Project Gutenberg's Etext of Criminal Sociology by Enrico Ferri
This is a preliminary version. The original final release text
has been lost, and we are replacing with this one until we make
another final verion or recover the last one from backup.
Copyright laws are changing all over the world, be sure to check
the copyright laws for your country before posting these files!!
Please take a look at the important information in this header.
We encourage you to keep this file on your own disk, keeping an
electronic path open for the next readers. Do not remove this.
**Welcome To The World of Free Plain Vanilla Electronic Texts**
**Etexts Readable By Both Humans and By Computers, Since 1971**
*These Etexts Prepared By Hundreds of Volunteers and Donations*
Information on contacting Project Gutenberg to get Etexts, and
further information is included below. We need your donations.
Criminal Sociology
by Enrico Ferri
March, 1996 [Etext #477]
Project Gutenberg's Etext of Criminal Sociology by Enrico Ferri
*****This file should be named 477.txt or 477.zip******
We are now trying to release all our books one month in advance
of the official release dates, for time for better editing.
Please note: neither this list nor its contents are final till
midnight of the last day of the month of any such announcement.
The official release date of all Project Gutenberg Etexts is at
Midnight, Central Time, of the last day of the stated month. A
preliminary version may often be posted for suggestion, comment
and editing by those who wish to do so. To be sure you have an
up to date first edition [xxxxx10x.xxx] please check file sizes
in the first week of the next month. Since our ftp program has
a bug in it that scrambles the date [tried to fix and failed] a
look at the file size will have to do, but we will try to see a
new copy has at least one byte more or less.
Information about Project Gutenberg (one page)
We produce about two million dollars for each hour we work. The
fifty hours is one conservative estimate for how long it we take
to get any etext selected, entered, proofread, edited, copyright
searched and analyzed, the copyright letters written, etc. This
projected audience is one hundred million readers. If our value
per text is nominally estimated at one dollar then we produce $2
million dollars per hour this year as we release thirty-two text
files per month: or 400 more Etexts in 1996 for a total of 800.
If these reach just 10% of the computerized population, then the
total should reach 80 billion Etexts.
The Goal of Project Gutenberg is to Give Away One Trillion Etext
Files by the December 31, 2001. [10,000 x 100,000,000=Trillion]
This is ten thousand titles each to one hundred million readers,
which is only 10% of the present number of computer users. 2001
should have at least twice as many computer users as that, so it
will require us reaching less than 5% of the users in 2001.
We need your donations more than ever!
All donations should be made to "Project Gutenberg/IBC", and are
tax deductible to the extent allowable by law ("IBC" is Illinois
Benedictine College). (Subscriptions to our paper newsletter go
to IBC, too)
For these and other matters, please mail to:
Project Gutenberg
P. O. Box 2782
Champaign, IL 61825
When all other email fails try our Michael S. Hart, Executive
Director:
[email protected] (internet) hart@uiucvmd (bitnet)
We would prefer to send you this information by email
(Internet, Bitnet, Compuserve, ATTMAIL or MCImail).
******
If you have an FTP program (or emulator), please
FTP directly to the Project Gutenberg archives:
[Mac users, do NOT point and click. . .type]
ftp uiarchive.cso.uiuc.edu
login: anonymous
password: your@login
cd etext/etext90 through /etext96
or cd etext/articles [get suggest gut for more information]
dir [to see files]
get or mget [to get files. . .set bin for zip files]
GET INDEX?00.GUT
for a list of books
and
GET NEW GUT for general information
and
MGET GUT* for newsletters.
**Information prepared by the Project Gutenberg legal advisor**
(Three Pages)
***START**THE SMALL PRINT!**FOR PUBLIC DOMAIN ETEXTS**START***
Why is this "Small Print!" statement here? You know: lawyers.
They tell us you might sue us if there is something wrong with
your copy of this etext, even if you got it for free from
someone other than us, and even if what's wrong is not our
fault. So, among other things, this "Small Print!" statement
disclaims most of our liability to you. It also tells you how
you can distribute copies of this etext if you want to.
*BEFORE!* YOU USE OR READ THIS ETEXT
By using or reading any part of this PROJECT GUTENBERG-tm
etext, you indicate that you understand, agree to and accept
this "Small Print!" statement. If you do not, you can receive
a refund of the money (if any) you paid for this etext by
sending a request within 30 days of receiving it to the person
you got it from. If you received this etext on a physical
medium (such as a disk), you must return it with your request.
ABOUT PROJECT GUTENBERG-TM ETEXTS
This PROJECT GUTENBERG-tm etext, like most PROJECT GUTENBERG-
tm etexts, is a "public domain" work distributed by Professor
Michael S. Hart through the Project Gutenberg Association at
Illinois Benedictine College (the "Project"). Among other
things, this means that no one owns a United States copyright
on or for this work, so the Project (and you!) can copy and
distribute it in the United States without permission and
without paying copyright royalties. Special rules, set forth
below, apply if you wish to copy and distribute this etext
under the Project's "PROJECT GUTENBERG" trademark.
To create these etexts, the Project expends considerable
efforts to identify, transcribe and proofread public domain
works. Despite these efforts, the Project's etexts and any
medium they may be on may contain "Defects". Among other
things, Defects may take the form of incomplete, inaccurate or
corrupt data, transcription errors, a copyright or other
intellectual property infringement, a defective or damaged
disk or other etext medium, a computer virus, or computer
codes that damage or cannot be read by your equipment.
LIMITED WARRANTY; DISCLAIMER OF DAMAGES
But for the "Right of Replacement or Refund" described below,
[1] the Project (and any other party you may receive this
etext from as a PROJECT GUTENBERG-tm etext) disclaims all
liability to you for damages, costs and expenses, including
legal fees, and [2] YOU HAVE NO REMEDIES FOR NEGLIGENCE OR
UNDER STRICT LIABILITY, OR FOR BREACH OF WARRANTY OR CONTRACT,
INCLUDING BUT NOT LIMITED TO INDIRECT, CONSEQUENTIAL, PUNITIVE
OR INCIDENTAL DAMAGES, EVEN IF YOU GIVE NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES.
If you discover a Defect in this etext within 90 days of
receiving it, you can receive a refund of the money (if any)
you paid for it by sending an explanatory note within that
time to the person you received it from. If you received it
on a physical medium, you must return it with your note, and
such person may choose to alternatively give you a replacement
copy. If you received it electronically, such person may
choose to alternatively give you a second opportunity to
receive it electronically.
THIS ETEXT IS OTHERWISE PROVIDED TO YOU "AS-IS". NO OTHER
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE MADE TO YOU AS
TO THE ETEXT OR ANY MEDIUM IT MAY BE ON, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Some states do not allow disclaimers of implied warranties or
the exclusion or limitation of consequential damages, so the
above disclaimers and exclusions may not apply to you, and you
may have other legal rights.
INDEMNITY
You will indemnify and hold the Project, its directors,
officers, members and agents harmless from all liability, cost
and expense, including legal fees, that arise directly or
indirectly from any of the following that you do or cause:
[1] distribution of this etext, [2] alteration, modification,
or addition to the etext, or [3] any Defect.
DISTRIBUTION UNDER "PROJECT GUTENBERG-tm"
You may distribute copies of this etext electronically, or by
disk, book or any other medium if you either delete this
"Small Print!" and all other references to Project Gutenberg,
or:
[1] Only give exact copies of it. Among other things, this
requires that you do not remove, alter or modify the
etext or this "small print!" statement. You may however,
if you wish, distribute this etext in machine readable
binary, compressed, mark-up, or proprietary form,
including any form resulting from conversion by word pro-
cessing or hypertext software, but only so long as
*EITHER*:
[*] The etext, when displayed, is clearly readable, and
does *not* contain characters other than those
intended by the author of the work, although tilde
(~), asterisk (*) and underline (_) characters may
be used to convey punctuation intended by the
author, and additional characters may be used to
indicate hypertext links; OR
[*] The etext may be readily converted by the reader at
no expense into plain ASCII, EBCDIC or equivalent
form by the program that displays the etext (as is
the case, for instance, with most word processors);
OR
[*] You provide, or agree to also provide on request at
no additional cost, fee or expense, a copy of the
etext in its original plain ASCII form (or in EBCDIC
or other equivalent proprietary form).
[2] Honor the etext refund and replacement provisions of this
"Small Print!" statement.
[3] Pay a trademark license fee to the Project of 20% of the
net profits you derive calculated using the method you
already use to calculate your applicable taxes. If you
don't derive profits, no royalty is due. Royalties are
payable to "Project Gutenberg Association / Illinois
Benedictine College" within the 60 days following each
date you prepare (or were legally required to prepare)
your annual (or equivalent periodic) tax return.
WHAT IF YOU *WANT* TO SEND MONEY EVEN IF YOU DON'T HAVE TO?
The Project gratefully accepts contributions in money, time,
scanning machines, OCR software, public domain etexts, royalty
free copyright licenses, and every other sort of contribution
you can think of. Money should be paid to "Project Gutenberg
Association / Illinois Benedictine College".
*END*THE SMALL PRINT! FOR PUBLIC DOMAIN ETEXTS*Ver.04.29.93*END*
<_'>, , <_!>, <_:>, <_^> "Larsen" eb-11 encodes are present.
"Emphasis" _italics_ have a * mark
comments in curly {brackets}
tables needing work (or probably retyped)--,
,
,
others should be checked as well.
footnotes have been moved to end of paragraph, and sequentially numbered.
Scanned with OmniPage Professional OCR software
donated by Caere Corporation, 1-800-535-7226.
Contact Mike Lough
CRIMINAL SOCIOLOGY
BY
ENRICO FERRI
PROFESSOR OF CRIMINAL LAW
DEPUTY IN THE ITALIAN PARLIMENT, ETC.
PREFACE.
THE following pages are a translation of that portion of Professor
Ferri's volume on Criminal Sociology which is immediately
concerned with the practical problems of criminality. The Report
of the Government committee appointed to inquire into the
treatment of habitual drunkards, the Report of the committee of
inquiry into the best means of identifying habitual criminals, the
revision of the English criminal returns, the Reports of
committees appointed to inquire into the administration of prisons
and the best methods of dealing with habitual offenders, vagrants,
beggars, inebriate and juvenile delinquents, are all evidence of
the fact that the formidable problem of crime is again pressing
its way to the front and demanding re-examination at the hands of
the present generation. The real dimensions of the question, as
Professor Ferri points out, are partially hidden by the
superficial interpretations which are so often placed upon the
returns relating to crime. If the population of prisons or
penitentiaries should happen to be declining, this is immediately
interpreted to mean that crime is
on the decrease. And
yet a cursory examination of the facts is sufficient to show that
a decrease in the prison population is merely the result of
shorter sentences and the substitution of fines or other similar
penalties for imprisonment. If the list of offences for trial
before a judge and jury should exhibit any symptoms of diminution,
this circumstance is immediately seized upon as a proof that the
criminal population is declining, and yet the diminution may
merely arise from the fact that large numbers of cases which used
to be tried before a jury are now dealt with summarily by a
magistrate. In other words, what we witness is a change of
judicial procedure, but not necessarily a decrease of crime.
Again, when it is pointed out that the number of persons for trial
for indictable offences in England and Wales amounted to 53,044 in
1874-8 and 56,472 in 1889-93, we are at a loss to see what colour
these figures give to the statement that there has been a real and
substantial decrease of crime. The increase, it is true, may not
be keeping pace with the growth of the general population, but, as
an eminent judge recently stated from the bench, this is to be
accounted for by the fact that the public is every year becoming
more lenient and more unwilling to prosecute. But an increase of
leniency, however excellent in itself, is not to be confounded
with a decrease of crime. In the study of social phenomena our
paramount duty is to look at facts and not appearances.
But whether criminality is keeping pace with the growth of
population or not it is a problem of great
magnitude all
the same, and it will not be solved, as Professor Ferri points
out, by a mere resort to punishments of greater rigour and
severity. On this matter he is at one with the Scotch
departmental committee appointed to inquire into the best means of
dealing with habitual offenders, vagrants, and juveniles. As far
as the suppression of vagrancy is concerned the members of the
committee are unanimously of opinion that ``the severest
enactments of the general law are futile, and that the best
results have been obtained by the milder provisions of more recent
statutes.'' They also speak of the ``utter inadequacy of the
present system in all the variety of detail which it offers to
deter the habitual offender from a course of life which devolves
the cost of his maintenance on the prison and the poorhouse when
he is not preying directly on the public.'' The committee state
that they have had testimony from a large number of witnesses
supporting the view that ``long sentences of imprisonment effect
no good result,'' and they arrive at the conclusion that to double
the present sentences would not diminish the number of habitual
offenders. In this conclusion they are at one with the views of
the Royal Commission on Penal Servitude, which acquiesced in the
objection to the penal servitude system on the ground that it
``not only fails to reform offenders, but in the case of the less
hardened criminals and especially first offenders produces a
deteriorating effect.'' A similar opinion was recently expressed
by the Prisons Committee presided over by Mr. Herbert Gladstone.
As soon as punishment reaches
a point at which it makes
men worse than they were before, it becomes useless as an
instrument of reformation or social defence.
The proper method of arriving at a more or less satisfactory
solution of the criminal problem is to inquire into the causes
which are producing the criminal population, and to institute
remedies based upon the results of such an inquiry. Professor
Ferri's volume has this object in view. The first chanter, on the
data of Criminal Anthropology, is an inquiry into the individual
conditions which tend to produce criminal habits of mind and
action. The second chapter, on the data of criminal statistics,
is an examination of the adverse social conditions which tend to
drive certain sections of the population into crime. It is
Professor Ferri's contention that the volume of crime will not be
materially diminished by codes of criminal law however skilfully
they may be constructed, but by an amelioration of the adverse
individual and social conditions of the community as a whole.
Crime is a product of these adverse conditions, and the only
effective way of grappling with it is to do away as far as
possible with the causes from which it springs. Although criminal
codes can do comparatively little towards the reduction of crime,
they are absolutely essential for the protection of society.
Accordingly, the last chapter, on Practical Reforms, is intended
to show how criminal law and prison administration may be made
more effective for purposes of social defence.
W. D. M.
CONTENTS.
CHAPTER I.
