Under this head there is a radical contradiction. The existing schemes of punishment, differing in their machinery (and out of harmony with the sentence of the judge, often even with the terms of the law), are all based on the principle of fixed periods of punishment, graduated into hundreds and thousands of possible doses, and have regard far more to the crime than to the criminal. On the other hand we have the positive system of punishment, based on the principle of an unfixed segregation of the criminal, which is a logical consequence of the theory that punishment ought not to be the visitation of a crime by a retribution, but rather a defence of society adapted to the danger personified by the criminal.

This principle of unfixed punishment is not new, but it is only the positive theory which has given it system and life. The idea of justice as a.s.signing punishment to a crime, measured out by days and weeks, is too much opposed to the principle of the indeterminate sentence to allow it to receive any systematic trial under the sway of the cla.s.sical theories. There has been only an isolated and exceptional use of it here and there, such as the seclusion of mad criminals in special asylums, "during her Majesty's pleasure," in England. Nevertheless, personal freedom (which is held to be violated by seclusion for unfixed periods) is greatly respected by the English people.

The fundamental principle of law is that of a restriction imposed by the necessity of social existence. It is evident, therefore, to begin with, that seclusion for an unfixed period, as for life, is in no way irreconcilable with this principle of law, when imposed by necessity. Thus it has been proposed, even by the cla.s.sical school, as a mode of compensation or adjustment.

If, indeed, we admit an increase of punishment for a first relapse, it is logical that this increase should be proportional to the number of relapses, until we come to perpetual seclusion or transportation, and even to death, as under the mediaeval laws. So that there are some of the cla.s.sical school who, by way of being logical if not practical, and refusing to admit progressive increase, begin by refusing increase in any degree, even for a first relapse.

Moreover, if the jurists agree in allowing conditional liberation, before the term a.s.signed in the sentence, when the prisoner seems to have given proof of amendment, the natural consequence, by mere abstract logic, ought to be a prolongation of punishment for the prisoner who is not amended, but continues to be dangerous.

This is admitted, amongst others, by Ortolan, Davesies de Pontes, and Roeder, who quote as favourable, though only for recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve, von Lichtenberg, Gotting, Krause, Ahrens, Lucas Bonneville, Conforti, and others, amongst students of criminality; and Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D'Alinge amongst prison experts.

After this first period, the principle of segregation for an unfixed term, as a basis for the penal system, has been supported by Despine, and developed by a few German writers. These latter have insisted especially on the disadvantages of the penal systems inspired by the cla.s.sical theories, though they run somewhat to excess, like Mittelstadt, who proposed the re- establishment of the brutal punishment of flogging.

In corporal punishments, it is true, there would be a certain gain of efficaciousness, particularly against such hardened offenders as the born criminals, so that there is a reaction in favour of these punishments. M. Roncati, for instance, writing of prison hygiene, says that he would be glad to see "the maternal regime," with its salutary use of physical pain before the child has developed a moral sense; and if flogging is objectionable, resort might be had to electricity, which is capable of giving pain without being dangerous to health or revolting. Similarly Bain says that the physiological theory of pleasure and pain has a close relation to that of rewards and punishments, and that, as punishment ought to be painful, so long as it does not injure the convict's health (which imprisonment is just as likely to do), we might have recourse to electric shocks, which frighten the subject by their mysterious power, without being repugnant. Again, the English Commission of Inquiry into the results of the law of penal servitude declared in its report that, "In English prisons, disciplinary corporal punishments (formerly the lash, then the birch) are inflicted only for the most serious offences. The evidence has shown that in many cases they produce good results."

Nevertheless corporal punishments, as the main form of repression, even when carried out with less barbarous instruments, are too deeply opposed to the sentiment of humanity to be any longer possible in a penal code. At the same time they are admissible as disciplinary punishments, under the form of cold baths, electric shocks, &c., all the more because, whether prescribed by law or not, they are inevitable in prisons, and, when not regulated by law, give rise to many abuses, as was shown at the Stockholm Prison Conference in 1878.

