just been released from prison, attempted rape. He received a sentence of eight years’ imprisonment. He rose, thanked the court for the sentence, regretting, however, that it was not for a longer period, and adding that he had only committed the offence as an agreeable way of returning[Pg 254] to prison, where alone he found pleasant society and a life free from care. Manduca speaks of a man, advanced in years, who had just completed a long term of hard labour, and finding himself without means of subsistence, killed without any cause an old friend of his childhood. Bretignères de Courtelles found that 17 out of 115 prisoners entered prison in order to restore their health.

The habitual criminal who has grown accustomed to prison life cares for no other, and is suited for no other. “I have seen men,” said Lauvergne, “almost dying from home-sickness because they must soon leave the prison.” Jules Vallès spoke of l’air vénérable of the old convict; Émile Gautier calls it l’air reposé. Prison, he adds, is a kind of nirvana, and he tells of an old convict who possessed in a high degree this air vénérable, closely resembling Thiers, who, at the end of five years’ sentence passed at Clairvaux, wrote as follows to the director:—“Sir, you know me. You know who I am, what I am worth, and what services I can render you. Now I am about to be thrown up again into the world, where I shall not know what to do. As soon as I have consumed my allowance in having a good time I shall immediately get myself arrested. May I beg of you to have the extreme kindness, as soon as I am again condemned to several years’ imprisonment, to claim me for Clairvaux? I will inform you as to time and place, and in the meanwhile kindly reserve my place. Neither you nor I will have to repent of this agreement.” That letter, more pathetic than amusing, is the logical outcome of our prison system quite as much as of our social system.

The haphazard fashion in which the period of a[Pg 255] prisoner’s detention is fixed on beforehand is quite in harmony with the unsatisfactory character of the results obtained. It is well known that the criminal courts are prevented from awarding any sentence between two years, the longest period of imprisonment, and five years, the shortest legal sentence of penal servitude. Yet, as the Directors of Convict Prisons point out, “now that penal servitude is always carried out in prisons at home, there is no fundamental distinction between the two classes of punishment.” On the 31st of March 1888 there were in English convict prisons 6970 persons. Of these, 3034 were undergoing penal servitude for 5 years, the lowest term permitted by law; in the case of one solitary individual the exact period of 6½ years was required, while 1387 needed 7 years of prison treatment. Only 6 persons had been guilty of an iniquity equal to 9 years’ penal, but no fewer than 1022 had committed an offence equivalent to 10 years’ penal servitude, while 1 person only in England, having managed to just surpass this sum of iniquity, was in for 11 years. There were 240 in for 20 years, but only 3 for 21 years, and to 1 individual had been meted out exactly 29 years. It would be interesting to know by what delicate and complicated considerations this precise sum of guiltiness was reached. If we turn to the statistics of the United States at the same period we shall find the same peculiarities, though the variations in the periods doled out to long-term prisoners are spread over a wider field; they begin at 1 year, and include 18 for 50 years, and 82 for 99 years. “The favourite sentence,” as Mr. Wines remarks, “seems to be two years; then five, then three, then one, then four, then ten. There is throughout a tendency apparent to[Pg 256] choose sentences, the numbers representing which terminate in the figure five or a cypher.”[104] In England the decimal unit is held in chief favour by judges, whether or not they realise what it may mean to the man who afterwards thus tells his experience:—“There on my cell wall was the card; it bore my name and my sentence—20 years. No wife to cheer, no children to prattle at my knee; 20 years! O God! will it ever end? 20 years,—240 months,—1040 weeks; oh, this dread future!” The sentence may be just or not, but, whether he will or not, the judge must fix on some definite term, with such results as we see. When Pantagruel arrived at Myrelingues, he found that Judge Bridoye, after carefully considering all the facts of a case, was accustomed to decide it by means of dice; and Pantagruel fully admitted the humility, piety, and impartiality of this method. If our judges, before pronouncing sentence, were first to determine the years to be awarded by a solemn casting of dice, the result might be as good as those reached by the not very dissimilar system now adopted. “Are prisons necessary?” asks Prince Krapotkine, and the question has been variously and timidly echoed in modified forms. Necessary or not, the institution is still so deeply rooted in civilised societies that it is[Pg 257] idle yet to talk of overturning it. In spite of its acknowledged inutility we are content to pay very large sums in maintaining it, and no other method of treatment could be suddenly substituted. In England in 1889 there were 6405 persons undergoing sentence of penal servitude; in the United States there were recently 31,000 long-term prisoners; the various species of prisons in Italy contain some 70,000 persons, including 5000 incarcerated for life; in Germany, during six years, according to Professor Liszt, no fewer than 10,000,000 persons are imprisoned or fined. It is clearly idle to talk yet of the abolition of so flourishing an institution: can we give it real social utility?