PAGE
THE DATA OF CRIMINAL ANTHROPOLOGY. . . . . . . . . . . . . . . .1
Origin of Criminal Sociology, 1--Origin of Criminal Anthropology,
4--Methods of Criminal Anthropology, 4--Relation between Criminal
Anthropology and Criminal Sociology, 5--Criminal Anthropology
studies the organic and mental constitution of the criminal, 7--
The criminal skull and brain, 7--Criminal physiognomy, 8--Physical
insensibility among criminals, 9--Criminal heredity, 9--Criminal
psychology, 9--Moral insensibility among criminals, 10--The
criminal mind, 10. II. The data of criminal anthropology only
applies to the habitual or congenital criminal, 11--The occasional
and habitual criminal, 11--Comparison between the criminal and
non-criminal skull, 12--Anomalies in the criminal skull, 12--The
habitual criminal, 13--The crimes of habitual criminals, 14--The
criminal type confined to habitual criminals, 18--The proportion
of habitual criminals in the criminal population, 18--Forms of
habitual criminality, 19--Forms of occasional criminality, 21--
Classification of criminals, 23--Criminal lunatics, 26--Moral
insanity, 26--Born criminals, 28--Criminals by acquired habit,
30--Criminal precocity, 31--Nature of juvenile crime, 32--Relapsed
criminals, 35--Precocity and relapse among criminals, 38--
Criminals of passion, 39--Occasional criminals, 41--Differences
between
PAGE
the occasional and the born criminal, 41--Criminal types shade
into each other, 44--Numbers of several classes of criminals, 46--
Value of a proper classification of criminals, 47--A fourfold
classification, 48.
CHAPTER II.
THE DATA OF CRIMINAL STATISTICS. . . . . . . . . . . . . . . . 51
Value of criminal statistics, 51--The three factors of crime, 52--
Anthropological factors, 53--Physical factors, 53--Social factors,
53--Crime a product of complex conditions, 54--Social conditions
do not explain crime, 55--Effects of temperature on crime, 58--
Crime a result of biological as well as social conditions, 59--The
measures to be taken against crime are of two kinds, preventive
and eliminative, 61--The fluctuations of crime chiefly produced by
social causes, 61--Steadiness of the graver forms of crime, 63--
Effect of judicial procedure on criminal statistics, 64--Crimes
against the person are high when crimes against property are low,
64--Is crime increasing or decreasing? 64--Official optimism in
criminal statistics, 67--Density of population and crime, 73--
Conditions on which the fluctuations of crime depend, 77--
Quetelet's law of the mechanical regularity of crime, 80--The
effect of environment on crime, 81--The effect of punishment on
crime, 82--The value of punishment is over-estimated, 82--
Statistical proofs of this, 86--Biological and sociological
proofs, 92--Crime is diminished by prevention not by repression,
96--Legislators and administrators rely too much on repression,
98--The basis of the belief in punishment, 99--Natural and legal
punishment, 103--The discipline of consequences, 104--The
uncertainty of legal punishment, 105--Want of foresight among
criminals, 105--Penal codes cannot alter invincible tendencies,
106--Force is no remedy, 107--Negative value of punishment, 109.
II. Substitutes for punishment, 110--The elimination of the causes
of crime, 113--Economic remedies for crime, 114--Drink and crime,
116--Drunkenness an effect of bad social conditions, 120--Taxation
of drink, 120--Laws against
PAGE
drink, 121--Social amelioration a substitute for penal law, 121--
Social legislation and crime, 122--Political amelioration as a
preventive of crime, 124--Decentralisation a preventive, 126--
Legal and administrative preventives, 128--Prisoners' Aid
Societies, 130--Education and crime, 130--Popular entertainments
and crime, 131--Physical education as a remedy for crime, 131--To
diminish crime its causes must be eliminated, 132--The aim and
scope of penal substitutes, 134--Difficulty of applying penal
substitutes, 137--Difference between social and police prevention,
139--Limited efficacy of punishment, 140--Summary of conclusions,
141.
CHAPTER III.
PRACTICAL REFORMS. . . . . . . . . . . . . . . . . . . . . . .143
Criminal sociology and penal legislation, 143--Classification
of punishments, 144--The reform of criminal procedure, 145--The
two principles of judicial procedure, 147--Principles
determining the nature of the sentence, 147--Present principles of
penal procedure a reaction against medival abuses, 147--The
``presumption of innocence,'' 148--The verdict of ``Not Proven,''
149--The right of appeal, 151--A second trial, 151--Reparation to
the victims of crime, 152--Need for a Ministry of Justice, 153--
Public and private prosecutors, 154--The growing tendency to drop
criminal charges, 155--The tendency to minimise the official
returns of crime, 156--Roman penal law, 156--Revision of judicial
errors, 158--Reparation to persons wrongly convicted, 158--
Provision of funds for this purpose, 160--Reparation to persons
wrongly prosecuted, 161--Many criminal offences should be tried as
civil offences, 162--The object of a criminal trial, 163. II. The
crime and the criminal, 164--The stages of a criminal trial, 165--
The evidence, 166--Anthropological evidence, 166--The utilisation
of hypnotism, 168--Psychological and psycho-pathological evidence,
168--The credibility of witnesses, 168 Expert evidence, 169--An
advocate of the poor, 172--The judge and his qualifications, 172--
Civil and criminal judges should be distinct functionaries,
173--The student of law should study criminals, 174--Training of
police and prison officers, 174--The status of the criminal judge,
175--The authority of the judge, 176. III. The jury, 177--Origin
of the jury, 178--Advantages of the jury, 179--Defects of the
jury, 180--The jury as a protection to liberty, 182--The jury and
criminal law, 184--Juries untrained and irresponsible, 186--
Numbers fatal to wisdom, 188--Defects of judges, 193--Difference
between the English and Continental jury, 194--Social evolution
and the jury, 196--The jury compared to the electorate, 197--How
to utilise the jury, 198. IV. Existing prison systems a failure,
201--Defects of existing penal systems, 201--The abuse of short
sentences, 202--The growth of recidivism, 203--Garofalo's scheme
of punishments, 204--Von Liszt's scheme of punishments, 206--The
basis of a rational system of punishment, 207--The indeterminate
sentence, 207--Flogging, 210--The indefinite sentence for habitual
offenders, 211--Van Hamel's proposals as to sentences, 212--The
liberation of prisoners on an indefinite sentence, 213--The
supervision of punishment, 213--Conditional release, 215--Good
conduct test in prisons, 216--Police supervision, 216--
Indemnification of the victims Of crime, 217--The duty of the
State towards the victims of crime, 222--Defensive measures must
be adapted to the different classes of criminals, 225--Uniformity
of punishment, 225--The prison staff, 227--Classification of
prisoners, 227--Prison labour, 228. V. Asylums for criminal
lunatics, 230--The treatment of insane criminals, 232--Crime and
madness, 234--Classification of asylums for criminal lunatics,
237--The treatment of born criminals, 238--The death penalty,
239--Extension of the death penalty, 243--Inadequacy of the death
penalty, 245--Imprisonment for life, 246--Transportation, 248--
Labour settlements, 249--Establishments for habitual criminals,
250--Criminal heredity, 251--Incorrigible offenders, 252--
Cumulative sentences, 253--Uncorrected or incorrigible criminals,
254--Cellular prisons, 256--Solitary confinement, 257--The
progressive system of imprisonment, 257--The evils of cellular
imprisonment, 260 --The cell does not secure separation, 262--
Costliness of the cellular system, 263--Labour under the cellular
system, 264--Open-air work the best for prisoners, 265--The
treatment of habitual criminals, 266--The treatment of occasional
criminals, 267--The treatment of young offenders, 268--
Futility of short sentences, 268--Substitutes for short sentences,
269--Compulsory work without imprisonment, 271 --Conditional
sentences, 271--Conditional sentences in Belgium, 273--Conditional
sentences in the United States, 275--Objections to conditional
sentences, 276--When the conditional sentence is legitimate, 282--
The treatment of criminals of passion, 282--Conclusion, 284.
INTRODUCTION.
_THE POSITIVE SCHOOL OF CRIMINAL LAW_.
DURING the past twelve or fourteen years Italy has poured forth a
stream of new ideas on the subject of crime and criminals; and
only the short-sightedness of her enemies or the vanity of her
flatterers can fail to recognise in this stream something more
than the outcome of individual labours.
A new departure in science is a simple phenomenon of nature,
determined in its origin and progress, like all such phenomena, by
conditions of time and place. Attention must be drawn to these
conditions at the outset, for it is only by accurately defining
them that the scientific conscience of the student of sociology is
developed and confirmed.
The experimental philosophy of the latter half of our century,
combined with human biology and psychology, and with the natural
study of human society, had already produced an intellectual
atmosphere decidedly favourable to a practical inquiry into the
criminal manifestations of individual and social life.
To these general conditions must be added the plain and everyday
contrast between the metaphysical perfection of criminal law and
the progressive increase of crime, as well as the contrast between
legal theories of crime and the study of the mental
characteristics of a large number of criminals.
From this point onwards, nothing could be more natural than the
rise of a new school, whose object was to make an experimental
study of social pathology in respect of its criminal symptoms, in
order to bring theories of crime and punishment into harmony with
everyday facts. This is the positive school of criminal law,
whereof the fundamental purpose is to study the natural genesis of
criminality in the criminal, and in the physical and social
conditions of his life, so as to apply the most effectual remedies
to the various causes of crime.
Thus we are not concerned merely with the construction of a theory
of anthropology or psychology, or a system of criminal statistics,
nor merely with the setting of abstract legal theories against
other theories which are still more abstract. Our task is to show
that the basis of every theory concerning the self-defence of the
community against evil-doers must be the observation of the
individual and of society in their criminal activity. In one
word, our task is to construct a criminal sociology.
For, as it seems to me, all that general sociology can do is to
furnish the more ordinary and universal inferences concerning the
life of communities; and upon this canvas the several sciences of
sociology are delineated by the specialised observation of each
distinct order of social facts. In this manner we may
construct a political sociology, an economic sociology, a legal
sociology, by studying the special laws of normal or social
activity amongst human beings, after previously studying the more
general laws of individual and collective existence. And thus we
may construct a criminal sociology, by studying, with such an aim
and by such a method, the abnormal and anti-social actions of
human beings--or, in other words, by studying crime and criminals.
Neither the Romans, great exponents as they were of the civil law,
nor the practical spirits of the Middle Ages, had been able to lay
down a philosophic system of criminal law. It was Beccaria,
influenced far more by sentiment than by scientific precision, who
gave a great impetus to the doctrine of crimes and punishments by
summarising the ideas and sentiments of his age.[1] Out of the
various germs contained in his generous initiative there has been
developed, to his well-deserved credit, the classical school of
criminal law.
[1] Desjardins, in the Introduction to his ``Cahiers des tats
Gnraux en 1789 et la Lgislation Criminelle,'' Paris,
1883, gives a good description of the state of public opinion in
that age. He speaks also of the charges which were brought
against the advocates of the new doctrines concerning crime, that
they upset the moral and social order of things. Nowadays,
charges against the experimental school are cited from these same
advocates; for the revolutionary of yesterday is very often the
conservative of to-day.
This school had, and still has, a practical purpose, namely, to
diminish all punishments, and to abolish a certain number, by a
magnanimous reaction of humanity against the arbitrary harshness
of medival times. It had also, and still has, a method of its
own, namely, to study crime from its first principles, as
an abstract entity dependent upon law.
Here and there since the time of Beccaria another stream of theory
has made itself manifest. Thus there is the correctional school,
which Roeder brought into special prominence not many years ago.
But though it flourished in Germany, less in Italy and France, and
somewhat more in Spain, it had no long existence as an independent
school, for it was only too easily confuted by the close sequence
of inexorable facts. Moreover, it could do no more than oppose a
few humanitarian arguments on the reformation of offenders to the
traditional arguments of the theories of jurisprudence, of
absolute and relative justice, of intimidation, utility, and the
like.
No doubt the principle that punishment ought to have a reforming
effect upon the criminal survives as a rudimentary organ in nearly
all the schools which concern themselves with crime. But this is
only a secondary principle, and as it were the indirect object of
punishment; and besides, the observations of anthropology,
psychology, and criminal statistics have finally disposed of it,
having established the fact that, under any system of punishment,
with the most severe or the most indulgent methods, there are
always certain types of criminals, representing a large number of
individuals, in regard to whom amendment is simply impossible, or
very transitory, on account of their organic and moral
degeneration. Nor must we forget that, since the natural roots of
crime spring not only from the individual organism, but also, in
large measure, from its physical and social environment,
correction of the individual is not sufficient to prevent
relapse if we do not also, to the best of our ability, reform the
social environment. The utility and the duty of reformation none
the less survive, even for the positive school, whenever it is
possible, and for certain classes of criminals; but, as a
fundamental principle of a scientific theory, it has passed away.
Hitherto, then, the classical school stands alone, with varying
shades of opinion, but one and distinct as a method, and as a body
of principles and consequences. And whilst it has achieved its
aim in the most recent penal codes, with a great, and too
frequently an excessive diminution of punishments, so in respect
of theory, in Italy, Germany, and France it has crowned its work
with a series of masterpieces amongst which I will only mention
Carrara's ``Programme of Criminal Law.'' As the author tells us
in one of his later editions, from the <_a!> priori_ principle
that ``crime is a fact dependent upon law, an infraction rather
than an action,'' he deduced--and that by the sheer force of an
admirable logic--a complete symmetrical scheme of legal and
abstract consequences, wherein judges are compelled, whether they
like it or not, to determine the position of every criminal who
comes before them.
But now the classical school, which sprang from the marvellous
little work of Beccaria, has completed its historic cycle. It has
yielded all it could, and writers of the present day who still
cling to it can only recast the old material. The youngest of
them, indeed, are condemned to a sort of Byzantine discussion of
scholastic formulas, and to a sterile process of scientific
rumination.
And meantime, outside our universities and academies, criminality
continues to grow, and the punishments hitherto inflicted, though
they can neither protect nor indemnify the honest, succeed in
corrupting and degrading evil-doers. And whilst our treatises and
codes (which are too often mere treatises cut up into segments)
lose themselves in the fog of their legal abstractions, we feel
more strongly every day, in police courts and at assizes, the
necessity for those biological and sociological studies of crime
and criminals which, when logically directed, can throw light as
nothing else can upon the administration of
the penal law.
CHAPTER I.
THE DATA OF CRIMINAL ANTHROPOLOGY.
THE experimental school of criminal sociology took its original
title from its studies of anthropology; it is still commonly
regarded as little more than a ``criminal anthropology school.''