I agree with Kirchenheim that Dr. Kraepelin's scheme of seclusion for unfixed periods is more practical and hopeful. When the measure of punishment is fixed beforehand, the judge, as Villert says, "is like a doctor who, after a superficial diagnosis, orders a draft for the patient, and names the day when he shall be sent out of hospital, without regard to the state of his health at the time." If he is cured before the date fixed, he must still remain in the hospital; and he must go when the time is up, cured or not.

Semal reached the same conclusion in his paper on "conditional liberation," at the second Congress of Criminal Anthropology.

And this notion of segregation for unfixed periods, put forward in 1867 for incorrigible criminals by the Swiss Prison Reform a.s.sociation, has already made great progress, especially in England and America, since the Prison Congress of London (1872) discussed this very question of indefinite sentences, which the National Prison Congress at Cincinnati had approved in the preceding year.

In 1880 M. Garofalo and I both spoke in favour of indefinite segregation, though only for incorrigible recidivists; and the same idea was strikingly supported in M. Van Hamel's speech at the Prison Congress at Rome (1885). The eloquent criminal expert of Amsterdam, speaking "on the discretion which should be left to the judge in awarding punishment," made a primary distinction between habitual criminals, incorrigible and corrigible, and occasional criminals. "For the first group, perpetual imprisonment should depend on certain conditions fixed by law, and on the decision of the judge after a further inquiry. For the second group, the application of an undefined punishment after the completion of the first sentence will have to depend in the graver cases on the conditions laid down by law, and in less serious cases upon the same conditions together with the decision of the judge, who will always decide from time to time, after further inquiry, as to the necessity for prolonging the imprisonment. For the third group, the judge will have to be limited by law, in deciding the punishment, by special maximums, and with a general minimum."

The Prison Congress of Rome naturally did not accept the principle of punishment for unfixed periods. More than that, advancing on the cla.s.sical tendency, it decided that "the law should fix the maximum of punishment beyond which the judge may not in any case go; and also the minimum, which however may be diminished when the judge considers that the crime was accompanied by extenuating circ.u.mstances not foreseen by the law."

It is only of late years, in consequence of the reaction against short terms of imprisonment, that the principle of segregation for unfixed periods has been developed and accepted by various writers, in spite of the feeble objections of Tallack, Wahlberg, Lamezan, von Jagemann, &c.

Apart, also, from theoretical discussion, this principle has been applied in a significant manner in the United States, by means of the "indeterminate sentence." The House of Correction at Elmira (New York) for young criminals carries into effect, with special regulations of physical and moral hygiene, the indeterminate imprisonment of young prisoners; and this principle, approved by the Prison Congresses at Atlanta (1887), Buffalo (1888), and Nashville (1889), has been applied also in the New York prisons, and in the States of Ma.s.sachusetts, Pennsylvania, Minnesota, and Ohio.

M. Liszt proposes that the indeterminate character of punishment should be only relative, that is to say, limited between a minimum and a maximum, these being laid down in the sentence of the judge. Special commissions for supervising the administration of punishment, consisting of the Governor of the prison, the Public Prosecutor, the judge who heard the case, and two members nominated by Government (instead of the court which pa.s.sed sentence, as proposed by Villert and Van Hamel), should decide on the actual duration of the punishment, after having examined the convict and his record. Thus these commissions would be able to liberate at once (with or without conditions) or to order a prolongation of punishment, especially for habitual criminals.

With the formation of these commissions there might be a.s.sociated the prison studies and aid of discharged prisoners referred to on a former page.

But I think that this proposal of M. Liszt is acceptable only for commissions of supervision, or of the execution of punishment, such as already exist in several countries, with a view solely to prison administration and benevolence, and in which of course the experts of criminal anthropology ought to take part, who, as I have suggested, should be included in every preliminary criminal inquiry. As for the determination of the maximum and minimum in such a sentence, I believe it would not be practicable; the acting commissions might find it necessary to go beyond them, and it would be opposed to the very principle of indeterminate segregation. The reason given by M. Liszt, that with this provision the contrast with actual systems of punishment would be less marked, does not seem to me decisive; for the principle we maintain is so radically opposed to traditional theories and to legislative and judicial custom that this optional pa.s.sing of the limits would avoid no difficulty, whilst it would destroy the advantages of the new system.