The key to the failure of the prison, and a chief clue in its reform, lies in the system of administering definite and predetermined sentences by judges who, being ignorant of the nature of the individual before them, and therefore of the effect of the sentence upon him, and of its justice, are really incompetent to judge. Enough has been said of long sentences, the justice of which, it is obvious, must be quite a matter of chance. But the short-term imprisonments reveal quite as clearly the inadequacy of the system. The newspapers constantly tell of old offenders who have been in prison for over a hundred short periods. In a recent report of the Prisons Board of Ireland, the case of a woman is mentioned who was committed to Grangegorman prison thirty-four times during 1888, and never received a sentence for a larger term than fourteen days. This woman had been committed 146 times in previous years, so that she has undergone in all 180 imprisonments.

Society must say, in effect, to the individual who[Pg 258] violates its social instincts: So long as you act in a flagrantly anti-social manner, I shall exercise pressure on you, and restrain, more or less, the exercise of your freedom. I will give you a helping hand, because the sooner you begin to act socially the better it will be for both of us. I shall be glad to leave you alone, and the sooner the better; but so long as I see that you are a dangerous person, I shall not entirely leave my hold on you.

That is the only attitude towards the criminal which is at once safe, reasonable, and humane. If, holding this lamp, we turn to our prison, we see at once how incompatible with such an attitude is the system of determining beforehand the exact period of the delinquent’s detention. Many a man imprisoned for life, to his own misery, the ruin of his family, and the cost of the State, might with absolute safety to the community be liberated to-day; it is unnecessary to speak further of the thousands for whom society, inside or outside prison, has done nothing, and whom it liberates, with full knowledge that they proceed at once to prey upon itself. The great fault of our prison system is its arbitrary character. It is a huge machine working by an automatic routine. The immense practical importance of criminal anthropology lies in this: that it enables us to discriminate between criminal and criminal, and to apply to each individual case its appropriate treatment.

The first reform necessary is the total abolition of the definite and predetermined sentence. The indefinite sentence is no longer new, either in principle or practice; all that is needed is its systematic extension. It has been adopted by several of the American states, such as Massachusetts, Ohio,[Pg 259] Pennsylvania, and Kansas, and it was introduced at the famous state reformatory of New York at Elmira, by an Act passed in 1877. This Act took from the courts the power of definitely fixing the period of confinement in prisons until, in the opinion of the managers of the Reformatory, they may be let out on parole for a probationary period of six months. No imprisonment was to exceed the maximum term provided by law for the offence for which the prisoner was convicted. Several thousand criminals have passed through Elmira, and only a small percentage prove recidivists. Before a prisoner is paroled a suitable situation is, if possible, arranged for him. To an Englishman, Frederick Hill, belongs the honour of first suggesting this fruitful reform, the indeterminate sentence, and his brother, Matthew Devonport Hill, vigorously supported the principle. In 1880 Garofalo—independently, it appears—advocated indefinite imprisonment in a pamphlet entitled Criterio positiva della penalità, published at Naples, and in his great work, La Criminologie, he wisely and consistently advocates the abolition of the definite sentence of imprisonment. In Germany it was advocated in 1880 by Dr. Kraepelin, a well-known authority on these matters (Die Abschaffung des Straffmasses. Leipzig), and in 1882 Professor von Liszt, of Marburg, supported it with the weight of his authority. This fruitful reform, which sprang up almost at the same time, and with apparent spontaneity among the Anglo-Saxon, Latin, and Teutonic races, although of such recent growth, needs little advocacy. It is so eminently reasonable that to state it seems sufficient to ensure its acceptance. When its advantages are generally known and realised it will undoubtedly spread in the same way[Pg 260] that it has already begun to spread in the United States.

While the indeterminate sentence is an absolutely essential reform, if our prison system is to be redeemed from the charges that now weigh so heavily upon it, it is still only a preliminary step.