And though this title no longer corresponds with the development
of the school, which also takes into account and investigates the
data of psychology, statistics, and sociology, it is none the less
true that the most characteristic impetus of the new scientific
movement was due to anthropological studies. This was
conspicuously the case when Lombroso, giving a scientific form to
sundry scattered and fragmentary observations upon criminals,
added fresh life to them by a collection of inquiries which were
not only original but also governed by a distinct idea, and
established the new science of criminal anthropology.
It is possible, of course, to discover a very early origin for
criminal anthropology, as for general anthropology; for, as Pascal
said, man has always been the most wonderful object of study to
himself. For observations on physiognomy in particular we may go
as far backwards as to Plato, and his comparisons of the human
face and character with those
of the brutes, or even to
Aristotle, who still earlier observed the physical and
psychological correspondence between the passions of men and their
facial expression. And after the medival gropings in
chiromancy, metoscopy, podomancy and so forth, one comes to the
seventeenth century studies in physiognomy by the Jesuit
Niquetius, by Cortes, Cardanus, De la Chambre, Della Porta, &c.,
who were precursors of Gall, Spurzheim, and Lavater on one side,
and, on the other, of the modern scientific study of the emotions,
with their expression in face and gesture, conducted by Camper,
Bell, Engel, Burgess, Duchenne, Gratiolet, Piderit, Mantegazza,
Schaffhausen, Schack, Heiment, and above all by Darwin.
With regard to the special observation of criminals, over and
above the limited statements of the old physiognomists and
phrenologists, Lauvergne (1841) in France and Attomyr (1842) in
Germany had accurately applied the theories of Gall to the
examination of convicts; and their works, in spite of certain
exaggerations of phrenology, are still a valuable treasury of
observations in anthropology. In Italy, De Rolandis (1835) had
published his observations on a deceased criminal; in America,
Sampson (1846) had traced the connection between criminality and
cerebral organisation; in Germany, Camper (1854) published a study
on the physiognomy of murderers; and Ave Lallemant (1858-62)
produced a long work on criminals, from the psychological point of
view.
But the science of criminal anthropology, more strictly
speaking, only begins with the observations of English gaol
surgeons and other learned men, such as Forbes Winslow (1854),
Mayhew (1860), Thomson (1870), Wilson (1870), Nicolson (1872),
Maudsley (1873), and with the very notable work of Despine (1868),
which indeed gave rise to the inquiries of Thomson, and which, in
spite of its lack of synthetic treatment and systematic unity, is
still, taken in conjunction with the work of Ave Lallemant, the
most important inquiry in the psychological domain anterior to the
work of Lombroso.
Nevertheless, it was only with the first edition of ``The
Criminal'' (1876) that criminal anthropology asserted itself as an
independent science, distinct from the main trunk of general
anthropology, itself quite recent in its origin, having come into
existence with the works of Daubenton, Blumenbach, Soemmering,
Camper, White, and Pritchard.
The work of Lombroso set out with two original faults: the mistake
of having given undue importance, at any rate apparently, to the
data of craniology and anthropometry, rather than to those of
psychology; and, secondly, that of having mixed up, in the first
two editions, all criminals in a single class. In later editions
these defects were eliminated, Lombroso having adopted the
observation which I made in the first instance, as to the various
anthropological categories of criminals. This does not prevent
certain critics of criminal anthropology from repeating, with a
strange monotony, the venerable objections as to the
``impossibility of distinguishing a criminal from an honest man by
the shape of his skull,'' or of
``measuring human
responsibility in accordance with different craniological
types.''[2]
[2] Vol. ii. of the fourth edition of ``The Criminal'' (1889) is
specially concerned with the epileptic and idiotic criminal
(referred to alcoholism, hysteria, mattoidism) whether occasional
or subject to violent impulse; whilst vol. i. is concerned only
with congenital criminality and moral insanity.
But these original faults in no way obscure the two following
noteworthy facts--that within a few years after the publication of
``The Criminal'' there were published, in Italy and elsewhere, a
whole library of studies in criminal anthropology, and that a new
school has been established, having a distinct method and
scientific developments, which are no longer to be looked for in
the classical school of criminal law.
I.
What, then, is criminal anthropology? And of what nature are its
fundamental data, which lead us up to the general conclusions of
criminal sociology?
If general anthropology is, according to the definition of M. de
Quatrefages, the natural history of man, as zoology is the natural
history of animals, criminal anthropology is but the study of a
single variety of mankind. In other words, it is the natural
history of the criminal man.
Criminal anthropology studies the criminal man in his organic and
psychical constitution, and in his life as related to his physical
and social environment--just as anthropology has done for man in
general, and for the various races of mankind. So that, as
already said, whilst the classical observers of crime study
various offences in their abstract character, on the
assumption that the criminal, apart from particular cases which
are evident and appreciable, is a man of the ordinary type, under
normal conditions of intelligence and feeling, the anthropological
observers of crime, on the other hand, study the criminal first of
all by means of direct observations, in anatomical and
physiological laboratories, in prisons and madhouses, organically
and physically, comparing him with the typical characteristics of
the normal man, as well as with those of the mad and the
degenerate.
Before recounting the general data of criminal anthropology, it is
necessary to lay particular stress upon a remark which I made in
the original edition of this work, but which our opponents have
too frequently ignored.
We must carefully discriminate between the technical value of
anthropological data concerning the criminal man and their
scientific function in criminal sociology.
For the student of criminal anthropology, who builds up the
natural history of the criminal, every characteristic has an
anatomical, or a physiological, or a psychological value in
itself, apart from the sociological conclusions which it may be
possible to draw from it. The technical inquiry into these bio-
psychical characteristics is the special work of this new science
of criminal anthropology.
Now these data, which are the conclusions of the anthropologist,
are but starting-points for the criminal sociologist, from which
he has to reach his legal and social conclusions. Criminal
anthropology is to
criminal sociology, in its scientific
function, what the biological sciences, in description and
experimentation, are to clinical practice.
In other words, the criminal sociologist is not in duty bound to
conduct for himself the inquiries of criminal anthropology, just
as the clinical operator is not bound to be a physiologist or an
anatomist. No doubt the direct observation of criminals is a very
serviceable study, even for the criminal sociologist; but the only
duty of the latter is to base his legal and social inferences upon
the positive data of criminal anthropology for the biological
aspects of crime, and upon statistical data for the influences of
physical and social environment, instead of contenting himself
with mere abstract legal syllogisms.
On the other hand it is clear that sundry questions which have a
direct bearing upon criminal anthropology--as, for instance, in
regard to some particular biological characteristic, or to its
evolutionary significance--have no immediate obligation or value
for criminal sociology, which employs only the fundamental and
most indubitable data of criminal anthropology. So that it is but
a clumsy way of propounding the question to ask, as it is too
frequently asked: ``What connection can there be between the
cephalic index, or the transverse measurement of a murderer's jaw,
and his responsibility for the crime which he has committed?''
The scientific function of the anthropological data is a very
different thing, and the only legitimate question which sociology
can put to anthropology is this:--``Is the criminal, and in what
respects is he, a normal
or an abnormal man? And if he is,
or when he is abnormal, whence is the abnormality derived? Is it
congenital or contracted, capable or incapable of rectification?''
This is all; and yet it is sufficient to enable the student of
crime to arrive at positive conclusions concerning the measures
which society can take in order to defend itself against crime;
whilst he can draw other conclusions from criminal statistics.
As for the principal data hitherto established by criminal
anthropology, whilst we must refer the reader for detailed
information to the works of specialists, we may repeat that this
new science studies the criminal in his organic and in his
psychical constitution, for these are the two inseparable aspects
of human existence.
A beginning has naturally been made with the organic study of the
criminal, both anatomical and physiological, since we must study
the organ before the function, and the physical before the moral.
This, however, has given rise to a host of misconceptions and one-
sided criticisms, which have not yet ceased; for criminal
anthropology has been charged, by such as consider only the most
conspicuous data with narrowing crime down to the mere result of
conformations of the skull or convolutions of the brain. The fact
is that purely morphological observations are but preliminary
steps to the histological and physiological study of the brain,
and of the body as a whole.
As for craniology, especially in regard to the two distinct and
characteristic types of criminals--
murderers and thieves, an
incontestable inferiority has been noted in the shape of the head,
by comparison with normal men, together with a greater frequency
of hereditary and pathological departures from the normal type.
Similarly an examination of the brains of criminals, whilst it
reveals in them an inferiority of form and histological type,
gives also, in a great majority of cases, indications of disease
which were frequently undetected in their lifetime. Thus M.
Dally, who for twenty years past has displayed exceptional acumen
in problems of this kind, said that ``all the criminals who had
been subjected to autopsy (after execution) gave evidence of
cerebral injury.''[3]
[3] In a discussion at the Medico-Psychological Society of Paris;
``Proceedings'' for 1881, i. 93, 266, 280, 483.
Observations of the physiognomy of criminals, which no one will
undervalue who has studied criminals in their lifetime, with
adequate knowledge, as well as other physical inquiries, external
and internal, have shown the existence of remarkable types, from
the greater frequency of the tattooed man to exceptionally
abnormal conditions of the frame and the organs, dating from
birth, together with many forms of contracted disease.
Finally, inquiries of a physiological nature into the reflex
action of the body, and especially into general and specific
sensibility, and sensibility to pain, and into reflex action under
external agencies, conducted with the aid of instruments which
record the results, have shown abnormal conditions, all tending to
physical insensibility, deep-seated and
more or less
absolute, but incontestably different in kind from that which
obtains amongst the average men of the same social classes.
These are organic conditions, it must be at once affirmed, which
account as nothing else can for the undeniable fact of the
hereditary transmission of tendencies to crime, as well as of
predisposition to insanity, to suicide, and to other forms of
degeneration.
The second division of criminal anthropology, which is by far the
more important, with a more direct influence upon criminal
sociology, is the psychological study of the criminal. This
recognition of its greater importance does not prevent our critics
from concentrating their attack upon the organic characterisation
of criminals, in oblivion of the psychological characterisation,
which even in Lombroso's book occupies the larger part of the
text.[4]
[4] A recent example of this infatuation amongst one-sided, and
therefore ineffectual critics is the work of Colajanni,
``Socialism and Criminal Sociology,'' Catania, 1889. In the first
volume, which is devoted to criminal anthropology, out of four
hundred pages of argumentative criticism (which does not prevent
the author from taking our most fundamental conclusions on the
anthropological classification of criminals, and on crime, as
phenomena of psychical atavism), there are only six pages, 227-
232, for the criticism of psychological types.
Criminal psychology presents us with the characteristics which may
be called specially descriptive, such as the slang, the
handwriting, the secret symbols, the literature and art of the
criminal; and on the other hand it makes known to us the
characteristics which, in combination with organic abnormality,
account for the development of crime in the individual. And these
characteristics are grouped
in two psychical and fundamental
abnormalities, namely, moral insensibility and want of foresight.
Moral insensibility, which is decidedly more congenital than
contracted, is either total or partial, and is displayed in
criminals who inflict personal injuries, as much as in others,
with a variety of symptoms which I have recorded elsewhere, and
which are eventually reduced to these conditions of the moral
sense in a large number of criminals--a lack of repugnance to the
idea and execution of the offence, previous to its commission, and
the absence of remorse after committing it.
Outside of these conditions of the moral sense, which is no
special sentiment, but an expression of the entire moral
constitution of the individual, as the temperament is of his
physiological constitution, other sentiments, of selfishness or
even of unselfishness, are not wanting in the majority of
criminals. Hence arise many illusions for superficial observers
of criminal life. But these latter sentiments are either
excessive, as hate, cupidity, vanity and the like, and are thus
stimulants to crime, or else, as with religion, love, honour,
loyalty, and so on, they cease to be forces antagonistic to crime,
because they have no foundation in a normal moral sense.
From this fundamental inferiority of sentiment there follows an
inferiority of intelligence, which, however, does not exclude
certain forms of craftiness, though it tends to inability to
foresee the consequences of crime, far in excess of what is
observed in the average members of the classes of society to which
the several criminals belong.
Thus the psychology of the criminal is summed up in a defective
resistance to criminal tendencies and temptations, due to that
ill-balanced impulsiveness which characterises children and
savages.
II.
I have long been convinced, by my study of works on criminal
anthropology, but especially by direct and continuous observation
from a physiological or a psychological point of view of a large
number of criminals, whether mad or of normal intelligence, that
the data of criminal anthropology are not entirely applicable, in
their complete and essential form, to all who commit crimes. They
are to be confined to a certain number, who may be called
congenital, incorrigible, and habitual criminals. But apart from
these there is a class of occasional criminals, who do not
exhibit, or who exhibit in slighter degrees, the anatomical,
physiological, and psychological characteristics which constitute
the type described by Lombroso as ``the criminal man.''
Before further defining these two main classes of criminals, in
their natural and descriptive characterisation, I must add a
positive demonstration, which can be attested under two distinct
forms--(1) by the results of anthropological observation of
criminals, and (2) by statistics of relapse, and of the
manifestations of crime which anthropologists have hitherto
chiefly studied.
As for organic anomalies, as I cannot here treat
the whole
matter in detail, I will simply reproduce from my study of
homicide a summary of results for a single category of these
anomalies, which a methodical observation of every class of
criminals will carry further and render more precise, as Lombroso
has already shown (see the fourth edition of his work, 1889, p.
273).
Homicides sentenced
To penal To Imprisonment Soldiers
servitude
Persons in whom I detected (346) (363) (711)
No anomaly in the skull 11.9 p. c. 8.2 p. c. 37.2 p. c.
One or two anomalies 47.2 '' 56.6 '' 51.8 ''
Three or four anomalies 30.9 '' 32.6 '' 11 ''
Five or six anomalies 6.7 '' 2.3 '' 0 ''
Seven or more anomalies .3 '' .3 '' 0 ''
That is to say, men with normal skulls were three times as
numerous amongst soldiers as they were amongst criminals; of men
with a noteworthy number of anomalies occurring together (three or
four), there were three times as many amongst criminals as amongst
soldiers; and there was not one soldier amongst those who showed
an extraordinary number (five or more).
This proves to demonstration not only the greater frequency of
anomalous skulls (and the same is true of physiognomical,
physiological, and psychological anomalies) amongst criminals, but
also that amongst these criminals between fifty and sixty per
cent. show very few anomalies, whilst about one-third of the whole
number present a remarkable combination, and one-tenth are normal
in this respect.
