There has already been, amongst the same prison experts, a certain retrogressive movement in regard to isolation. Absolute and continued isolation, indeed, both by day and by night ("solitary confinement") was at first recommended, even to the introduction, grotesque in spite of good intentions, of hoods and masks for the prisoners, a mediaeval reminiscence almost parallel with the Brothers of Pity in some Italian towns, for help to the wounded. Presently it was seen that this sort of thing certainly could not a.s.sist in the amendment of the guilty, and then isolation was relaxed (still making it applicable both by day and by night) with visits to prisoners by the chaplain, governors, and representatives of vigilance and prisoners' aid societies. This is called "separate confinement." After this it was recognised that the real need for isolation was at night, and then the Auburn system was arrived at: isolation in cells by night, with daily labour in common, with an obligation (which cannot be enforced) of silence. And finally, seeing that in spite of the threefold panacea of every prison system (isolation, work, and instruction, especially religious instruction) relapses still increased, it was understood that it might not be very useful to subject a man for months or years to the monastic life of Trappist brothers, in these monstrous human hives (which Bentham brought to the notice of the French Const.i.tuent a.s.sembly under the name of "panopticons"), and to discharge him from prison at the end of his term, and plunge him into all the temptations of an atmosphere to which his lungs had become disaccustomed.

Then the "progressive system" was introduced, first in England, where it was devised by Maconochie, next in Ireland, which has given it a name, alternated with that of Sir W. Crofton. This is the most symmetrically perfect machinery, though reminding one somewhat of a company of marionettes. It confirms what was said by Haeckel, that the actual is a summary of the moods of aspiration, for it precisely sums up the systems which preceded it, each of which const.i.tutes a phase of the progressive system. There is first of all a period of brotherly charity-absolute isolation for the prisoner to fall back upon his conscience, or to listen to the voice of remorse, or to receive an impression of devotion and fear. After this comes the Auburnian phase, of isolation by night and labour (when labour is accorded) by day, with the constraint of silence. Then an intermediary period in the agricultural colony or labour-gang outside the prison, like a period of convalescence, to accustom the lungs to the keen air of liberty. This is the phase added by Sir W. Crofton to the English system. Lastly comes the period of conditional release (on ticket of leave), whereby the last portion of the punishment is remitted, and will count as expiated if during the time of liberation, and for a succeeding period, the convict does not commit another crime.

The progressive or retrogressive pa.s.sage from one phase to another is made by a sort of automatic regulator, depending on the number of marks gained or lost by the prisoner through his good or bad behaviour, to which we know the moral or psychological value to be attached-a value purely negative.

This progressive, gradual, or Irish system has obtained a supremacy in Europe, so that even Belgium, the cla.s.sic land of the cellular system, reconsidered the ideas which it had based on daily experience, and was the first continental country to introduce conditional sentences (in 1888), which are the fruit of short sentences and cellular punishments.

I do not deny that this progressive system is better than the others, though we must not forget that the almost miraculous effects of amendment and decrease of recidivism (which indeed are claimed for every new system, only to be disproved later on) were due in Ireland to the wholesale emigration of those conditionally released to North America-an emigration amounting to 46 per cent. of the prisoners released. Nor must we forget that this system, which requires a trained staff of officers, is less difficult to work in countries where, as in Ireland, there are only a few hundred prisoners; but it would be much more difficult in Italy or France, where the prisoners are numbered by tens of thousands. In these countries, accordingly, the system will not be practical unless the principle of cla.s.sifying prisoners in biological and psychological categories is conjoined with it; for without this we shall not get rid of the impersonal system which is the vice of our present penal law, and under which, even in our prison administration, we treat the prisoner as a mere symbol, to which we can apply the three conventional rules of the cell, hard labour, and instruction.

But I am strongly opposed to, or accept simply as accessory (even for the seclusion of prisoners before trial, after the preliminary examination), cellular isolation by itself, which has reached the height of absurdity and inhumanity in cases of imprisonment for life.