One of the first and most obvious consequences is the necessity of reorganising—or, rather, of organising—the prison staff. It is unnecessary to show here, for it has often enough been shown by those who are familiar with the inside of a prison, that practically the prisoner is always at the mercy of the warder. The philanthropic head of the department, at a distance, must always count for less than the warder, philanthropic or otherwise, on the spot. Whatever educative and socialising influences the prison may possess must pass chiefly through the hands of the warders with whom the prisoner comes chiefly in contact. It is not necessary to investigate the character and conduct of the average warder. Those who appoint him and are satisfied with him are the responsible parties. It is enough to say that the prison warder of to-day is about as well fitted for the treatment of criminality as the hospital nurse of a century ago was fitted for the treatment of disease. Every one now recognises the immense importance for the inmate of a hospital of good nursing by a trained nurse; the doctor himself is the first to proclaim the essential nature of skilful and intelligent nursing. Yet the criminal, in all his manifold variations, with his ruses, his instinctive untruthfulness, his sudden impulses, his curiously tender points, is just as difficult to understand and to manage as the hospital patient, and unless he is[Pg 261] understood and managed there is no hope of socialising him. In Italy, France, Belgium, and Switzerland there are, I believe, institutions for the training of prison attendants, but as yet they have been of little effect, as they have not apparently been conducted in connection with the prison, nor on a scientific basis. Their establishment is a pressing necessity; no person should be appointed to any position involving the care of criminals who has not been qualified by training in such a school. He would here become acquainted with the peculiarities of the various classes of criminals; he would learn to work with them and to instruct them; and, not least, he would learn to rate at its proper value the difficult and important profession on which he was entering. It is this sense of a noble social function, full of privileges as well as responsibilities, which has raised nursing to its present high position and has brought into the ranks of nurses so large a leaven of capable and refined women.

At the same time the education of the criminal need not be entirely in the hands of officers the greater part of whose time is passed within the prison. There is considerable force in the remark of Dr. Wey, the able physician of the Elmira Reformatory, concerning the advantage of the prisoner having highly skilled teachers, fresh from the outside world and mingling daily in the affairs of men. The barrier which has, in most civilised countries, been set up between the criminal and the outside world must be to some extent broken down. This is necessary in the interests of both parties. The criminal cannot be too carefully secluded from his fellow-criminals, neither can he have too much of outside socialising[Pg 262] influence, if he is to be won back from the anti-social to the social world. In some of the colonies, it is said, good results have come of voluntary visiting. It is necessary, however, that this should be judiciously regulated so as to exclude fanatical, inexperienced, and merely curious persons. Mr. Tallack tells us some amusing stories concerning the results of allowing ignorant and foolish visitors. Thus a gentleman, by talking of hell-fire, succeeded in so thoroughly exasperating a prisoner that the latter seized him, and exclaiming, “I have hell enough here already without you bringing me more of it,” would have administered summary chastisement had not a warder appeared. It is obvious that the more we restrict the intercourse of criminals in prison between themselves the more necessary it becomes to supplement the limited staff by assistance from without, which, while carefully chosen, must be chiefly voluntary. On the other hand, if we are to learn to know the criminal thoroughly, so as to learn at once how to treat him and how to protect ourselves from him, we must have a certain amount of access. “The time has now come,” as Dr. Maudsley has well said, “when we ought to use our prisons as we do our hospitals, not for the care and treatment of their inmates, but for the advancement of knowledge and the improvement of man’s estate.”[105] And M. Tarde, speaking, as a juge d’instruction, from a different point of view, insists in his well-known work, La Criminalité Comparée, on the need of every law student completing his course by an obligatory attendance of six months at the Clinique Criminelle of a prison.

[Pg 263]When we have caught our criminal we put him at once into solitary confinement. If rigidly carried out this plan has the advantage of secluding the criminal from his fellows. Regarded as a rational method of treatment, cellular confinement is a curious monument of human perversity. That it should have been established shows the absolute ignorance of criminal nature which existed at the time; that it should still persist shows the present necessity for a widespread popular knowledge of these matters. It may be possible to learn to ride on a wooden horse, or to swim on a table, but the solitary cell does not provide even a wooden substitute for the harmonising influences of honest society. To suppose that cellular confinement will tend to make the criminal a reasonable human being is as rational as to suppose that it will tend to make him a soldier or a sailor, a doctor or a clergyman. The mistake here is the old one that has vitiated so much of human action where the criminal is concerned—the mistake, that is, of supposing that at all points he is an average human being. Solitary confinement on a refined and cultured human being may produce a deep and lasting impression; a period of solitude, indeed, is for every intellectual person of immense value in helping him to know himself; though even here, if compulsory and unbroken, it can scarcely be without demoralising effect. But the case is quite different when we turn to the vacuous-minded, erratic, and animal person who is usually the criminal. Solitude produces in him, as Professor Prins remarks, no intellectual activity, and no searching of conscience; it serves merely to deepen his mental vacuity and to deliver him over to unnatural indulgence in the one animal[Pg 264] appetite of which he cannot be deprived.[106] Professor Prins points out, as does Prince Krapotkine, that the cell excludes all the bracing influences of struggle; the morality of the cell is submission, punctuality, quietness, politeness to warders. A moral life shut up in such a frame has nothing in common with social morality. Beltrani-Scalia, formerly Inspector-General of Prisons in Italy, is of the same opinion, and remarks that “the cellular system looks upon man as a brother of La Trappe.”