Amongst the statistical data exhibiting the primary
characteristics of the majority of criminals, the data connected
with relapsed criminals are especially conspicuous. Though
relapses, like first offences, are partly due to social
conditions, they also have a manifest biological cause, since,
under the operation of the same penal system, there are some
liberated prisoners who relapse and some who do not.
The statistics of relapse are unfortunately very difficult to
collect, on account of differences in the legislation of different
countries, and in the preparation of records, which, even under
the more general adoption of anthropometrical identification,
rarely succeed in preventing the use of fresh names by
professional criminals. So that we may still say, in the words of
one who is a very good judge in this matter, M. Yverns, not
only that ``the Prisons Congress of London (1872) was compelled to
leave various problems undecided for lack of documentary evidence,
and especially the question of relapsed criminals,'' but also that
to this day (1879), ``we find varying results in different
countries, the exact significance of which is not apparent.''
I have, however, published an essay on international statistics of
relapsed criminals, from which I drew the following general
conclusion: that even in prison statistics, which often give
higher totals of relapsed cases than are given by judicial
statistics, because they are more personal, and therefore less
uncertain, we never obtain the full number of relapses, though the
totals given vary from country to country, from district to
district, and from prison to prison. It would be impossible
to state accurately what proportion the numbers given bear to the
actual number; but I am justified in saying, from all the
materials which I have collected and compared in the aforesaid
essay, that the number of relapses in Europe is generally between
50 and 60 per cent., and certainly rather above than below this
limit. Whilst the Italian statistics, for instance, give 14 per
cent. of relapses amongst prisoners sentenced to penal servitude,
I found by experience 37 per cent; out of 346 who admitted to me
that they had relapsed; and, amongst those who had been sentenced
to simple imprisonment, I found 60 per cent. out of 363, in place
of the 33 per cent. recorded in the prison statistics. The
difference may be due to the particular conditions of the prisons
which I visited; but in any case it establishes the inadequacy of
the official figures dealing with relapse.
After this statement of a general fact, which proves, as Lombroso
and Espinas said, that ``the relapsed criminal is the rule rather
than the exception,'' we can proceed to set down the special
proportions of relapse for each particular crime, so as to obtain
an indication of the forms of crime which are most frequently
resorted to by habitual criminals.
For Italy I have found that the highest percentages of relapse are
afforded by persons convicted of theft and petty larceny, forgery,
rape, manslaughter, conspiracy, and, at the correctional courts,
vagrancy and mendicity. The lowest percentages are amongst those
convicted of assault and bodily harm, murders, and infanticide.
For France, where legal statistics are remarkably adapted for the
most minute inquiry, I have drawn up the following table of
statistics from the lists of persons convicted at the assize
courts and correctional tribunals, taking an average of the years
1877-81, which is not sensibly affected by the results of
succeeding years.
It will be seen that the average of relapses for crimes against
the person is higher than the average for the most serious cases
of murderous and indecent assault, which are clearly an outcome of
the most anti-social tendencies (such as parricide, murder, rape,
inflicting bodily harm on parents, &c.). Thus homicide and fatal
wounding, though relapse is very frequent in these cases, still
display a less abnormal and more occasional character by their
lower position in the table, as shown in the cases of infanticide,
concealment of birth, and abandonment of infants. As for the very
frequent occurrence of relapse in special crimes, such as assaults
on officials and resistance to authority, which rarely come before
the assize courts--though even there they tend to support the
higher numbers in the tribunals--these are offences which may also
be committed by criminals of every kind, and which, moreover,
depend in some measure on the social factor of police
organisation, and frequently on the psycho-pathological state of
particular individuals.
The somewhat rare occurrence of relapse in such a grave type of
murder as poisoning is noteworthy. But this is only an effect of
the special psychology of these criminals, as I have explained
elsewhere.
{Table printed in ``landscape'' mode was not OCR'd.}
FRANCE--CASES OF RELAPSE, 1877-81.
Amongst crimes against property, the most frequent relapses are
found in the case of thieves (not including thefts and breaches of
trust by domestic servants, which thus, proving their more
occasional character, confirm the agreement of statistics with
criminal psychology). The same thing is observed in regard to
forgers of commercial documents and to fraudulent bankrupts, who
are partly drawn into crime under the stress of personal or
general crises. And the infrequency of relapse amongst postal
employees condemned for embezzlement, and amongst customs officers
who have been guilty of smuggling, is only a further confirmation
of the inducement to crime by the opportunities met with in each
case, rather than by personal tendencies.
Amongst minor offences, apart from that evasion of supervision
which is no more than a legal condition, there are, both in France
and in Italy, very frequent cases of relapse by vagabonds and
mendicants, which is a consequence of social environment, as well
as of the feeble organisation of the individuals. Other relapses
above the average, included amongst these offences, constitute a
sort of accessory criminality, existing side by side with the
habitual criminality of thieves, murderers, and the like, such as
drunkenness, attacks on public functionaries, infractions of the
regulations of domicile, &c.
In thefts and resistance to authorities, relapse is less frequent
here than in the assize courts, for in the majority of these minor
offences, in their general forms, there is a greater number of
occasional offences, as is also the case with bankruptcies,
defamation,
abuse, rural offences, &c., which demonstrate
their more occasional character by their very low figures.
Hence the statistics of general and specific relapse indirectly
confirm the fact that criminals, as a whole, have no uniform
anthropological type; and that the bio-psychical types and
anomalies belong more especially to the category of habitual
criminals and those born into the criminal class, who, after all,
are the only ones hitherto studied by criminal anthropologists.
What, then, is the numerical proportion of habitual criminals to
the aggregate number of criminals?
In the absence of direct inquiry, it is possible to get at this
proportion indirectly, from facts of two kinds. In the first
place, a study of the works on criminal anthropology supplies us
with an approximate figure, since the biological characteristics
united in individuals, in sufficient number to create a criminal
type, are met with in between forty and fifty per cent. of the
total.
And this conclusion may be confirmed by other data of criminal
statistics.
Whilst the statistics of relapse give us a very limited number of
crimes and offences committed by born and habitual criminals,
science and criminal legislation give us a far more extended
classification.
Ellero reckoned in the penal code of the German Empire 203 crimes
and offences; and I find that the Italian code of 1859 enumerates
about 180, the new code about 200, and the French penal code about
150. Thus the kind of crimes of habitual criminals
would
only be about one-tenth of the complete legal classification of
crimes and offences.
It is easy indeed to suppose that born and habitual criminals do
not generally commit political crimes and offences, nor offences
connected with the press, nor against freedom of worship, nor in
corruption of public functionaries, nor misuse of title or
authority; nor calumny, making false attestations or false
reports; nor adultery, incest, or abduction of minors; nor
infanticide, abortion, or palming of children; nor betrayal of
professional secrets; nor bankruptcy offences, nor damage to
property, nor violation of domicile, nor illegal arrests, nor
duels, nor defamation, nor abuse. I say generally; for, as there
are occasional criminals who commit the offences characteristic of
habitual criminality, such as homicides, robberies, rapes, &c., so
there are born criminals who sometimes commit crimes out of their
ordinary course.
It is now necessary to add a few statistical data in respect of
the classification of crime, which I take, like the others, from
the essay already mentioned.
ITALY. FRANCE. BELGIUM.
HABITUAL CRIMINALITY
(homicide, theft, conspiracy, rape,
incendiarism, vagrancy, swindling, A* B* C* A* B* C* A* B* C*
p.c. p.c. p.c. p.c p.c. p.c. p.c. p.c. p.c.
Proportion of the persons
convicted of these crimes
and offences to the total
number of convictions . . . 84 32 38 90 34 35 86 30 30
{* NOTE: A B and C above are `Assizes,' `Tribunals,' and `Totals,'
respectively. These are printed ``landscape'' fashion in the book.}
That is to say, habitual criminality would be represented, in
Italy, by about 40 per cent. of the total number of condemned
persons, and by somewhat less in France and Belgium. This would
be accounted for in Belgium by the exclusion of vagrancy; but the
difference is virtually due to the greater frequency in Italy of
certain crimes, such as homicide, highway robbery with violence,
and conspiracies.
Further, it is apparent that in all these countries the types of
habitual criminality, with the exception of thefts and vagrancy,
are in greater proportion at the assizes, on account of their
serious character.
The actual totals, however, are larger at the tribunals, for as,
in the scale of animal life, the greatest fecundity belongs to the
lower and smaller forms, so in the criminal scale, the less
serious offences (such as simple theft, swindling, vagrancy, &c.)
are the more numerous. Thus, out of the total of 38 per cent. in
Italy, 32 belong to the tribunals and 6 to the assizes; out of 35
per cent in France, 33 belong to the tribunals and 2 to the
assizes; and out of 30 per cent. in Belgium, 29 belong to the
tribunals and 1 to the assizes. This also is partly accounted for
by legislative distinctions as to the respective jurisdictions of
these courts.
As to the particulars of the totals, it is found that thefts are
the most numerous types in Italy (20 per cent.), in France (24 per
cent.), in Belgium (23 per cent.), and in Prussia (37 per cent.,
including breaches of trust).[5]
[5] Starke, ``Verbrechen und Verbrecher in Preussen,'' Berlin,
1884, p. 92.
After theft, the most numerous in Italy are vagrancy (5 per
cent.), homicides (4 per cent.), swindling (3 per cent.), forgery
(.9 per cent.), rape (.4 per cent.), conspiracy (.4 per cent.),
and incendiarism (.2 per cent.).
In France and Belgium we find the same relative frequency of
vagrancy and swindling; but homicide, incendiarism, and conspiracy
are less frequent, whilst rape is more common in France (.5 per
cent.) and in Belgium (1 per cent.).
Such then are the most frequent forms of habitual criminality in
the generality of condemned persons; and it will be useful now to
contrast the more frequent forms of occasional criminality. For
Italy the only judicial statistics which are valuable for detailed
inquiry are those of 1863, 1869-72. For France, every volume of
the admirable series of criminal statistics may be utilised.
It will be seen that the frequency of these occasional crimes and
offences in Italy and in France is very variable, though assaults
and wounding, resistance to authorities, damage, defamation and
abuse, are the most numerous in both countries.
The proportion of each offence to the total also varies
considerably, not only through a difference of legislation between
Italy and France in regard to poaching, drunkenness, frauds on
refreshment-house keepers, and so forth, but also by reason of the
different condition of individuals and of society in the two
countries. Thus assaults and wounding, which in Italy comprise 23
per cent. of the total of convictions, reach in France no more
than 14 per cent., whilst resistance to the authorities, &c.,
which
YEARLY AVERAGE or CONDEMNED PERSONS.
ITALY, 1863-72. FRANCE 1877-81
CRIMES AND OFFENCES OF GREATEST
FREQUENCY
(not including those of Habitual Criminals).
p.c. p.c. p.c. p.c.
Wilful Assaulf and Wounding ...
Illegally carrying Arms ...... -- 8 7 -- 3 3
Resistance to Authority, Assaults and
Violence against Public Functionaries ... 3 5 4 --2 10 10
Injury to Property ... ... ... -- 2 2 -- I 1-6 1 5
Defamation and Abuse ... ... ... -- s-S 1-6 -- I-6 1 5
Written or Spoken Threats ... ... -- 1 4 1'2 -- '2 --2
Illegal Games ... ... ... ... -- I --8 -- 2 1 'I
Political Crimes and Offences ...... 31.7 -- --2 -- 4 2 --2
Press Crimes and Offences ... ... 4 4 --4 -- --6 --6
Embezzlement, Corruption, Malfeasance
of Public Functionaries -- --3 .3 -- -- --
Escape from Detention --1 --2 2 -- --6 --6
False Witness .. ... ... ... --7 2 --2 09 6 --6
Violation of Domicile ... ... ... -- 17 .15 -- lo --9
Calumny ... --. --1 I 1 --oS --o8
Exposure, Palming or ``Suppression''
of Infants -- --12 1 --2 --1 --1
Bankruptcy Offences ... ... ... I 1 --1 1'3 5 --6
Offences against Religion and Ministers
of Religion -- 1 --1 -- --7 .o7
Duelling ... .. .. ... ... ... -- .04 .03 -- -- --
Abortion ... ... ... ... ... -- -- -- og -- --OI
Offences against the Game Laws -- -- -- -- 13 12-7
Drunkenness -- -- -- -- 1 5 1 5
Offences against Public Decency -- -- -- -- I-8 1.7
Adultery ... ... ... ... ... -- -- -- --5 5
Offences against Morality, with Incitement
to Immorality ... ... -- -- -- -- --2 --2
Involuntary Homicide -- -- -- -- --2 --2
'' Wounding -- -- -- -- --6 --6
'' Incendiarism -- -- -- -- --2 --2
Illegal Practising of Medicine and
Surgery ... ... ... ... ... -- -- -- -- --2 --2
Frauds on Keepers of Refreshment
Houses ... ... ... ... ... -- -- -- -- I-4 1 4
Rural Offences ... ... ... ... -- -- -- -- 6 --6
-- -- m
__________________________________________________________________________
Yeally Average of Convictions,
Gross Totals 6,273 43,584 49,857 3,300 163,997 167,297
[1] Devastation of crops, destruction of fences. [2] Unauthorised gaming
houses; secret lotteries. [3] An exceptional figure, owing to 528 convictions
in 1863, whilst the average of the other years was nine convictions.
[4] Electoral offences.
are 4 per cent. in Italy, touch 9 per cent in France.
Sexual crimes and offences (as we saw in the case of rape), such
as abortion, adultery, indecent assaults, and incitement to
immorality, which in Italy present very small and negligible
figures, are more frequent in France. Whilst the illegal carrying
of arms, threats, false witness, escape from detention, violations
of domicile, calumny, are of greater frequency in Italy than in
France, the contrary is true of bankruptcy offences, political and
press crimes and offences, on account of a manifest difference of
the moral, economic, and social conditions of the two countries,
which are plainly discernible behind these apparently dry figures.
In addition to this demonstration, we have given anthropological
and statistical proofs of the fundamental distinction between
habitual and occasional criminals, which had been pointed out by
many observers, but which had hitherto remained a simple assertion
without manifest consequences.
This same distinction ought to be not only the basis of all
sociological theory concerning crime, but also a point of
departure for other distinctions more precise and complete, which
I set forth in my previous studies on criminals, and which were
subsequently reproduced, with more or less of assent, by all
criminal sociologists.
In the first place, it is necessary to distinguish, amongst
habitual criminals, those who present a conspicuous and clinical
form of mental aberration, which accounts for their anti-social
activity.