In other words, when the conditions of the act committed and the criminal who has committed it show that the reparation of the damage inflicted is not sufficient by way of a defensive measure, the judge will only have to p.r.o.nounce in his sentence an indefinite detention in the lunatic asylum, the prison for incorrigibles, or the establishments for occasional criminals (penal colonies, &c.).

The execution of this sentence will be rendered definite by successive steps, which will no longer be detached, as they now are, from the action of the magistrate, and taken without his knowledge, but will be a systematic continuation of his work. Permanent commissions for the supervision of punishment, composed of administrative functionaries, experts in criminal anthropology, magistrates, and representatives of the Public Prosecutor and the defence, would render impossible that desertion and oblivion of the convict which now follow almost immediately on the delivery of the sentence, with the execution of which the judge has nothing to do, except to see that he is represented. Pardon, or conditional liberation, or the serving of the full punishment, are all left at present to the chance of a blind official routine. These commissions would have great social importance, for they would mean on one hand the protection of society against imprudent liberation of the most dangerous criminals, and on the other hand the protection of the less dangerous against the danger of an imprisonment recognised as excessive and unnecessary.

Allied to the principle of indeterminate segregation is that of conditional release, which with the progressive prison system, known as the Irish, is now accepted in nearly all European countries. But conditional liberation in the system of definite punishments, without distinction amongst the types of criminals, is both contradictory in theory and ineffectual in practice. At present, indeed, it has only a mechanical and almost impersonal application, with one fallacious test, that of the alleged "good conduct" of the prisoner, which, according to the English Inquiry Commission in 1863, "can only have the negative value of the absence of grave breaches of discipline."

It will be understood that conditional release, as it would be organised in the positive system of indeterminate segregation, ought only to be granted after a physio-psychological examination of the prisoner, and not after an official inspection of doc.u.ments, as at present. So that it will be refused, no longer, as now, almost exclusively in regard to the gravity of the crime, but in regard to the greater or less re-adaptability of the criminal to social conditions. It will therefore be necessary to deny it to mad and born criminals who are guilty of great crimes.

Conditional liberation is now carried out under the special supervision of the police; but this is an ineffectual measure for crafty criminals, and disastrous for occasional criminals, who are shut out by the supervision from re-adaptation to normal existence. The system of indeterminate segregation renders all special supervision useless. Moreover, this duty only distracts policemen by compelling them to keep an eye on a few hundred liberated convicts, and to neglect thousands of other criminals, who increase the number of unknown perpetrators of crime.

Similarly as to the discharged prisoners' aid societies, which, notwithstanding their many sentimental declamations, and the excellence of their intentions, continue to be as sterile as they are benevolent. The reason here also is that they forget to take into account the different types of criminals, and that they are accustomed to give their patronage impartially to all discharged prisoners, whether they are reclaimable or not. It must not be forgotten, moreover, that this aiding of malefactors ought not to be exaggerated when there are millions of honest workmen more unfortunate than these liberated prisoners. In spite of all the sentimentalism of the prisoners' aid societies, I believe that a foreman will always be in the right if he chooses an honest workman for a vacancy in his workshops in preference to a discharged prisoner.

At the same time these societies may produce good results if they concern themselves solely with occasional criminals, and especially with the young, and make their study of crime contribute to the training of future magistrates and pleaders.

2. The second fundamental principle of the positive system of social defence against crime is that of indemnification for damage, on which the positive school has always dwelt, in combination with radical, theoretical, and practical reforms.

Reparation of damage suffered by the victims of crime may be regarded from three different points of view:-(1) As an obligation of the criminal to the injured party; (2) as an alternative for imprisonment for slight offences committed by occasional criminals; and (3) as a social function of the State on behalf of the injured person, but also in the indirect and not less important interest of social defence.

The positive school has affirmed the last two reforms-the second on the initiative of Garofalo and Puglia, and the third on my own proposal, which, as being more radical, has been more sharply contested by the cla.s.sical and eclectic schools.