Dr. Wey, of Elmira, states the rational method of treatment when he remarks—“Education means occupation, either mental or physical. The time of the convict should be so employed in his shop-work and school duties as to leave him no leisure moments in which to revive the past, and live over again in memory his criminal days or plan for the future; but each hour should bring to him its employments and engross his attention till the time for sleep.”[107]

The experiments in the treatment of the criminal which are being carried on at Elmira are probably of more wide-reaching significance than any at present carried on elsewhere. It is worth while to consider them somewhat in detail. I select an experience carried on during 1886 and recorded by Dr. Wey, who had charge of it. On June 5th, 1886, Dr. Wey[Pg 265] selected eleven dullards between the ages of nineteen and twenty-nine. For a period of one to two years previously these men had made no progress. “In physiognomy they presented features indicative of criminal tendencies. Not one had learned a trade, but all had made a precarious living as common labourers, tramps, hostlers, and street-loafers. One was convicted for assault in the first degree; five for burglary in the third degree; one for grand larceny in the first degree; three for grand larceny in the second degree; one for rape, and one for attempted rape. The environment of most of the men previous to conviction was bad, many of them confessing to have had intemperate parents, while one told of an insane, and another of an epileptic mother.” All however were well nourished, and their functions, save that of the skin (five had acne and one ichthyosis) well performed. “An idea of their mental attainments can be formed from the fact that one could neither read nor write; one barely do either; four understood the successive steps necessary to work an example in long division, but never could obtain the correct answer; while the balance came to grief upon the shoals of rudimentary arithmetic from notation to simple division. Their stock of information was surprisingly small, being generally limited to a slight knowledge of the things they liked to eat and the work they preferred to do.”

The treatment adopted included a special dietary, bathing, massage, gymnastics, and a continuation of the usual school-work. The daily industries of the shop, etc., were suspended.

The food was varied each day, and was sufficient in quantity without being excessive; it was weighed[Pg 266] out to each, and provided at a common table, instead of, as usual, in the cells, in unrestricted quantity. The experience at Elmira shows that better results are obtained when the amount of food is restricted than when it is unlimited in quantity. Dr. Wey is strongly in favour of a diet consisting chiefly of milk and bread and butter.

The bathing and massage formed a very important part of the treatment. The routine, after several trials, resolved itself into three baths a week—i.e., one tub and two vapour baths one week, followed the next week by two tub baths and one vapour. “The tub bath consisted in placing a man in a tub of water heated to about 100° F., and leaving him there to rub and soap himself for fifteen minutes or longer. From the tub he was placed upon a marble slab, where he was drenched with hot and cold water and sponged. After this the body was spatted until the skin was in a glow, the muscles pinched and kneaded, passive motions of the joints employed, followed by a brisk rubbing with a coarse wash-towel or Turkish bathing mitten, all this being done by a professional trainer, who was available at the time. Being obliged to make use of the facilities at hand, the vapour bath was the moist instead of the dry or heated air, and consisted of turning steam into a room, and maintaining an atmosphere of 115° F.” This was followed by massage as before. After the bath the men usually slept until dinner time.

After dinner they were put through two hours or more of active physical exercise. In the beginning this consisted of the drill employed in the case of raw recruits, supplemented by dumb-bell exercises.[Pg 267] At first they were an awkward squad, slow to comprehend an order and deliberate in its execution. It was some weeks before they were able to march in line and to keep step.

On November 7th the class was discontinued, and the men were assigned to various shops and employments.