In the second place, amongst habitual criminals who are not of
unsound mind, however little the inmates of prisons may have been
observed with adequate ideas and experience, there is a clear
indication of a class of individuals, physically or mentally
abnormal, induced to crime by inborn tendencies, which are
manifest from their birth, and accompanied by symptoms of extreme
moral insensibility. Side by side with these, another class
challenges attention, of individuals who have also been criminals
from childhood, and who continue to be so, but who are in a
special degree a product of physical and social environment, which
has persistently driven them into the criminal life, by their
abandonment before and after the first offence, and which,
especially in the great towns, is very often forced upon them by
the actual incitement of their parents.
Amongst occasional criminals, again, a special category is created
by a kind of exaggeration of the characteristics, mainly
psychological, of the type itself. In the case of all occasional
criminals, the crime is brought about rather by the effects of
environment than by the active tendencies of the individual; but
whilst in most of these individuals the deciding cause is only a
circumstance affecting all alike, with a few it is an exceptional
constraint of passion, a sort of psychological tempest, which
drives them into crime.
Thus, then, the entire body of criminals may be classed in five
categories, which as early as 1880 I described as criminal madmen,
born criminals,
criminals by contracted habits, occasional
criminals, and criminals of passion.
As already observed, criminal anthropology will not finally
establish itself until it has been developed by biological,
psychological, and statistical monographs on each of these
categories, in such a manner as to present their anthropological
characteristics with greater precision than they have hitherto
attained. So far, observers continue to give us the same
characteristics for a large aggregate of criminals, classifying
them according to the form of their crime rather than according to
their bio-social type. In Lombroso's work, for instance, or in
that of Marro (and to some extent even in my work on homicide),
the characteristics are stated for a total, or for legal
categories of criminals, such as murderers, thieves, forgers, and
so on, which include born criminals, occasional and habitual
criminals, and madmen. The result is a certain measure of
inconsistency, according to the predominance of one type or the
other in the aggregate of criminals under observation. This also
contributes to render the conclusions of criminal anthropology
less evident.
Nevertheless, we may sum up the inquiries which have been made up
to the present time; and in particular we may now point out the
general characteristics of the five classes of criminals, in
accordance with my personal experience in the observation of
criminals. It is to be hoped that successive observations of a
more methodical kind will gradually reinforce the accuracy of this
classification of symptoms.
In the first place, it is evident that in a classification not
exclusively biological, if it is to form the anthropological basis
of criminal sociology, criminals of unsound mind must in all
fairness be included.
The usual objection, recently repeated by M. Joly (``Le Crime,''
p. 62), which holds the term ``criminal madness'' to be self-
contradictory, since a madman is not morally responsible, and
therefore cannot be a criminal, is not conclusive. We maintain
that responsibility to society, the only responsibility common to
all criminals, exists also for criminals of unsound mind.
Nor, again, is it correct to say, with M. Bianchi, that mad
criminals should be referred to psychiatry, and not to criminal
anthropology; for, though psychiatry is concerned with mad
criminals in a psycho-pathological sense, this does not prevent
criminal anthropology and sociology from also concerning
themselves with the same subjects, in order to constitute the
natural history of the criminal, and to suggest remedies in the
interest of society.
As for criminals of unsound mind, it is necessary to begin by
placing in a separate category such as cannot, after the studies
of Lombroso and the Italian school of psychiatry, be distinguished
from the born criminals properly so-called. These are the persons
tainted with a form of insanity which is known under various
names, from the ``moral insanity'' of Pritchard to the ``reasoning
madness'' of Verga. Moral insanity, illustrated by the works of
Mendel, Legrand du Saulle, Maudsley, Krafft-Ebing, Savage, Hugues,
Hollander, Tamburini, Bonvecchiato, which, with the lack or
atrophy of the moral or social sense, and of _*apparent_ soundness
of mind, is properly speaking only the essential psychological
condition of the born criminal.
Beyond these morally insane people, who are very rare--for, as
Krafft-Ebing and Lombroso have pointed out, they are found more
frequently in prisons than in mad-houses--there is the unhappily
large body of persons tainted by a common and clinical form of
mental alienation, all of whom are apt to become criminal.
The whole of these criminals of unsound mind cannot be included in
a single category; and such, indeed, is the opinion expressed by
Lombroso, in the second volume of the fourth edition of his work,
after his descriptive analysis of the chief forms of mental
alienation. As a matter of fact, not only are the organic, and
especially the psychological, characteristics of criminal madmen
sometimes identical with and sometimes opposed to those of born
and occasional criminals, but these very characteristics vary
considerably between the different forms of mental alienation, in
spite of the identity of the crime committed.
It is further to be observed, in respect of criminal madmen, that
this category also includes all the intermediary types between
complete madness and a rational condition, who remain in what
Maudsley has called the ``middle zone.'' The most frequent
varieties in the criminality of these partially insane persons, or
``mattodes,'' are the perpetrators of attacks upon
statesmen, who are generally men with a grievance, irascible men,
writers of insane documents, and the like, such as Passanante,
Guiteau, and Maclean.
In the same category are those who commit terrible crimes without
motive, and who nevertheless, according to the complacent
psychology of the classical school, would be credited with a
maximum of moral soundness.
Again, there are the necrophiles, like Sergeant Bertrand, Verzeni,
Menesclou, and very probably the undetected ``Jack the Ripper'' of
London, who are tainted with a form of sexual psychopathy. Yet
again there are such as are tainted with hereditary madness, and
especially the epileptics and epileptoids, who may also be
assigned to the class of born criminals, according to the
plausible hypothesis of Lombroso as to the fundamental identity of
congenital criminality, moral madness, and epilepsy. I have
always found in my own experience that outrageous murders, not to
be explained according to the ordinary psychology of criminals,
are accompanied by psychical epilepsy, or larvea.
Born or instinctive criminals are those who most frequently
present the organic and psychological characteristics established
by criminal anthropology. These are either savage or brutal men,
or crafty and idle, who draw no distinction between homicide,
robbery or other kinds of crime, and honest industry. ``They are
criminals just as others are good workingmen,'' says Frgier;
and, as Romagnosi put it, actual punishment affects them
much less than the menace of punishment, or does not affect them
at all, since they regard imprisonment as a natural risk of their
occupation, as masons regard the fall of a roof, or as miners
regard fire-damp. ``They do not suffer in prison. They are like
a painter in his studio, dreaming of their next masterpiece. They
are on good terms with their gaolers, and even know how to make
themselves useful.''[5]
[5] Moreau, ``Souvenirs de la petite et grande Roquette,'' Paris,
1884, ii. 440.
The born criminals and the occasional criminals constitute the
majority of the characteristic and diverse types of homicide and
thief. Prison governors call them ``gaol-birds.'' They pass on
from the police to the judge and to the prison, and from the
prison to the police and to the judge, with a regularity which has
not yet impaired the faith of law-makers in the efficacy of
punishment as a cure for crime.[6]
[6] Wayland, ``The Incorrigible,'' in the _Journal of Mental
Science_, 1888. Sichart, ``Criminal Incorrigibles.''
No doubt the idea of a born criminal is a direct challenge to the
traditional belief that the conduct of every man is the outcome of
his free will, or at most of his lack of education rather than of
his original physio-psychical constitution. But, in the first
place, even public opinion, when not prejudiced in favour of the
so-called consequences of irresponsibility, recognises in many
familiar and everyday cases that there are criminals who, without
being mad, are still not as ordinary men; and the reporters call
them ``human tigers,'' ``brutes,'' and the like. And in the
second place, the scientific proofs of these hereditary
tenden
cies to crime, even apart from the clinical forms of
mental alienation, are now so numerous that it is useless to
insist upon them further.
The third class is that of the criminals whom, after my prison
experience, I have called criminals by contracted habit. These
are they who, not presenting the anthropological characteristics
of the born criminals, or presenting them but slightly, commit
their first crime most commonly in youth, or even in childhood--
almost invariably a crime against property, and far more through
moral weakness, induced by circumstances and a corrupting
environment, than through inborn and active tendencies. After
this, as M. Joly observes, either they are led on by the impunity
of their first offences, or, more decisively, prison associations
debilitate and corrupt them, morally and physically, the cell
degrades them, alcoholism renders them stupid and subject to
impulse, and they continually fall back into crime, and become
chronically prone to it. And society, which thus abandons them,
before and after they leave their prison, to wretchedness,
idleness, and temptations, gives them no assistance in their
struggle to gain an honest livelihood, even when it does not
thrust them back into crime by harassing police regulations, which
prevent them from finding or keeping honest employment.[7]
[7] Fliche, ``Comment en devient Criminel,'' Paris, 1886.
Of those criminals who begin by being occasional criminals, and
end, after progressive degeneration, by exhibiting the features of
the born criminals, Thomas More said, ``What is this but to make
thieves for the
pleasure of hanging them?'' And it is just
this class of criminals whom measures of social prevention might
reduce to a minimum, for by abolishing the causes we abolish the
effects.
Apart from their organic and psychological characteristics, innate
or acquired, there are two bio-sociological symptoms which seem to
me to be common, though for distinct reasons, to born criminals
and habitual criminals. I mean precocity and relapse. The
occasional crime and the crime of passion do not, as a rule, occur
before manhood, and rarely or never lead to relapse.
Here are a few figures concerning precocity, derived from
international prison statistics:--
PRISONERS UNDER 20 YEARS OF AGE. Male. Female.
__________________________________________________________________
p.c. p.c.
Italy (1871--6) ... ... ... ... ... ... ... 8.8 6.8
France ('72-5) ... ... ... ... ... ... ... 10 7.6
Prussia ('71-7--not over 19 years) ... ... ... 2.8 2.6
Austria ('72-5) ... ... ... ... ... ... ... 9.6 10.6
Hungary ('72-6) ... ... ... ... ... ... ... 4.2 9
England ('72-7 )--not over 24) ... ... ... ... 27.4 14.8
Scotland ('72-7) ... ... ... ... ... ... ... 20 7.8
Ireland ('72-7) ... ... ... ... ... ... ... 9 3.2
Belgium ('74-5) ... ... ... ... ... ... ... 20.8 ---
Holland ('72-7) ... ... ... ... ... ... ... 22.8 3.7
Sweden ('73-7) ... ... ... ... ... ... ... 19.7 17
Switzerland ('74) ... ... ... ... ... ... ... 6.6 7
Denmark ('74-5) ... ... ... ... ... ... ... 9.9 9.6
----------------------------------------------------------------
More recent figures show that the yearly average in France, for
1876-80, out of 4,374 persons brought to trial, was 1 per cent.
under sixteen years of age, and 17 per cent. between sixteen and
twenty-one;
whilst in 1886 the same percentages were .60 and
14. Out of 146,217 accused before the tribunals there were 4 per
cent. under sixteen, and 14 per cent. between sixteen and twenty-
one. Out of 25,135 females there were 4 per cent. under sixteen,
and 11 per cent. between sixteen and twenty-one; whilst in 1886
the percentages were 3 and 14 of males, 2.5 and 14 of females.
In Prussia, of persons accused of crimes and offences in 1860-70,
4 per cent. were under eighteen years.
In Germany, of persons condemned in 1886, 3 per cent. were between
twelve and fifteen, 6 per cent. between fifteen and eighteen, and
16 per cent. between eighteen and twenty-one years.
In Italy, out of 5,189 persons condemned at the assizes in 1887, 3
per cent. were between fourteen and eighteen, and 12 per cent.
between eighteen and twenty-one. Out of 65,624 tried before the
tribunals, 1.2 per cent. were under fourteen, 5 per cent. were
between fourteen and eighteen, and 13 per cent. between eighteen
and twenty-one. There is a continual increase of precocious
criminals in Italy. Prisoners condemned at the assizes under the
age of twenty-one stood at 15 per cent. from 1880 to 1887, whilst
those of a similar age who were tried before the tribunals rose
from 17 to 20 per cent.
To these numerical data may be added others of a qualificative
character, showing that precocity is most frequent in respect of
the natural crimes and offences which are usually observed amongst
born and habitual criminals.
In France the younger prisoners in 1882 had been sentenced in the
following proportions:--
Male. Female.
For murder and poisoning ... ... 0.9 per cent. .5 per cent.
'' homicide, assaults, and wounding 1.6 '' 1.5 ''
'' incendiarism... ... ... ... 1.8 '' 2 ''
'' indecent assault ... ... ... 3.5 '' 11.8 ''
'' specified thefts, forgery, uttering
false coin ... ... ... ... 5.2 '' 2.4 ''
'' simple theft, swindling ... 60.8 '' 49.7 ''
'' mendicity and vagrancy ... 23 '' 20.5 ''
'' other crimes and offences ... 2.7 '' 8 ''
'' defiance of parents ... ... 1 '' 10.5 ''
These figures, showing a greater frequency amongst females of
precocious crimes against the person, and amongst males against
property, are approximately repeated in Switzerland, where young
prisoners in 1870-74 had been sentenced in these proportions:--
For crimes and offences against the person ... 12.1 per cent.
'' '' '' morality ... 5.7 ''
'' incendiarism... ... ... ... ... ... ... 4.3 ''
'' theft ... ... ... ... ... ... ... ... 65.5 ''
'' swindling ... ... ... ... ... ... ... 5.4 ''
'' forgery ... ... ... ... ... ... ... 1.9 ''
'' vagrancy ... ... ... ... ... ... ... 4.6 ''
The judicial statistics of France and Italy give these
proportions:--
{FIX THIS TABLE!}
ITALY--1866. FRANCE--1886
ASSIZE COURTS
Under 14--18. 28--21. Under j l6--2
Homicide ... ... ... ... p.c. p.c. p.c. p.c. p.c.
Murder(and robbery with homicide) 14 I i 10 3 7 6
Parricide ...... ... ... ... -- 5 --8 7 5 9
Infanticide ... ... ... ... -- I --4 -- 6
Imprisonment ... ... ... ... -- -- --
Wilful wounding (followed by death) -- 19 24 -- 3 S
Abortion ...... ... ... ... -- -- -- 1-I
Rape and indecent assault on adults} -- 1'2
'' '' children} -- lo 7 t 3 7 11
Resistance to and attacks on public
functionaries ... ... ... --5 --6 -- 3
Incendiarism -- -- --2 3-7 3 1
False money .. .. .. . 14 -- I 3-7 2 5
Forgery in public and private docu-
ments ...... ... ... ... -- 5 --2 -- 2 --1
Extortion, highway robbery with
violence ... ... ... ... 14 9 7 -- 3w 6
Specified and simple theft ... 14 19 16 41 51
Unintentional wounding ... 28 5 2 -- --
----------------------------------------------------------------
Total of condemned and accused 7 179 475 27 641
The French statistics for the tribunals--no complete Italian
statistics being available, are as follows:--
FRANCE--1886. CORRECTIONAL TRIBUNALS.
le. Female.