As Mancini said in 1876, discussing the draft of the Italian penal code, "the punishment of hard labour for life, which is subst.i.tuted in the draft for the capital sentence, differs substantially in its severity of privation and misery from all other modes of imprisonment. It must be undergone in one or two special prisons to be erected within the country. It would be the saddest and most terrible thing which the imagination of man could conceive. These tombs of the living, whom society has rejected for ever, unlike all other prisons, will condemn their inmates to continuous solitary immurement in cells, and to a life which may be worse than death itself... . This most wretched condition, which the free man cannot realise without horror, is to last ten years; and it is not to be in the power of man to bring it to an end sooner, if the prisoner, broken down by physical weakness, or threatened by loss of reason, cannot endure it any longer."

After this description, I am not sorry that I denounced the cellular system as one of the madnesses of the nineteenth century.

This useless, stupid, inhuman, costly "tomb of the living" must be repudiated, even when reduced to its lowest terms by the new Italian code, wherein Parliament, accepting part of my amendment, fixes the term of absolute seclusion at seven years.

It will be seen by this description of cellular imprisonment that the cla.s.sical criminal and prison experts have logically arrived at the conclusion that perpetual punishment should be abolished; and this renders recidivism possible even in murder. But it is clear that what we ought to abolish is not perpetual separation, but only the stupidly harsh form of isolation in cells-and this not only in life sentences, but in all sentences.

Cellular imprisonment is inhuman, because it blots out or weakens, in the cases of the least degenerate criminals, that social sense which was already feeble in them, and also because it inevitably leads to madness or consumption (by onanism, insufficient movement, air, &c.). Hence it drives the prison authorities, in order to avoid these disastrous consequences, to the injustice of building cells for murderers which are decidedly comfortable, and consequently a mockery of the honest wretchedness of the cottages and garrets of the poor. The treatment of mental diseases recognises a special form of insanity under the name of prison madness.

Cellular imprisonment, in temporary or indefinite sentences, can do nothing for the amendment of the guilty, especially because, when we do not amend the social environment, it is useless to lavish care on our prisoners if, as soon as they quit prison, they must return to the same conditions which led them into crime. No adequate social prevention can in any way be provided by the more or less arcadian devices of the prisoners' aid societies. The chief mistake of the prison experts has been to concentrate their attention exclusively on the cell and in the cell, forgetting the external factors of crime; so that, by a familiar psychological process, the cell has become for prison experts what money is to the avaricious: it has ceased to be a means, and has become an end in itself.

Again, the cellular system is ineffectual because the very isolation which was its original object is incapable of realisation. Prisoners find a thousand means of carrying on communication with each other, during their walks, or by writing on the leaves of books lent to them to read, or by knocking on their walls according to a conventional alphabet, or by writing in the sand, or by using the drains as telephonic receivers, as was done in the cellular prisons of Mazas, Milan, &c. Plain proofs of this may be found in Lombroso's "Les Palimpsestes des Prisons." "The public, and even well-informed persons, honestly believe that the cellular prison is a dumb and paralytic thing, without tongue or hands, simply because the law has ordered silence and inactivity. But as no decree, however vigorous, can counteract the nature of things, so this organism speaks, moves, occasionally wounds or slays, in spite of all the decrees. Only, as always happens when a necessity of humanity is opposed by a law, it acts by less known, underground and hidden means."

Moreover, the cellular system is unequal in its application, for difference of race has much to say to it, and in fact it is a clumsy machinery of the northern races, repugnant to those of the south, more dependent on the open air and light. Apart from that, isolation has very different effects amongst people of the same nation, according to the different vocations of the prisoners, especially of occasional offenders. In this connection the testimony of Faucher, Ferrus, and Tarde is thoroughly just, that in prison administration we ought to observe a distinction between dwellers in town and country.[23]

[23] Yet the question whether the cellular system should be modified in accordance with the nationality, social condition, and s.e.x of criminals, which has not been brought forward since the Prison Congress at Stockholm, was there decided by the following resolution:-"The cellular system, where it is in operation, may be applied without distinction of race, social condition (as regards townsmen or rural population), or s.e.x, provided that the authorities have regard to these special conditions in matters of detail. Exception may be made in respect of the young, and if cellular discipline is applied to them also, it should be in such a way as not to prejudice their physical and moral development." ("Proceedings," 1878, pp. 303, 617.)