The results of this treatment were in every respect remarkable. As they slowly advanced in their studies an increased mental activity was noted, and the workings of the mind were less forced and laborious than at the beginning. In mental arithmetic they made progress, and were able, with comparative ease and rapidity, to add three or four single numbers. “The drill and discipline they were subjected to wrought an improvement in their physical condition. The baths and stimulation of the cutaneous system brought the skin to the highest degree of functional activity, overcoming the integumentary disorders of five noted in the beginning. The daily drill and dumb-bell exercises hardened and developed muscles that previously were soft and flabby, and the entire muscular system acquired firmness and power. The setting-up drill improved the carriage and conferred a rapidity of action not before indulged in. The aimless shuffling gait gave way to a carriage inspired by elastic muscles and supple joints. The faces parted with the dull and stolid look they had in the beginning, assuming a more intelligent expression, while the eye gained a brightness and clearness that before was conspicuous by its absence. With physical culture and improvement there came a mental awakening, a cerebral activity never before manifested in their prison life. The purely animal man with[Pg 268] his ox-like characteristics seemed to recede before the intellectual. Their progress in school-work was not steadily onward, but intermittently progressive.” Whereas in the six months before the class was formed the men had obtained less than 10⁄11 of a mark (for demeanour, labour, and school) per man each month, during the six months that followed the breaking-up of the class the number of marks earned was 77⁄16 per month per man. There was a simultaneous and rapid improvement, moral, physical, and intellectual—an improvement that was common to all, although more pronounced in some, and which was very encouraging, considering the material of which the class was formed. A year later several had been released on parole, and were demonstrating their ability to maintain themselves honestly, while only two of them, still in prison, were not doing well.[108]

The results of this and similar experiments have been so satisfactory that a fully-equipped gymnasium and Turkish bath are now in course of erection at Elmira. “Here,” Dr. Wey tells me, “we propose to treat those who are in arrears both in body and mind, and prepare them for work and study in the schools of letters and trades. By this plan it is possible to impress later the mind to a greater degree than could be done by taking up its cultivation at the time the man comes to us.”

In 1888, when the Yates bill became law, the productive prison industries of Elmira had to be suspended. “Within less than a month,” writes Dr.[Pg 269] Wey, “from the passage of the bill, all the men who previously were employed in productive industries (industries yielding revenue) were being drilled in military evolutions and tactics. In other words, idleness was avoided by turning the prison into a military school. The men received from four to six hours of drill daily, which was sufficient to prevent them from rusting in their cells. By this means the health of the men was maintained, and opportunity was afforded for increasing the scope of school-work, trades, and letters. A drum corps was formed, and instruction given others in instrumental music, with the sequence that to-day [29th October 1889] we have a drum and fife corps of about twenty, and a band composed of twenty or more wind instruments.[109] Two afternoons a week are devoted to military work, the balance being devoted to technical instruction. The effect of the military drill and discipline was so good in the way of a health measure and in improving the carriage of the men that I doubt if it will soon be discontinued. It was another phase of the application of physical training.” The report of the able superintendent of Elmira, Mr. Z. R. Brockway, fully confirms these conclusions.

Just now the industries of New York prisons are partially re-established. The Fassett bill, passed in the spring of 1889, enabled various industries to be apportioned to the various prisons, one prison not to compete with another, and the number of men engaged in any one industry in a prison not to exceed[Pg 270] five per cent. of the total number engaged in the same industry throughout the entire state. The question of productive prison industry is still, however, far from settled.

The physical and industrial education is not the whole of the training given at Elmira. A third, and scarcely less important, factor is the moral and æsthetic training. There is no official chaplain at Elmira. “There is,” says Mr. Brockway, “in the minds of men, as observed during imprisonment, an unexplained but actual repugnance to professional, official, and stereotyped religious phrases, while for the noble character of the practical Christian, in common affairs, unheralded and unnamed, there is among prisoners a quick and favourable response.” Although there are no resident chaplains, various ministers and others—Protestant, Catholic, and Jewish—attend frequently, and hold services, lectures, classes, etc. The class in Practical Morality, originated a few years ago by Professor Collin, has been judiciously managed, and has proved a valuable feature in the work. The æsthetic culture has been chiefly carried on by means of the systematic study of literature. The results in this department have been unexpectedly encouraging. At first the men met the attempt with sullen stupidity as a new task imposed upon them. Gradually this impression was conquered; the men slowly began to acquire an eager appetite for Chaucer and Shakespeare, for Emerson and Browning. The applications for admission to the English Literature class became very numerous, and at one time there was so great a run on Jowett’s Plato at the Reformatory library that a special regulation had to be made concerning its issue. It is satisfactory to learn that this taste has, in[Pg 271] many cases at all events, survived incarceration, as a wholesome recreation for leisure hours. “In my work with the class in English Literature,” writes the instructor in that department, Mr. Douglas, “I proceed on the basis that the earnest obligatory study—let me emphasise the word study—of mental and moral beauty developes or creates the mental and moral faculty of appreciation; and, furthermore, that mental and moral habits may be formed just as certainly as physical habits, and without any more conscious co-operation of the individual than is required in physical practice.” It has been mentioned already that a newspaper, the Summary, is published within the Reformatory; it contains both local and general news, as well as passages from good authors; the inmates contribute to this paper, and at one time it was ably edited by a prisoner. It has been said, with justice, that the Summary compares favourably with the average American newspaper published outside prison walls.