In my treatise on "The Right of Punishment as a Social Function," I said: "Let us not be told that civil reparation is no part of penal responsibility. I can see no real difference between the payment of a sum of money as a fine and its payment as damages; but more than that, I think a mistake has been made in separating civil and penal measures too absolutely, whereas they ought to be conjoined for defensive purposes, in preventing certain particular anti-social acts." And again, cla.s.sifying the measures of social defence ("measures of prevention, reparation, repression, and elimination"), I said in regard to measures of reparation: "Our proposed reform is not intended to be theoretical merely, for indeed it may be said already that this liability to indemnify is established in the majority of cases; but it should be above all a practical reform, in the sense that, instead of separating civil and penal measures, we shall make their joint application more certain, and even require special regulations to compel the criminal judges, for instance, to a.s.sess the damages, and so avoid the delays and mischances of a new trial before the civil judges, and to compel the Public Prosecutor to make an official demand, even when through ignorance or fear there is no action on the part of the injured person, that the criminal should be condemned to make good the loss which he has inflicted. It will then be seen that the fear of having to make strict rest.i.tution will be a spur to the diligence of the well-to-do, in regard to involuntary offences, whilst for the poor we shall be able to impose work on behalf of the injured person in place of pecuniary damages."

Shortly afterwards Garofalo wrote: "In the opinion of our school, for many offences, especially slighter offences against the person, it would be serviceable to subst.i.tute for a few days' imprisonment an effectual indemnification of the injured party. Reparation of damage might become a genuine penal subst.i.tute, when instead of being, as now, a legal consequence, a right which can be enforced by the rules of civil procedure, it would become an obligation from which the accused could in no way extract himself."

Of all the positive school, Garofalo has insisted most strongly on these ideas, enlarging upon them in various proposals for the practical reform of procedure.

The principle has made further progress since the speech of M. Fioretti at the first Congress of Criminal Anthropology (Rome, 1885), which adopted the resolution brought forward by MM. Ferri, Fioretti, and Venezian: "The Congress, being convinced of the importance of providing for civil indemnification, in the immediate interest, not only of the injured party, but also of preventive and repressive social defence, is of opinion that legislation could most expeditiously enact the most suitable measures against such as cause loss to other persons, and against their accomplices and abettors, by treating the recovery of damages as a social function a.s.signed to its officials, that is to say, to the Public Prosecutor at the bar, to the judges in their sentences, to the prison officials in the ultimate payment for prison labour, and in the stipulation for conditional release."

The cla.s.sical principle that indemnification for loss caused by an unlawful act is a purely civil and private obligation of the offender (like that created by any breach of contract!), and that in consequence it ought to be essentially distinct from the penal sentence which is a public reparation, has inevitably caused the complete oblivion of indemnification in every-day judicial practice. For the victims of crime, finding themselves compelled to resort to the courts, and fearing the expense of a civil trial to give effect to the sentence of damages and interest thereon, have been driven to abandon the hope of seeing their loss actually and promptly compensated. Hence the necessity for some paltry compromise, which has to be accepted almost as a generous concession from the offender, together with the revival of private vengeance, and a loss of confidence in the reparatory action of social justice.

Even in the scientific domain it has come about that criminal experts have abandoned the question of indemnification to the civil experts, and these in their turn have almost suffered it to pa.s.s into oblivion, inasmuch as they always regarded it as belonging to matters of penal law and procedure.

It is only by the radical innovation of the positive school that this legal custom has received new energy and vitality.

I do not, however, intend in this place to concern myself with indemnification from the first point of view, namely, the forms of procedure necessary to render it more strict and effectual, such as the official demand and execution by the Public Prosecutor, even when no action is brought by the injured party; the fixing of the damages in every penal sentence; the immediate lien and claim upon the goods of the condemned person, so as to avoid the pretence of inability to pay; the paying down of the sum, or a part of the salary or wages of solvent defendants; compulsory labour by those unable to pay; the a.s.signment of part of the prison wages for the benefit of the victims; the payment of all or most of the damages as a necessary condition of pardon or conditional release; the establishment of a treasury of fines for prepayment to the family of the victims; the liability of the heirs of the condemned persons for indemnifications, and so forth.