Again, the cellular system is too costly to be adopted as the only form of imprisonment-which, however, is enacted in the Italian penal code, the French law of 1875, and elsewhere.

And it is just by reason of the enormous expenditure on vast prisons that the grievous and mischievous contrast arises between the comforts provided for murderers and men guilty of arson in their cells and the privations to which the honest poor are exposed in hospitals, poorhouses, town garrets, country hovels, and barracks. One of the most significant results which I noticed at the exhibition of various plans of cells in connection with the Prison Congress at Rome in 1885 was that it demonstrated to the general public how the cellular system treats prisoners (whether before trial or after sentence) better than the poor, who continue to be honest in spite of their wretchedness.[24]

[24] Even prison experts have been concerned by the vast expense of the cellular system, and the following question was brought forward at the Congress at Rome:-"What modifications would be possible, in accordance with recent experience, in the construction of cellular prisons so as to render it more simple and less costly, without detriment to the necessary conditions of a sound and intelligent application of the system?" Detailed recommendations were agreed to on the motion of M. Herbette; but the system is unchanged, with requirements which can be only very slightly reduced.

In Germany, as well as in France and Italy, legislation has ordained, by codes and special laws, the cellular system for all punishment by imprisonment; but fortunately the system has not yet been adopted, thanks to its enormous cost. So that we have the further absurdity of codes based on prison systems which have no actual existence. And since criminals have their part in the law, not as it is written but as it is carried out, the result is naturally disastrous.

Thus the cellular system bears hard upon the honest cla.s.ses, both by its enormous cost, under the form of taxation, and by compet.i.tion with free and honest labour. The compet.i.tion is moral in the first place, for the criminal is always a.s.sured of daily work, lodgings, and food, whilst the honest workman is a.s.sured of neither. Even the economic compet.i.tion, though not extensive when we take the totals of free workmen and prisoners, is still very keen in particular places and for particular industries, whilst prison labour never indemnifies the State for its expenditure; for clearly with cellular isolation it is impossible to organise important and profitable industry. It is the small industries, such as shoemaking and carpentry, which crush the same free industries all round the prison, for they cannot stand against the artificial compet.i.tion created by the nominal wages of the prison hands. Though for moral and financial reasons the convicts must work, it is evident that on these grounds we cannot accept the cellular system as a pattern of prison organisation.

It is quite sufficient, in prisons for the segregation of criminals, to provide for isolation by night, which requires buildings far more simple and less costly than those of the cellular prisons.

Work in the open air is the only useful basis of organisation for convict prisons.

Air, light, movement, field labour, especially in southern counties and for the majority of prisoners, who are rural-these are the only physical and moral disinfectants possible for prisoners not entirely degenerate, or likely to prevent at least the absolute brutalisation of the incorrigible, by giving them healthy and more remunerative work.

The penal agricultural colony, in lands which need clearing, is the best for adults, pa.s.sing from the least to the most healthy according to the categories of criminals-born, habitual, occasional-and according to the gravity of the crimes committed. To this may be added, for convicts less capable of restoration to social life, labour in mines, especially when the mines are State property. What I have said of malaria I say of fire-damp: it is much better that these should kill off criminals, than honest workmen.

The penal agricultural colony in lands already cultivated is best for children and young people.

This is the ideal and the typical form of segregation for criminals, against whom it would not be sufficient to exact strict reparation of damage, on the principles already set forth.

Wherever there is a crowding of humanity, there is human fermentation and putrefaction. Only labour in the open air will secure physical and moral health. And if agricultural work would be less fitted for criminals from the towns, there is no reason why an agricultural colony should not make itself as far as possible self-sufficing by means of workshops where prisoners could ply the trade to which they were accustomed when at liberty. For town convicts without a trade, such as vagabonds, beggars, and the like, on the ground of their muscular incapacity for hard and regular work, an agricultural colony is still the most fit, for it provides light and varied occupations, as the agricultural colonies of Holland, Belgium, and Austria bear witness.