The prison, as Professor Collin remarks, must be “a moral hospital.” As Sir Thomas More said long ago, the end of punishment is “nothing else but the destruction of vices and the saving of men.” Mr. Brockway, and those who are working with him, have clearly realised this; the training they give is rational and scientific, and hence its success. During the thirteen years from the opening of the Reformatory to the end of 1889, nearly 4000 prisoners were received at Elmira on an indefinite sentence. Over 2300 of these were paroled, and of these 15.2 per cent. only are estimated as having “probably returned to criminal practices and contact.”

[Pg 272]Elmira is at present the most promising direction in which we can turn for light on the treatment of the criminal. Its wholesome and improving discipline stands in favourable contrast to the lax indulgence and shameful neglect of the criminal which coexist generally in the United States. The system is not perfect, and it has been unfavourably reported on by some observers. It is undoubtedly a defect that the prisoner must be released, whatever his condition, at the expiring of his legal maximum sentence; this is, however, an inevitable compromise. Notwithstanding all defects, Elmira is full of encouragement, for it shows us a community awakening to an active sense of its duties, so long forgotten, towards those weaker members who, if neglected, become so dangerous to themselves and to others. “It is an interesting sight,” remarks Dr. Wey, “when the school is in session, to see a group of men, felons every one, gathered about an instructor, intently listening as he makes clear some step in the work in hand not fully or clearly understood, going through the various processes, one by one, and explaining until the dullest mind can comprehend. It is not expected that, with the comparatively limited time for instruction, these men will become skilled mechanics. But rather the idea has been to train the hand and eye, and teach the use of tools, to awaken an ambition to pursue a lawful calling, and appreciate the value of a practical knowledge of a trade, so that when the time shall come that they pass beyond the prison doors, and again come into contact with society, they will not be handicapped by the same conditions that formerly operated to their detriment; but with increased resources of mind and body will be enabled to occupy a higher and more[Pg 273] self-respecting place.”[110] The example of Elmira is spreading in America; in Ohio, for instance, youthful criminals are being brought up on the broad basis of manual training, and among the branches of industry taught are farming, fruit-growing, carpentry, shoemaking, painting, tailoring, baking, laundring, housework, vocal and band music, telegraphy and printing. On the continent of Europe—especially, perhaps, in Germany—the system is beginning to attract attention; and while it would be too sanguine to conclude that Elmira has solved the question of the treatment of the criminal, there can be no doubt as to the value of its contribution to this difficult problem.[111]

[Pg 274]It can scarcely be necessary to say that in any effectual treatment flogging can have no part. It would not have been necessary to say a word on this point if within very recent times an English Parliament had not been found so lamentably ignorant of historic evolution in this matter, of the results of experience, and of rational principles, as to pass a Corporal Punishment Bill. The objections to flogging are by no means of a sentimental character. We have seen that the instinctive criminal, although often cowardly enough, is by no means peculiarly sensitive to pain. Flogging is objectionable because it is[Pg 275] ineffectual (as was shown long since), and because it brutalises and degrades those on whom it is inflicted, those who inflict it, and those who come within the radius of its influence. These facts are well known to those who have more than a superficial acquaintance with the insides of prisons, and should have been ascertained by those individuals who presume to legislate, before they voted in the face of reason and experience. To flog a man for whatever offence, however brutal, is to sanction his brutality. Capital punishment, which is brutal like flogging, is comparatively free from the brutalising influence of flogging. The method of flogging is so obviously unfit to humanise and socialise any human being, that the impulse to inflict it can only spring from a relic of savagery of the same kind as that which inspires the criminal, without his excuse of a morbid or defective organisation. It can only be said in excuse of those who advocate it that they have no experience in the matter. Those who have witnessed it have, however, recorded their experiences. Thus, to mention one instance, Sir Robert Rawlinson, after giving a vivid account of flogging as he has himself seen and heard it, adds:—“I will strive in my mind to judge those members of Parliament who now advocate the revival of corporal punishment charitably, by considering that they have never seen it as I have feebly attempted to describe it: the degraded man lashed to the triangles, the white clean skin of an Englishman exposed to the cool morning air, to be scored, cut up, and scarred into a pulpy, blood-smeared lump of living human flesh. Take the vision away: it is too hideous even to remember.” Even if there were less evidence as to the ineffectual[Pg 276] character of flogging as a deterrent, and to its bad influence on the morale of a prison, we cannot afford to flog any human being. It is well to meditate on the words of Dostoieffsky, who was familiar with the various forms of flogging, and has recorded his convictions in his Recollections of the Dead-House. After giving his opinion that “the rods are the most terrible punishment in use among us,” and speaking of the demoralising influence of flogging on those who inflict it, he concludes:—“Let me add that the possibility of such a licence acts contagiously on the whole of society: such a power is seductive. A society which regards these things with an indifferent eye is already infected to the bone. The right accorded to a man to punish his fellows corporally is one of the sores of our society; it is the surest method of annihilating the spirit of citizenship.” Flogging has not yet reached among us the extension which it then had in Russia and in Siberia, but its character and influence remain the same, and the warning seems to be still needed.