Offences. Underl6. I6--21 Underl6.1 16--21
per cenl. Per cenc. per cent. per cent.
Resistance to authorities ... ... 2 2 2 'I 1 1
Assaults on public functionaries --8 5 --7 4 1
Vagrancy ... ... .-- 4 4 11 2 3 2 S'S
Mendicity ... ... ... 4 8 4 12'- 3 6
wilful wounding ... ... ... 5 1 18-5 3@0 11
Unintentional wounding ... 8 7 I
Offences against public decency .. 1 6 1 8 3 1 3 >
Defamation and abuse - I '2 1 1 1 0
Theft ... ... ... ... ... 57 5 a--4 63 54 3
Frauds on refreshment-house keepers --I 2 I --I 6
Swindling 5 1 2 2.4 3 +2
Breach of confidence ... ... 9 1 3 7 1 2
Injury to crops and plants ... 5 --3 --3 5
Game-law offences .. ... .-- 15 1 14 2 1 l --2
----------------------------------------------------------------
Total of accused
Here we have a statistical demonstration of a more frequent
precocity, amongst various forms of criminality, in respect of
inborn tendencies (murder and homicide, rape, incendiarism,
specific thefts), or in respect of tendencies contracted by habit
(simple theft, mendicity, vagrancy).
Also this characteristic of precocity is accompanied by that of
relapse, which accordingly we have seen to be more frequent in the
same forms of natural criminality, and which we can now tabulate
in respect of its persistency in these born and habitual
criminals.
It has been well said that the large number of relapsed persons
who are brought to trial year after year proves that thieves ply
their trade as a regular calling; the thief who has once tasted
prison life is sure to return to it.[8] And again, there are very
few cases in which a man or a woman who has turned thief ceases to
be one. Whatever the reason may be, as a matter of fact the thief
is rarely or never reformed. When you can turn an old thief into
an honest worker, you may turn an old fox into a house dog.[9]
[8] _Quarterly Review_, 1871, ``The London Police.''
[9] Thomson, ``The Psychology of Criminals,'' _Journal of Mental
Science_, 1870.
We must, however, read these testimonies of practical men, which
could easily be multiplied, in the light of our distinction
between incorrigible criminals, who are so from their birth, and
such as are made incorrigible by the effect of their prison and
social environment. The former could scarcely be reduced in
number, whilst the latter could be
considerably diminished
by the penal alternatives of which I will speak later.
The following statistics of relapse are quoted from Yverns,
``La Rcidive en Europe'' (Paris, 1874):--
FRANCE--1826-74. ITALY--1870.
Relapses ENGLAND--1871. SWEDEN--1871. Accused Accused
Prisoners. Thieves. and brought and brought
to trial. to trial.
Once ... ... 38 per cent. 54 per cent. 45 per cent. 60 per cent.
Twice ... 18 '' 28 '' 20 '' 30 ''
Three times... 44 '' 18 '' 35 '' 10 ''
In Prussia (1878-82), 17 per cent. had relapsed once, 16 per cent.
twice, 16 per cent. three times, 13 per cent. four times, 10 per
cent five times, and 28 per cent. six times or oftener.[10]
[10] Starke, ``Verbrechen und Verbrecher,'' Berlin, 1884, p. 229.
At the Prisons Congress of Stockholm the following figures were
given for Scotland. Out of a total of forty-nine relapsed
prisoners, 16 per cent. had relapsed once, 13 per cent. twice or
three times, 6 per cent. four or five times, 6 per cent. from six
to ten times, 5 per cent. from ten to twenty times, 4 per cent.
from twenty to fifty times, and 1 per cent. more than fifty times.
At the meeting of the Social Science Congress, held at Liverpool,
in 1876, Mr. Nugent stated that upwards of 4,107 women had
relapsed four times or oftener, and that many of them were classed
as incorrigible, having been convicted twenty; forty, or fifty
times, whilst one had been convicted 130 times.
The judicial statistics of Italy for 1887 give the following
results:--
ITALY--Convicted, per cent.
Relapses.
Justices of Tribunals. Assizes.
Peace.
Once ... ... ... ... 57 42 50
Two to five times ... 34 40 40
More than five times ... 9 18 10
--------------------------------------------------------
Actual totals of relapses 27,068 16,240 1,870
I have found from my inquiries amongst 346 condemned to penal
servitude and 353 prisoners from the correctional tribunals the
following percentages:--
Relapsed. Convicts Imprisoned.
Once ... ... 83.2 ... ... 26
Twice ... ... 12.5 ... ... 16.5
3 times ... ... 3.1 ... ... ... 14.6
4 '' ... ... -- ... ... ... 10.8
5 '' ... ... 6.8 ... ... ... 6.6
6 '' ... ... -- ... ... ... 5.2
7 '' ... ... 1.6 ... ... ... 7.1
8 '' ... ... -- ... ... ... 2.8
9 '' ... ... -- ... ... ... 2.8
10 '' ... ... -- ... ... ... 2.3
11 '' ... ... -- ... ... ... .9
12 '' ... ... -- ... ... ... .5
13 '' ... ... -- ... ... ... .9
14 '' ... ... -- ... ... ... 1.4
15 '' ... ... -- ... ... ... .9
20 '' ... ... -- ... ... ... .5
------------------------------------------------
Actual totals of relapses 128 212
Chronic relapse is naturally less frequent in the case of those
condemned to long terms; but it is a conspicuous symptom of
individual and social pathology in the two classes of born and
habitual criminals.
Lombroso, in the second volume of his work on ``The Criminal,''
denies that precocity and relapse are characteristics
distinguishing born and habitual from occasional criminals. But
it is only a question of terms. He considers that born and
habitual criminals confine themselves almost exclusively to
serious crime, and occasional criminals to minor offences. And as
the figures which I have given show that precocity and relapse are
even more frequent for minor offences than for crimes, he thinks
that they contradict instead of confirming my conclusions.
The mere seriousness of an act cannot by any means divide the
categories of criminals; for homicide as well as theft, assault
and battery as well as forgery, may be committed, though in
different psychological and social conditions, as easily by born
and habitual criminals as by occasional criminals and criminals of
passion.
Moreover, the figures which I have given show that precocity and
relapse are more frequent in the forms of criminality which, apart
from their gravity, are the common practices of born and habitual
criminals, such as murder, homicide, robbery, rape, &c., whilst
they are far more uncommon, even if they can be said to be
observed at all, in the case of the crimes and offences usually
committed by occasional criminals, such as infanticide, and
certain of the offences mentioned above.
It remains to say something of the occasional criminals, and the
criminals of passion.
The latter are but a variety of the occasional criminals, but
their characteristics are so specific that they may be very
readily distinguished. In fact Lombroso, in his second edition,
supplementing the observations of Despine and Bittinger, separated
them from other criminals, and classified them according to their
symptoms. I need only summarise his observations.
In the first place, the criminals who constitute the strongly
marked class of criminals by irresistible impulse are very rare,
and their crimes are almost invariably against the person. Thus,
out of 71 criminals of passion inquired into by Lombroso, 69 were
homicides, 6 had in addition been convicted of theft, 3 of
incendiarism, and 1 of rape.
It may be shown that they number about 5 per cent. of crimes
against the person.
They are as a rule persons of previous good behaviour, sanguine or
nervous by temperament, of excessive sensibility, unlike born or
habitual criminals, and they are often of a neurotic or epileptoid
temperament, of which their crimes may be, strictly speaking, an
unrecognised consequence.
Frequently they transgress in their youth, especially in the case
of women, under stress of a passion which suddenly spurns
constraint, like anger, or outraged love, or injured honour. They
are highly emotional before, during, or after the crime, which
they do not commit treacherously, but openly, and often by ill-
chosen methods, the first that present themselves. Now and then,
however, one encounters criminals of passion who premeditate a
crime, and
carry it out treacherously, either by reason of
their colder and less impulsive temperament, or as the outcome of
preconceived ideas or a widespread sentiment, in cases where we
have to do with a popular form of lawlessness, such as the
vendetta.
This is why the test of premeditation has no absolute value in
criminal psychology, as a distinction between the born criminal
and the criminal of passion; for premeditation depends especially
on the temperament of the individual, and is exemplified in crimes
committed by both anthropological types.
Amongst other symptoms of the criminal of passion, there is also
the precise motive which leads to a crime complete in itself, and
never as a means of attaining another criminal purpose.
These offenders immediately acknowledge their crime, with
unassumed remorse, frequently so keen that they instantly commit,
or attempt to commit suicide. When convicted--as they seldom are
by a jury--they are always repentant prisoners, and amend their
lives, or do not become degraded, so that in this way they
encourage superficial observers to affirm as a general fact, and
one possible in all circumstances, that ameliorative effect of
imprisonment which is really a mere illusion in the case of the
far more numerous classes of born and habitual criminals.
In these same offenders we very rarely observe, if at all, the
organic anomalies which create a criminal type. And even the
psychological characteristics are much slighter in countries where
certain crimes of
passion are endemic, almost ranking
amongst the customs of the community, like the homicides which
occur in Corsica and Sardinia for the vindication of honour, or
the political assassinations in Russia and Ireland.
The last class is that of occasional criminals, who without any
inborn and active tendency to crime lapse into crime at an early
age through the temptation of their personal condition, and of
their physical and social environment, and who do not lapse into
it, or do not relapse, if these temptations disappear.
Thus they commit those crimes and offences which do not indicate
natural criminality, or else crimes and offences against person or
property, but under personal and social conditions altogether
different from those in which they are committed by born and
habitual criminals.
There is no doubt that, even with the occasional criminal, some of
the causes which lead him into crime belong to the anthropological
class; for external causes would not suffice without individual
predispositions. For instance, during a scarcity or a hard
winter, not all of those who experience privation have recourse to
theft, but some prefer to endure want, however undeserved, without
ceasing to be honest, whilst others are at the utmost driven to
beg their food; and amongst those who yield to the suggestion of
crime, some stop short at simple theft, whilst others go as far as
robbery with violence.
But the true difference between the born and the occasional
criminal is that, with the former, the
external cause is
less operative than the internal tendency, because this tendency
possesses, as it were, a centrifugal force, driving the individual
to commit crime, whilst, for the occasional criminal, it is rather
a case of feeble power of resistance against external causes, to
which most of the inducement to crime is due.
The casual provocation of crime in the born criminal is generally
the outcome of an instinct or tendency already existing, and far
more of a pretext than an occasion of crime. With the occasional
criminal, on the other hand, it is the casual provocation which
matures, no doubt in a favouring soil, the growth of criminal
tendencies not previously developed.
For this reason Lombroso calls the occasional criminals
``criminaloids,'' in order to show precisely that they have a
distinctly abnormal constitution, though in a less degree than the
born criminals, just as we have the metal and the metalloid, the
epileptic and the epileptoid.
And this, again, is the reason why Lombroso's criticisms on my
description of occasional criminals are lacking in force. He
says, as Benedikt said at the Congress at Rome, that all criminals
are criminals by birth, so that there is no such thing as an
occasional criminal, in the sense of a _*normal_ individual
casually launched into crime. But I have not, any more than
Garofalo, drawn such a picture of the occasional criminal, for as
a matter of fact I have said precisely the opposite, as indeed
Lombroso himself acknowledges a little further on (ii. 422),
namely, that between the born and the occasional criminal
there is only a difference of degree and modality, as in all the
criminal classes.
To cite a few details of criminal psychology, it may be stated
that of the two physiological conditions of crime, moral
insensibility and improvidence, occasional crime is especially due
to the latter, and inborn and habitual crime to the former. With
the born criminal it is, above all, the lack or the weakness of
moral sense which fails to withstand crime, whereas with the
occasional criminal the moral sense is almost normal, but
inability to realise beforehand the consequences of his act causes
him to yield to external influences.
Every man, however pure and honest he may be, is conscious now and
then of a transitory notion of some dishonest or criminal action.
But with the honest man, exactly because he is physically and
morally normal, this notion of crime, which simultaneously summons
up the idea of its grievous consequences, glances off the surface
of the normal conscience, and is a mere flash without the thunder.
With the man who is less normal and has less forethought, the
notion dwells, resists the weak repulsion of a not too vigorous
moral sense, and finally prevails; for, as Victor Hugo says,
``Face to face with duty, to hesitate is to be lost.''[11]
[11] For instance, I will recall a fact which Morel has related of
himself, how one day, as he was crossing a bridge in Paris, he saw
a working-man gazing into the water, and a homicidal idea flashed
across his mind, so that he had to hurry away, for fear of
yielding to the temptation to throw the man into the water.
Again, there is the case of Humboldt's nurse, who was attacked one
day by the temptation to kill her charge, and ran with him to his
mother in order to avoid a
disaster. Brierre de Boismont
also tells us of a learned man who, at the sight of a picture in a
public gallery, was tempted to cut the canvas, and ran away from
his impulse to crime.
The criminal of passion is one who is strong enough to resist
ordinary temptations of no exceptional force, to which the
occasional criminal would yield, but who does not resist
psychological storms which indeed are sometimes actually
irresistible.
The forms of occasional criminality, which are determined by these
ordinary temptations, are also determined by age, sex, poverty,
worldly influences, influences of moral environment, alcoholism,
personal surroundings, and imitation. Tarde has ably demonstrated
the persistent influence of these conditions on the actions of
men.
In this connection, Lombroso has drawn a clear distinction between
two varieties of occasional criminals: the ``pseudo-criminals,''
or normal human beings who commit involuntary offences, or
offences which do not spring from perversity, and do not hurt
society, though they are punishable by law, and ``criminaloids,''
who commit ordinary offences, but differ from true criminals for
the reasons already given.
A final observation is necessary in regard to this anthropological
classification of criminals, and it meets various objections
raised by our syllogistic critics. The difference existing
amongst the five categories is only one of degree, and depends
upon their organic and psychological types, and upon the influence
of physical and social environment.
In every natural classification the differences
between
various groups and varieties are never anything but relative.
This deprives them of none of their theoretical and practical
importance, and so it is with this anthropological classification
of criminals.