The same evolution will take place in regard to the segregation of criminals as in regard to the seclusion of the insane; first, hospitals and prisons, with a terrible communion of corruption in both cases; then barrack life, in asylums or penitentiaries, vast and isolated; lastly, for the insane, a system of so-called village asylums, and even a free colony for harmless idiots who can be put to agricultural work and minor trades, as at Gheel in Belgium. Similarly for criminals, the sanitary "elbow room" of agricultural colonies will be subst.i.tuted for the infectious barrack-life of the great prisons.

As for habitual criminals, their anthropological characteristics remind us that we must distinguish between the two crises of their criminal activity, and, as a consequence, between the methods of defence against them. That is to say, we must distinguish between the initial moment at which they commit their first crime and the subsequent period in which they become habitual offenders, recidivists, and even incorrigible.

Thus it is clear that at the initial moment of their criminal career they ought to be subjected to the measures which I am about to indicate for occasional criminals; whereas, when from occasional they have become, partly by their imprisonment, habitual offenders, they must be subjected to the measures already indicated for born criminals. The latter are incorrigible through congenital tendency to degenerate, and the former are incorrigible through acquired tendency; but they end in the same degree of anti-sociality and brutalisation. There is, however, this difference, that habitual offenders nearly always commit less serious crimes, such as theft, swindling, forgery, indecent a.s.sault, whilst the born criminals, though they may be petty thieves, or not very formidable swindlers, are more frequently murderers, footpads, guilty of arson, or the like. Thus the discipline of their segregation must vary accordingly.

For occasional criminals, social defence must have a character of prevention rather than of repression, so as to save them from being driven, by a mistaken prison organisation, to become recidivists, and therefore habitual and incorrigible criminals.

It is especially important in this category to discriminate between the young and the adults, for with the former, far more than with the latter, the preventive methods may have a sensible effect in diminishing crime. But we must take care, in place of the pedantic graduation of responsibility which satisfies the penal codes, to subst.i.tute a physiological and psychical treatment of children and young people, who are actual criminals or framing for crime.

Beginning with the physical and moral treatment of foundling children as one of the most effectual penal subst.i.tutes, and advancing to reformatory constraint and penal sentences upon the young, there is an entire system crying for radical reform, from which imprisonment for young persons should always be excluded. We must therefore abolish the so-called houses of correction; for, taking no account of the absurd and dangerous confusion created by the three cla.s.ses of children committed for paternal correction, for begging and vagrancy, and for offences, no good can ever come of it, for the herding and crowding together are nowhere more productive of fermentation and putrefaction than amongst the young.

There is nothing for them but separate boarding-out with families of honest country folk, or else agricultural colonies with a discipline different from that of the colonies for adult criminals, but still based on the rule of isolation by night, work in the open air, and as little crowding as possible.

For adult occasional criminals it is unnecessary to insist any further on the absurdity and danger of short terms of imprisonment, with or without isolation in cells, which now const.i.tute the almost exclusive mode of repression. A few days in prison, mostly in a.s.sociation with habitual criminals, cannot exercise any deterrent influence, especially in the grotesque minimum of one day, or three days, as provided by the Dutch, Italian, and other codes. On the contrary, they are attended by disastrous effects, by destroying the serious character of justice, relieving prisoners of all fear of punishment, and consequently driving them to relapse, under the influence of the disgrace already suffered, and of the corrupting and compromising a.s.sociation with habitual criminals in prison.

The results of these short terms, indeed, which impose about the same restriction of liberty as an attack of indigestion, or a heavy fall of snow, are so manifest that the objection to them is now almost unanimous, though they still form the basis of the most recent penal codes.

As to the subst.i.tution of other repressive methods in the many cases of sentence for light offences, theorists and legislators have proposed domiciliary arrest, sureties, judicial warnings, compulsory work without imprisonment, conditional suspension of a sentence or a punishment, qualified banishment. For the moment there is a marked preference for conditional sentences.