With the indeterminate sentence must always be associated conditional liberation—i.e., liberation by ticket-of-leave or on parole, liable to revocation in case of misbehaviour. It is not, however, necessary to insist on this, as the principle has long been practically recognised in England and elsewhere. It exists in Belgium, some of the American states, Hungary, Saxony, Switzerland, the Grand Duchy of Baden, etc.

A very desirable accompaniment to any system of dealing with criminals is a sound system for their registration and recognition. The method originated by M. Alphonse Bertillon is now adopted in France,[Pg 277] Russia, Japan, Spain, Italy, the Argentine Republic, and some parts of Germany, and it is being adopted in several of the United States. By this method the height, the length and width of head, the measurements of left foot, of outstretched arms, of trunk when seated, of fourth finger of left hand, of left arm, length of ear, colour of eyes, and any marks are recorded, together with the photograph, profile and full face. The method of classifying the photographs in its simplest form was thus generally described by M. A. Bertillon a few years ago (Revue Politique et Littéraire, 28 April 1883). Suppose we have 80,000 photographs. They are first divided according to the sex, the men on one side, the women on the other. These latter do not reach 20,000. The 60,000 men who remain are divided into three classes according to height; the short numbering about 20,000, the middle-sized numbering about 20,000, and the tall 20,000. Each of these divisions is divided into three series according to length of head. These new divisions, to the number of nine, contain rather more than 6000 each. Each of these sub-divisions is then divided into three groups according to length of foot, each group containing about 2000 photographs. Each of these groups is again sub-divided into three, according to length of outstretched arms (grande envergure). Each of these groups contains about 600, and they are further sub-divided with reference to age, colour of eyes, and length of middle finger. Thus by means of four new anthropological characters (sex, height, age, and colour of eyes have long been noted) 80,000 photos can be easily divided into groups of 50. The measurements can be taken in two or three minutes, and require no[Pg 278] special intelligence. When an individual stands as regards height at the border of two classes, he is put into both.

Thrusting a man into prison, when everything is said, is a measure only to be taken with the utmost circumspection, after consideration of the individual’s antecedents, and a clear conception of the ends to be attained by imprisoning him. To relegate almost indiscriminately to prison the miscellaneous army that file through a police court is an ignorant and dangerous policy; there is little hope of good result, and a considerable chance of evil result. If the period is for a few weeks only no permanent beneficial end can be anticipated, even under the best of conditions; while during so short a period no useful work can be commenced, so that there is a direct incitement to idleness. When the prison has been decided on, the period of detention must be indefinite, according to the results attained in the opinion of those competent officers specially appointed to form such decisions, and the liberation will be conditional.

It is a wholesome sign of progress that in so many European countries substitutes for the prison, in the case of minor offenders (i.e., occasional criminals), are being anxiously sought and gradually adopted. One cannot avoid seeing how many individuals are unnecessarily condemned even to penal servitude. In our convict prisons there exists a very excellent plan, entirely in accordance with rational principles, of forming what is called a “Star” class of convicts—that is, a “special class of those not versed in crime.” The authorities “cannot speak too highly of the general tone and behaviour” of these men, their[Pg 279] “decidedly good disposition,” “keen anxiety to gain a knowledge of some sort of trade,” sense of “the moral degradation in which they have placed themselves,” etc. Their industry and freedom from prison offences are so marked, “and the special reports on the subject have been so uniformly to the same effect, that it is no longer necessary to call for such reports.” This is all very gratifying, but it is not at all clear that these men should have been convicts at all. There are other and more satisfactory methods of dealing with such persons.