It follows that, as in natural history we advance by degrees and
shades from the inorganic to the organic creation, life beginning
in the mineral domain with the laws of crystallisation, so in
criminal anthropology we pass by degrees and shades from the mad
to the born criminal, through the links of moral madmen and
epileptics; and from the born criminal to the occasional, through
the link of the habitual criminal, who begins by being an
occasional criminal, and ends by acquiring and transmitting to his
children the characteristics of the born criminal. And finally,
we pass from the occasional criminal to the criminal of passion,
who is but a species of the other, and who further, with his
neurotic and epileptoid temperament, not infrequently approximates
to the criminal of unsound mind.
Thus in our everyday life, as in science, we very often find
intermediate types, for complete and unmixed types are always the
most uncommon. And whilst legislators and judges, in their
complacent psychology, exact and establish marked lines of
cleavage between the sane and the insane criminal, experts in
psychiatry and anthropology are often constrained to place a
prisoner somewhere between the mad and the born criminal, or
between the occasional criminal and the normal man.
But it is evident that even when a criminal cannot be classed
precisely in one or the other category, and
stands between
the two, this is in itself a sufficiently definite classification,
especially from a sociological point of view. There is
consequently no weight in the objection of those who, basing their
argument on an abstract and nebulous idea of the criminal in
general, and judging him merely according to the crime which has
been committed, without knowing his personal characteristics and
the circumstances of his environment, affirm that criminal
anthropology cannot classify all who are detained and accused.
In my experience, however, as a counsel and as an observer, I have
never had any difficulty in classifying all persons detained or
condemned for crimes and offences, by relying upon organic, and
especially upon psychological symptoms.
Thus, as Garofalo recently said, whilst the accepted criminal
science recognises only two terms, the offence and the punishment,
criminal sociology on the other hand recognises three: the crime,
the criminal, and the means best calculated for social self-
defence. And it may be concluded that up to this time, science,
legislation, and, in a minor degree, but without any scientific
method, the administration of justice, have judged and punished
crime in the person of the criminal, but that hereafter it will be
necessary to judge the criminal as well as the crime.
After these general observations on the anthropological classes of
criminals, it might seem necessary to establish their respective
numerical proportions. But as there is no absolute separation
between one
and another, and as the frequency of the several
criminal types varies according to the crimes or offences, natural
or otherwise, against persons or property, no precise account can
be rendered of the criminal world as a whole.
By way of approximation, however, it may be said in the first
place that the classes of mad criminals and criminals of passion
are the least numerous, and represent something like 5 or 10 per
cent. of the total.
On the other hand, we have seen that born and habitual criminals
are about 40 or 50 per cent.; so that the occasional criminals
would also be between 40 and 50 per cent.
These are figures which naturally vary according to the different
groups of crime and of criminals which come under observation, and
which cannot be more accurately determined without a series of
special studies in criminal anthropology, as I said when answering
the objections which have been raised against the methods of this
novel science.
It remains for us, before concluding our first chapter, to
establish a fact of great scientific and practical value. This is
that, after the anthropological classification which I have
maintained for some ten years past, all who have been devoting
themselves to the subject of crime as regarded from a biological
and social standpoint have recognised the need for a
classification less simple than that of habitual and occasional
criminals, and which will be more or less complex according to the
criterion which may be adopted.
In the first place, the necessity is generally recognised of
abandoning the old arbitrary and algebraic type in favour of a
classification which shall correspond more accurately with the
facts of the case. This classification, originating in
observations made within the prison walls, I have extended in the
domain of criminal sociology, wherein it is now established as a
fundamental criterion of legislative measures which must be taken
as a protection against criminals, as well as a criterion of their
responsibility.
Secondly, the classifications of criminals hitherto given are not
essentially and integrally distinct. It has been seen, as a
matter of fact, that all the classifications which have been set
forth amount to a recognition of four types, the born, the insane,
the occasional criminals, and the criminals of passion; and this
again resolves itself into the simple and primitive distinction
between occasional and instinctive criminals. The category of
criminals by contracted habit would not be accepted by all
observers, but it corresponds too closely to our daily experience
to stand in need of further proof. And on the other hand I must
frankly decline to accept the authority of those who put forward
classifications more or less symmetrical without having made a
direct study of criminals; for the experimental method does not
admit systems based on mere imagination, or on vague recollections
of criminal trials, or on argumentative constructions built up
from the systems of others.
As a matter of fact, apart from the differences
of
nomenclature, it is evident that the partial discrepancies in this
anthropological classification of criminals are due in some
measure to the different points of view taken by observers. For
instance, the classification of Lacassagne, Joly, Krauss, Badik,
and Marro rest upon a purely descriptive criterion of the organic
or psychological characteristics of criminals. The
classifications of Liszt, Medem, and Minzloff, on the other hand,
depend solely upon the curative and defensive influence of
punishment; and those of Foehring and Starke upon certain special
points of view, such as the assistance of released prisoners, on
their tendency to relapse.
My own point of view, on the contrary, has been general and
reproductive, for my classification is based upon the natural
causes of crime, individual, physical, and social, and to this
extent it corresponds more closely with the theoretical and
practical requirements of criminal sociology. If the curative art
of society, like that of individuals, expects from positive
knowledge an indication of remedies, it is clear that a
classification based on the fundamental causes of crime is best
fitted to indicate a social cure for this manifestation of
disease, which is the essential object of criminal sociology.
For, as in biology one is carried from purely descriptive anatomy
to genetic anatomy and physiology, so in sociology we must pass on
from purely legal descriptions of crimes to the genetic knowledge
of the criminals who commit these crimes.
For this reason all the chief classifications of criminals, as has
been seen, may be brought into
line with my own, by virtue
of the more complete and fruitful test which has established it.
And thus we have a manifest proof that this classification
actually represents the common and permanent basis of all the
chief anthropological categories of criminals, whether in regard
to their natural causality and their specific character, or in
regard to the different forms of social self-defence which spring
out of them, and which must be adapted to the natural causes of
crime, and to the principal criminal types.
But whatever classification may be accepted, we shall always have,
as the fundamental axiom of criminal anthropology, this variety in
the types of criminals, which must henceforth be indispensable to
all who are theoretically or practically concerned with crime.
CHAPTER II.
_THE DATA OF CRIMINAL STATISTICS._
FOR moral and social facts, unlike physical and biological facts,
experiment is very difficult, and frequently even impossible;
observation in this domain brings the greatest aid to scientific
research. And statistics are amongst the most efficacious
instruments of such observation.
It is natural, therefore, that criminal sociology, after studying
the individual aspect of the natural genesis of crime, should have
recourse to criminal statistics for the study of the social
aspect. Statistical information in the words of Krohne, ``is the
first condition of success in opposing the armies of crime, for it
discharges the same function as the Intelligence department in
war.''
From statistics, in fact, the modern idea of the close relation
between offences and the conditions of social life, in some of its
aspects, and above all in certain particular forms, has most
directly sprung.
The science of criminal statistics is to criminal sociology what
histology is to biology, for it exhibits, in the conditions of the
individual elements of the collective organism, the factors of
crime as a
social phenomenon. And that not only for
scientific inductions, but also for practical and legislative
purposes; for, as Lord Brougham said at the London Statistical
Congress in 1860, ``criminal statistics are for the legislator
what the chart and the compass are for the navigator.''
The experimental school, accepting the fundamental and
incontestible idea, apart from its numerical and optimistic
exaggerations, that the statistics of crime must be considered in
regard to the growth and activity of the population, has opened up
an entirely new channel of fruitful observations, in the
classification and study of the natural factors of crime.
In my ``Studies of Crime in France'' (1881) I arranged in three
natural orders the whole series of causes leading to crime, which
had previously been indicated in a fragmentary and incomplete
manner.[12]
[12] Bentham, in his ``Introduction to the Principles of Morals
and Legislation,'' enumerates the following circumstances as
necessary to be considered in legislation:--temperament, health,
strength, physical imperfections, culture, intellectual faculties,
strength of mind, dispositions, ideas of honour and religion,
feelings of sympathy and antipathy, insanity, economic conditions,
sex, age, social status, education, profession, climate, race,
government, religious profession.
Lombroso, in the second edition of his ``Criminal,'' which
embraces all the divisions of his classical work, has made but a
rapid enumeration of the principal points:--race civilisation,
poverty, heredity, age sex, civil status, profession, education,
organic anomalies, sensations imitation. Morselli, treating of
suicide, has given a fuller classification of its contributory
causes:--worldly or natural influences, ethnical or demographical
influences, social influences, biopsychical influences.
From the consideration that human actions, whether honest or
dishonest, social or anti-social, are always the outcome of a
man's physio-psychical organism, and of the physical and social
atmosphere which surrounds him, I have drawn attention to
the _anthropological_ or individual factors of crime, the
_physical_ factors, and the _social_ factors.
The anthropological factors, inherent in the individual criminal,
are the first condition of crime; and they may be divided into
three sub-classes, according as we regard the criminal organically
physically, or socially.
_The organic constitution of the criminal_ comprises all anomalies
of the skull, the brain, the vital organs, the sensibility, and
the reflex activity, and all the bodily characteristics taken
together, such as the physiognomy, tattooing, and so on.
_The mental constitution of the criminal_ comprises anomalies of
intelligence and feeling, especially of the moral sense, and the
specialities of criminal writing and slang.
_The personal characteristics of the criminal_ comprise his purely
biological conditions, such as race, age, sex; bio-social
conditions, such as civil status, profession, domicile, social
rank, instruction, education, which have hitherto been regarded as
almost the exclusive concern of criminal statistics.
_The physical factors_ of crime are climate, the nature of the
soil, the relative length of day and night, the seasons, the
average temperature, meteoric conditions, agricultural pursuits.
_The social factors_ comprise the density of population; public
opinion, manners and religion; family circumstances; the system of
education; industrial pursuits; alcoholism; economic and political
conditions; public administration, justice and police; and in
general, legislative, civil and penal institutions.
We have
here a host of latent causes, commingling and combining in all
parts of the social organism, which generally escape the notice
both of theorists and of practical men, of criminologists and of
legislators.
This classification of the natural factors of crime, which has
indeed been accepted by almost all criminal anthropologists and
sociologists, seems to me more precise and complete than any other
which has been proposed.
In respect of this classification of the natural factors of crime,
it is necessary to make two final observations as to the practical
results which may be obtained in the struggle for just laws and
against the transgression of them.
In the first place, owing to ``the discovery of the unexpected
relation amongst the various forces of nature, which had
previously been thought to be independent,'' we must lay stress on
this positive deduction, that we cannot find an adequate reason
either for a single crime or for the aggregate criminality of a
nation if we do not take into account each and all of the
different natural factors, which we may isolate in the exigencies
of our studies, but which always act together in an indissoluble
union.
No crime, whoever commits it, and in whatever circumstances, can
be explained except as the outcome of individual free-will, or as
the natural effect of natural causes. Since the former of these
explanations has no scientific value, it is impossible to give a
scientific explanation of a crime (or indeed of any
other
action of man or brute) unless it is considered as the product of
a particular organic and psychical constitution, acting in a
particular physical and social environment.
Therefore it is far from being exact to assert that the positive
criminal school reduces crime to a purely and exclusively
anthropological phenomenon. As a matter of fact, this school has
always from the beginning maintained that crime is the effect of
anthropological, physical, and social conditions, which evolve it
by their simultaneous and inseparable operation. And if inquiries
into biological conditions have been more abundant and more
conspicuous by their novelty, this in no way contradicts the
fundamental conclusion of criminal sociology.
That being stated, we have still to examine the relative value of
these three classes of conditions in the natural evolution of
crime.
It seems to me that this question is generally stated
inaccurately, and also that it cannot be answered absolutely, and
in a word.
It is generally stated inaccurately; because they who think, for
instance, that crime is nothing else than a purely and exclusively
social phenomenon in the evolution of which the organic and
psychical anomalies of the criminal have had no part, ignore more
or less consciously the universal correlation of natural forces,
and forget that, in regard to any phenomenon whatsoever, it is
impossible to set an absolute limit to the network of its causes,
immediate and remote, direct and indirect.
To put this question in an arbitrary sense would
be like
asking if a mammal is the product of its lungs, or its heart, or
its stomach, or of vegetable constituents, or of the atmosphere;
whereas each of these conditions, internal and external, is
necessary to the life of the animal.
In fact, if crime were the exclusive product of the social
environment, how could one explain the familiar fact that in the
same social environment, and in identical circumstances of
poverty, abandonment, lack of education, sixty per cent. do not
commit crimes, and, of the other forty, five prefer suicide, five
go mad, five simply become beggars or tramps not dangerous to
society, whilst the remaining twenty-five actually commit crimes?
And amongst the latter, whilst some go no further than theft
without violence, why do others commit theft with violence, and
even kill their victim outright, before he offers resistance, or
threatens them, or calls for help, and this with no other object
than gain?
The secondary differences of social condition, which may be
observed even amongst the members of a single family, rotting in
one of the slums of our great towns, or amongst those who are
surrounded by the temptations of money or power, or the like, are
clearly not enough in themselves to explain the vast differences
in the actions which grow out of them, varying from honesty under
the greatest discouragement to suicide and murder.
The question, therefore, must be asked in a relative sense
altogether, and we must inquire which of the three kinds of
natural causes of crime has a
greater or less influence in
determining each particular crime at any given moment in the
individual and social life.
No clear answer of general application can be given to this
question, for the relative influence of the anthropological,
physical, and social conditions varies with the psychological and
social characteristics of each offence against the law.
For instance, if we consider the three great classes of crimes
against the person, against property, and against personal purity,
it is evident that each class of determining causes, but
especially the biological and social conditions, have a distinctly
different influence in evolving homicide, theft, or indecent
assaults. And so it is in every category of crimes.
The undeniable influence of social conditions, and still more of
economic conditions, in leading up to the commission of theft, is
far inferior in the genesis of homicides and indecent assaults.
And similarly, in each category of crimes, the influence of the
determining conditions varies greatly according to the special
forms of crime.
Certain casual homicides are plainly the result of social
conditions (gambling, drink, public opinion, &c.) in a much higher
degree than homicides which for the most part spring from
brutality, from the moral insensibility of individuals, or from
their psycho-pathological conditions, corresponding to abnormal
organic conditions.
In like manner, certain indecent assaults, incests, &c., are
largely the outcome of social environment, which, condemning a
number of persons to live in
hovels without air or light,
with a promiscuity of sex between parents and children such as
obtains amongst the brutes, effaces or deadens all normal sense of
modesty. On the other hand, there are cases of rape and the like
which are mostly due to the biological condition of the
individual, either in manifest forms of sexual disease or, less
manifest though none the less actual, of biological anomaly.