All these propositions are in sharp contrast with Art. 37 of the new Italian penal code, which has given no other guarantee to the victims of offences than the superfluous, or ironical, or immoral declaration that "penal condemnation does not prejudice the right of the injured person to rest.i.tution and indemnification"-as though there were any doubt of the fact.

I only wish to insist on the question of principle, that is, on the essentially public character which we a.s.sign to indemnification as a social function. For us, to compare the liability of the criminal to repair the loss caused by his crime with the liability arising from breach of contract is simply immoral.

Crime, just as it implies a social reaction in the form of an indefinite segregation of the criminal, when the act is serious and the author dangerous, ought also to imply a social reaction in the shape of indemnification, accessory to segregation when that is necessary, or adequate by itself for social defence when the act is not serious, and the author is not dangerous. For slight offences by occasional criminals, strict indemnification will, on the one hand, avoid the disadvantages of short terms of imprisonment, and will, on the other hand, be much more efficacious and sensible than an a.s.sured provision of food and shelter, for a few days or weeks, in the State prisons.

Indemnification may naturally take two forms, as a fine or an indemnity payable to the State, and as an indemnity or a reparation payable to the injured person.

It may also be added that the State should be made responsible for the rights of the victims, and give them immediate satisfaction, especially for crimes of violence, recouping itself from the offender, as it does, or ought to do, for legal costs.

The evolution of punishment is a striking proof of this. First, the reaction against crime is an entirely private concern; then it a.s.sumes a weaker form in pecuniary reparation, whereof, by and by, a portion goes to the State, which presently retains the whole sum, leaving to the victim the poor consolation of proceeding separately for an indemnification. Nothing therefore could be more in accord with this evolution of punishment than the proposed reform, whereby the indemnification of a merely private injury, as it is regarded in the primitive phase of penal justice, becomes a public function, so far as it is the legal and social consequence of the offence.

The cla.s.sical principles in this respect, and the practical consequences which flow from them, are more like a humorous farce than an inst.i.tution of justice; and it is only the force of habit which prevents the world from realising its full comicality.

In fine, citizens pay taxes in return for the public services of the State, amongst which that of public security is the chief. And the State actually expends millions every year upon this social function. Nevertheless, every crime which is committed is followed by a grotesque comedy. The State, which is responsible for not having been able to prevent crime, and to give a better guarantee to the citizens, arrests the criminal (if it can arrest him-and seventy per cent. of DISCOVERED crimes go unpunished). Then, with the accused person before it, the State, "which ought to concern itself with the lofty interests of eternal justice," does not concern itself with the victims of the crime, leaving the indemnification to their prosaic "private interest," and to a separate invocation of justice. And then the State, in the name of eternal justice, exacts from the criminal, in the shape of a fine payable into the public treasury, a compensation for its own defence-which it does not secure, even when the crime is only a trespa.s.s upon private property!

Thus the State, which cannot prevent crime, and can only repress it in a small number of cases, and which fails accordingly in its first duty, for which the citizens pay it their taxes, demands a price for all this! And then again the State, sentencing a million and a half to imprisonment within ten years, puts the cost of food and lodging on the shoulders of the same citizens, whom it has failed either to defend or to indemnify for the loss which they have suffered! And all in the name of eternal retributive justice.

This method of "administering justice" must be radically altered. The State must indemnify individuals for the damage caused by crimes which it has not been able to prevent (as is partially recognised in cases of public disaster), recouping itself from the criminals.

Only then shall we secure a strict reparation of damage, for the State will put in motion its inexorable fiscal machinery, as it now does for the recovery of taxes; and on the other hand the principle of social community of interests will be really admitted and applied, not only against the individual but also for him. For we believe that if the individual ought to be always responsible for the crimes which he commits, he ought also to be always indemnified for the crimes of which he is the victim.

In any case, as the indefinite segregation of the criminal is the fundamental principle of the positive system of social defence against crime, apart from the technical systems of imprisonment and detention, so indemnification as a social function is a second essential principle, apart from the special rules of procedure for carrying it into effect.

These two fundamental principles of the positive system would still be incomplete if they did not come into practical operation according to a general rule, which leads up to the practical organisation of social defence-that is to say, the adaptation of defensive measures to the various criminal types.