It is not possible here to do more than touch slightly on the various methods of dealing with occasional criminals. The one that approaches most nearly to imprisonment is the method of pronouncing suspended sentences of imprisonment to hang over the inculpated individual during a limited period, at the end of which period, if his behaviour is good, the sentence lapses. Imprisonment is thus, as Mr. Tallack remarks, commuted into liability to imprisonment. This plan, applied to minor offences, was adopted in Belgium in 1888, and is in use in some of the United States. In England the First Offenders’ Act enables the magistrate to accept the prisoner’s own recognisances to come up for judgment if called upon, but the law does not seem to be applied so frequently as is desirable. The old English system of recognisances, in which the guilty party deposits a sum of money, is an excellent guarantee to society against his recidivism, and is deserving of extension to all those cases to which it may prove adapted. This plan has been adopted in the United States and in Denmark. A very large proportion of small offenders can be dealt with adequately by means of a[Pg 280] fine. This should not be of too trifling a character when the offence has been frequently repeated, and the means of the offender are ample. Nor does it appear desirable that the offender should be allowed at will to choose between fine and imprisonment. The notion of reparation should be combined with the fine when possible, the offender, as Garofalo proposes, paying an indemnity to the injured person, and a fine to the community. With our abstract and impersonal method of dealing with crime, we are much too apt to forget the recompense that is due to the injured person. Féré has suggested that the State ought to undertake this reparation; the community, he argues, has failed in its duty of protecting one of its members, and it ought therefore to repair the injury which it has not known how to prevent. Crime being largely the result of social conditions, the damage it causes should be supported socially by the society which generated the individual. A more practical first step, however, seems to be a recognition that the criminal should be bound to repair the damage he had caused. This reparation should be on a very liberal scale, and with due regard to the anxiety or suffering inflicted on the injured party. When the offender is not in a position to pay money, there should, as Prins points out (and Sir Thomas More long before him), be suitable provision to enable him to give so many days of his labour to work out his penalty and reparation. In several European countries imprisonment for mendicity, vagabondage, and other minor offences, has been abolished, and compulsory work substituted: this is a reasonable change.

In the slightest cases of all, every end of social[Pg 281] protection should be attained by a formal “caution.” The publicity which this involves is itself, under modern conditions of life, a sufficient safeguard.

The special and very numerous class of habitual drunkards must be dealt with by special methods. The method, if method it can be called, of treating such cases by a few days’ imprisonment is glaringly ineffective. It is a waste of public time and money, as well as a danger to the individual himself and to society. Habitual inebriates can only be dealt with fairly when they are recognised as diseased persons, to be treated on rational principles, and to be saved, whether they will or not, from doing injury to society and to themselves. It is incomprehensible that in so drunken a country as England this question should not before now have had serious attention, instead of being left to voluntary agency. To leave habitual alcoholism and its results to voluntary agency is as reasonable as it would be to leave the care and control of the insane to voluntary agency. The case for the control and treatment of the inebriate is, indeed, considerably stronger than that for controlling the insane.

To sum up briefly the points in the treatment of the criminal which have been reviewed in this chapter:—

Capital punishment is disappearing. There is, however, no reason to hasten unduly its complete extinction, because lifelong imprisonment, under existing conditions, is frequently less humane, and is not of greater value for purposes of social protection.

The prison needs to be made a far more active and thorough instrument of social reformation than it is at present. Great circumspection must be shown in selecting the individual whom it is desirable to send[Pg 282] to prison, but when selected he must be retained until there is reasonable presumption that he will no longer be dangerous to society. In place of mere routine and surveillance, he must be subjected to intelligent and energetic treatment. While he should usually be guarded from contact with his fellow-prisoners, it is desirable, with due restrictions, to promote his intercourse with selected persons of the outside world. His conditional liberation should be delayed until he can be placed in some situation which will enable him to earn his own living. The plan of fixing beforehand the period of the prisoner’s detention appears to have nothing to recommend it, and should be entirely abolished.

In dealing with occasional criminals whom it is not necessary or desirable to put into prison, liability to imprisonment should be substituted. The system of recognisances and of fines to the community, together with reparation to the injured individual, should be developed and extended to all cases to which it may suitably be applied. When the offender is unable to pay a pecuniary fine, he should not be imprisoned, but compelled to give his work.

The class of habitual drunkards requires special and compulsory treatment in special asylums.

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