In my opinion, however, none of these subst.i.tutes or short terms of imprisonment can be applied as effectively or as generally as is necessary for the large cla.s.s of occasional offenders.

Domiciliary arrests, indeed, which the Italian penal code applies only to women and minors for a first contravention of the law, with detention in the house, cannot be made effective. They would be useless for those already obliged to remain at home by their daily occupations, and for the rich, who could have any form of distraction in their own houses; and they would be injurious to those who have to earn a living for themselves and their families in workrooms, shops, offices, &c. Moreover, this domiciliary detention would be very difficult in the great towns, where it would probably require a sentinel for every condemned person.

Bail for good behaviour is too unequal in the case of the poor and the rich, and therefore too rarely applicable to be any more than an exceptional and accessory measure, taken in conjunction with the payment of damages; and this even when it is given by sureties.

Judicial warning, with or without security, which the new Italian penal code has sought to revive, in spite of many years' experience under the older codes, cannot be seriously treated. Either the prisoner is an occasional offender, or an offender through pa.s.sion, having a sense of honour, in which case public opinion is itself a sufficient lesson for him, without the need of a little moral lecture from the judge; or else he has no such moral sensibility, and then the warning is a mere useless ceremony, without effect either on the criminal or on the public. So true is this that judicial warning (a different thing from police warning, which is another so-called preventive measure, both ineffectual and injurious) is rarely applied by magistrates.

Compulsory work without imprisonment may be admitted, not as a main punishment, but as a mode of enforcing strict reparation of damage, which I still believe to be the only suitable measure for occasional offenders, when the offence is slight.

The same must be said for qualified banishment (temporary removal from the place where the crime was committed), which may be added as a preventive measure, and as a satisfaction for the injured party, in the same cases where the payment of damages is the princ.i.p.al retribution.

There remains the conditional sentence. A judge may decide, in the case of first offenders who appear to him to call for such treatment, that the sentence or the execution of the sentence, shall be suspended for a given period, after which, if the offender has been of good behaviour, and has not committed another offence, the sentence is effaced and the condemnation is regarded as non-existent; whilst in the other case the sentence takes effect, and the punishment is added to that of the new crime.

This conditional suspension, however, a.s.sumes two very different forms.

At Boston, in the State of Ma.s.sachusetts, from the year 1870 in the case of minors, and from 1878 in the case of adults, judgment is suspended without regard even to the gravity of the crime or to the antecedents of the criminal; and this custom has applied to the entire State from the year 1880. All that the judge does is to fix the period of probation. There is a probation officer whose business it is to keep his eye on the persons affected, and who has extensive powers, including that of bringing them up for sentence even for disorderly conduct, without waiting for an actual relapse. This system has also been introduced into New Zealand and Australia (1886).

In England, after the advocacy of the probation system by the Howard a.s.sociation, an Act was pa.s.sed in 1887 "to permit the conditional Release of first Offenders in certain cases." This law combines probation with sureties for good conduct. Judgment is given, but sentence is not p.r.o.nounced. The suspension is not granted to any one who has previously committed an offence, or whose first offence would be liable to a punishment exceeding two years' imprisonment. There is no probation officer, for supervision is replaced by personal or other sureties for good behaviour.

On the continent of Europe another form has been adopted. There is no supervision by a special officer, and no surety for good behaviour; judgment is delivered and sentence p.r.o.nounced; and the suspension is not forfeited by disorderly conduct, but only by an actual relapse.

This system, so far as the purpose was not effected by various conditions as to the duration of punishment, which left room for conditional sentences, as to the interval for taking cognisance of relapse, and other details, was proposed in France (1884) by Senator Berenger; but Belgium was the first country to adopt it in the law of 1888 "on conditional release and conditional sentences;" and France followed in 1891, with the law "on the modification and increase of punishments."

Before that time, at the Prison Congresses of London (1872) and Rome (1885), there had been some discussion, without resolutions, on the advisability of subst.i.tuting for punishment with hard labour either simple detention without labour or compulsory labour without imprisonment, or removal from the place where the offence was committed, or judicial admonition.