For thefts, again, whilst occasional simple thefts are largely the
effect of social and economical conditions, this influence becomes
feebler in comparison with impulses due to the personal
constitution, organic and psychical, as, for instance, in the case
of thefts with violence, and especially of murder for the purpose
of robbery, which scoundrels of the ``swell-mob'' so frequently
commit in cold blood.
The same observation applies to the conditions of physical
environment. For instance, if the regular increase of crimes
against property in winter (and, as I showed for the first time
from French statistics, in years when the cold is greatest) is
only an indirect result, through the social and economic
influences of temperature, the increase of crimes of passion and
indecent assaults during the months and years when the temperature
is highest is only a direct effect of temperature, even for such
as, by their biological conditions, offer the feeblest resistance
to these influences.
Meanwhile, a last objection has been raised against the
conclusions which I have maintained for many years past.
It has been said that, even if we admit that for
certain
crimes and criminals the greatest influence must be recognised as
due to the physical and psychical conditions of the individual,
extending from slightly manifested anomalies of an anthropological
character to the most accentuated pathological condition, this
does not exclude the possibility of a crime being due to social
conditions. In fact, it is said the anomalies of the individual
are in their turn only an effect of a debasing social environment,
which condemns its victims to organic and psychical degeneration.
This objection is sound enough if it be taken in a relative sense,
but groundless if it be insisted on absolutely.
It must be considered, in the first place, that the distinctions
of cause and effect are only relative, for every effect has its
cause, and _vice vers_; so that if wretchedness, material and
moral, is a cause of degeneration, degeneration itself, like
biological anomaly, is a cause of wretchedness. And in this sense
the question would be simply metaphysical, like the famous
Byzantine discussions as to whether there was originally an egg
before a hen or a hen before an egg.
And, in fact, when it was said, in regard to criminal geography,
that the extent and quality of crime in such and such a province,
instead of being the effect of biological conditions (race, &c.)
and physical conditions (climate, soil, &c.), were but the effect
of social and economic conditions (of rural and industrial
pursuits, and the like), I was able to make a very simple reply.
For, apart even from statistical proofs, if the social
conditions of such and such a province, which have an
unquestionable influence, are really the absolute and exclusive
cause of crime, we may still ask whether these social conditions
of the province are not themselves the effect of the ethnical
qualities of energy, intelligence, and so forth, in its
inhabitants, and of the more or less favourable conditions of the
climate and the soil.
But it may also be observed, more precisely, that even apart from
strongly marked and conspicuous pathological conditions, which
meanwhile assert themselves amongst the biological factors of
crime, there is a very great number of these cases in which it
cannot actually be said that the bio-psychical anomalies of the
criminal are the effect of a physically and morally poisonous
environment.
In every family in which there are several children, we find (in
spite of identical surroundings and conditions of a favourable
kind, and suitable methods of training and education), individuals
who differ intellectually from the cradle; we also find in the
degree or in the kind of their talent, the same individuals also
differ from their cradle in physical and moral constitution. And
though the phenomenon may only be manifest in the less numerous
cases of types which are markedly normal or abnormal, it is none
the less true also in the more numerous cases of ordinary types.
In this connection I may observe that physical and social
conditions have a greater or a less influence in proportion as the
physical and psychical constitution of the individual is more or
less sound and vigorous.
The practical conclusion, therefore, of these general observations
on the natural genesis of crime is this: Every crime is the
result of individual physical and social conditions; and, since
these conditions have a more or less dominant influence for
various forms of crime, the most certain and profitable mode of
defence which society can employ against criminality is of a
twofold character, and both modes ought to be employed and brought
into action simultaneously--in the first place, the amelioration
of the social conditions, as a natural preventive of crime, in the
nature of a substitute for punishment; and, secondly, measures of
perpetual or temporary elimination of criminals, according as the
influence of biological conditions in the evolution of crime is
all but absolute, or more or less great, and more or less curable.
As a matter of fact, when we follow the periodic variations of
crime, with its measured growth and decrease, we cannot fail to
conclude that these constant and constantly occurring variations
depend upon a corresponding variation of anthropological and
physical factors. For, whilst criminal statistics are far from
showing the regularity which Quetelet claimed with much
exaggeration, the proportional figures in regard to the bearings
of age, sex, calling, &c., upon criminality exhibit very
insignificant variations from year to year. And as for the
physical factors, if marked variations are explicable at some
given period, it is nevertheless evident that neither climate, nor
the nature of the soil, nor atmospheric conditions, nor the
seasons, nor the temperature of different years could have
undergone in the last half-
century such constant and
repeated variations as to correspond to those waves of criminality
which we shall presently exhibit in almost every nation of Europe.
Thus it is to the social factors that we must chiefly attribute
the periodic variations of criminality. For even the variations
which can be detected in certain anthropological factors, like the
influences of age and sex upon crime, and the more or less marked
outbreak of anti-social and pathological tendencies, depend in
their turn upon social factors, such as the protection accorded to
abandoned infants, the participation of women in non-domestic,
commercial and industrial life, preventive and repressive
measures, and the like. And again, since the social factors have
special import in occasional crime, and crime by acquired habit,
and since these are the most numerous sections of crime as a
whole, it is clear that the periodic movement of crime must be
attributed in the main to the social factors. So true is this,
that, as we shall presently see, the gravest crimes, especially
against persons, precisely because they mostly indicate congenital
criminality, follow a more steady and regular movement than these
slighter but far more frequent offences against property, public
order, and persons, of a more occasional character, and that, as
microbes of the world of crime, they are the more direct outcome
of social environment.
It is therefore another point in favour of the experimental school
that it has insisted on this sociological aspect of the problem of
criminality, by showing
legislators, outside the limits of
their punitive remedies, as easy as they are illusory, how they
might, as far as circumstances will permit, apply a genuine social
remedy to crime.
After these preliminary observations, it is time that we should
take a closer view of the general statistics of the movement of
crime in Europe, so far as they may be followed in official
figures.
Whilst we have no intention of offering a body of comparative
statistics, but only of giving a simple indication of the periodic
movement of crime, these data, which do not render it easy to
compare one country with another, though they are intimately
related so far as each particular country is concerned, suffice to
exhibit a few facts of some considerable importance.
The most conspicuous general phenomenon in the countries here
included is _the steadiness of the gravest forms of crime side by
side with the continuous increase of slighter offences_,
especially in the countries which show a long series of figures,
such as France, England, and Belgium. This proceeds mainly from
the progressive accumulation of offences against special
enactments, which are constantly being added to the original basis
of the penal code; but it is also a symptom of an actual
transformation in the criminal activity of the century, from
whence, through the gradual substitution of crimes against
property in the great towns for crimes against the person in
earlier centuries, we have a wider extension together with a lower
degree of intensity.
Another characteristic common to the countries under observation
is that, whilst the graver crimes against property show a somewhat
marked diminution, crimes against persons, on the other hand, show
more steadiness, either of regularity, as in France and Belgium,
or of increase, as in England, and still more in Germany. But
this phenomenon in the case of crimes against the person is in
actual correspondence with criminal activity arising from an
increase of population. On the other hand--apart from the
transformation of crimes of violence into crimes of craft and
fraud, due to the increase of movable property--the decrease of
offences against property is no more than the manifest effect of
an artificial change of judicial procedure, summary proceedings
taking the place of trial by jury.
An alternation, which is not invalidated by exceptions here and
there, has been observed in the criminality of different
countries, in the periodic movement of crimes and offences against
property and those against the person, of such a kind that years
of increase in the former usually answer to a diminution in the
latter, and _vice vers_. The principal factors in the annual
increase of theft, such as scarcity and extremes of weather, cause
a corresponding diminution of violent assaults and bodily harm, of
homicides and indecent assaults, and _vice vers_. On the
other hand, offences against property, which are very numerous,
contribute most of all to the total of annual crime; so that the
maximum of 1880 in Italy, as well as in France, Belgium and
Austria, is especially due to the great severity of the
winter of 1879-80, which in Italy coincided with an
agricultural crisis, attested by the very high price of corn.
Whereas from 1881 to 1885 there were very mild winters, with more
abundant harvests, and from 1886 a greater extreme of cold and a
more acute economic crisis.
The general tendency of these periodic oscillations of crime in
Italy, as in other European countries, is nevertheless far more
towards increase than towards decrease. This is also shown by the
proportional triennial averages of crimes and offences placed on
record, and of persons condemned to imprisonment.
In the movement of crime in each country it is necessary to
distinguish special oscillations, more or less prolonged, of
increase or decrease, from its general and permanent tendency.
The latter is determined by the fundamental conditions of each
nation, physical and social, apart from the purely artificial
section of transgressions brought into existence by new laws. The
special oscillations, on the other hand, are determined by the
annual variations in this or that factor of the more numerous
offences; that is to say, by abundance or scantiness of the
harvests, by the annual variations of temperature, by industrial
and political crises, and the like.
The oblivion of this marked distinction, coupled with the
prejudices of the scientific schools, and even of political
parties, leads to some curious disagreements, and to lively
discussions on the results of criminal statistics. For on one
side the champions of the classical school plainly see that the
persistent
increase of crimes and offences amounts to a
proof of that breakdown of penal systems, practical and
theoretical, which have hitherto been applied--as was admitted by
Holtzendorff. And on the other hand, the increase of crimes is
denied or affirmed for the purpose of supporting or attacking some
particular ministry. For, in parliaments more than elsewhere,
there is always a deep-seated and vivacious prejudice, a kind of
social artificiality, which causes men to think that the condition
of States, moral and economic, is fundamentally determined far
more by the action of this or that government than by natural
factors, which are mainly superior to and outside of governments
and politicians.
And this is why in Italy there has been much discussion of late,
in scientific publications, at the sittings of the Central
Commission of Judicial Statistics, and even in Parliament, as to
whether crime was increasing or decreasing.
Beltrani-Scalia and Lombroso almost simultaneously called
attention to the growth of Italian crime, and they were succeeded
by various adherents of the positive school, such as Ferri,
Garofalo, Pavia, Pugliese, Guidi, Bournet, Barzilai, and Rossi,
who produced evidence that the general tendency of crime in Italy
was to increase, and that the diminutions observed after 1880 were
mere transitory oscillations; and after 1886 they were justified
by facts.
On the other hand, official returns of criminal statistics, and a
majority of the members of the Central Commission, when pursuing
an inquiry suggested by myself into Italian crime since 1873
--for previously to this date there are no criminal
statistics in Italy except for 1853 and 1869-70--came to the
conclusion that there was a tendency towards a diminution of
crime. But their decision was formed from an entirely partial
standpoint, which they had taken up in the exigency of polemical
discussion. They compared, in fact, the years just concluded,
1881-5, with 1880, and thus it naturally followed that after a
maximum they had a relative decrease. And it was only this
ingenious comparison which gave an appearance of actual proof to
their optimistic assertions; for when a fever is at forty degrees,
the fall of even half a degree is very important. They paid
special attention to the so-called high criminality, which is
tried by the Assize courts, and is actually decreasing, though by
the purely artificial effect of more and more effective measures
of correction. But I have always maintained, and I have the
support of M. Oettingen, that we cannot separate crimes and
offences tried by the Assizes from those tried by the Tribunals,
for there is only a difference of degree between them, as is clear
in regard to theft, assaults and wounding, forgery and the like.
It is a curious fact that similar illusions have existed in all
countries through the same causes and prejudices which have been
mentioned above. In France, for instance, we often find that the
keepers of the seals, reporting on volumes of the excellent and
valuable series of criminal statistics since the year 1826,
occasionally remark on these oscillatory diminutions, and make a
point of treating them as
signs of a constant and general
tendency, which succeeding years have always contradicted.
In France also, the same controversy has been kept up since 1840,
with the same polemical artifices as were employed more recently
in Italy, on the question whether crime has increased or
decreased. Dufau, Branger, Berrzat de St. Prix, and Legoyt
affirmed that it had diminished since 1826, against the true
opinion of de Metz, Dupin, Chassan, Mesuard, and Fayet, the last
of whom quotes the others in one of his essays on criminal
statistics, now undeservedly forgotten, though they abound in
striking and profound observation.
But, as for France in those days, so for Italy to-day, the
statistics of succeeding years quickly proved that what official
optimism and national self-complacency spoke of as pessimism on
our part was but a conscientious inference from lamentable facts,
established in every country by the influence of civilisation on
crime, which I have described in preceding pages.
After these general statements we ought logically to watch the
periodic movement of each leading category of crimes and offences
in each division of the country; for not all crimes, nor all
districts, pursue the same course from year to year. But as this
inquiry is impossible in the present work, we may pass on to the
general figures for other European countries.
FRANCE.
1826-8. 1895-7.
Police Contraventions ... ... ... 100 391 |
Offences ... ... ... ... ... ... 100 397 |
Crimes against the person ... ... 100 98 |in 61 years
'' property ... ... ... 100 41 |
BELGIUM.
1850-2. 1883-5.
Tried by the Correctional Tribunals,
for crimes against the person soO log t in 36 years
'' property ... IOO 162)
1840-2. 1883-5.
Tried by the Tribunals for ``Offences'' loo 260l
Tried at Assizes, crimes against the person loo 65 W in 46 years
'' '' property loo 2I )
ENGLAND.
1857-9. 1884-6.
Tried summarily, for offences ... Ioo 176 in 30 years.
1835-7. 1884-6.
Criminal cases, against the person Ioo 143 }
'' against property, and for Win 55 years.
circulation of false money ... too 55 )
IRELAND.
1864-6. 1886-8.
Tried summarily ... ... ... Ioo 95 )
Crimes against the person ... .. Ioo 57 1 in 25 years.
'' property, and false money loo 52}
PRUSSIA.
1854-6. 1376-8.
Contraventions and ``vols de bois'' --. IOO l34 ~ in 25 years.
Crimes and offences ... ... 100 134
GERMANY.
1882-4. 1885-7.
Crimes and offences against public order 100 110
'' '' the person 100 116 in 6 years.
'' '' property 100 95
AUSTRIA.
1867-9. 1884-6.
Prisoners condemned for crimes --. 100 122 1 in 20 years.
'' '' offences ... 100 495
SPAIN.
1883-4. 1886-7.
Tried for crimes and offences -- 100 3 t in 5 years.
'' contraventions ...... 100 113)
The most constant general fact shown by these data is in all cases
the very remarkable increase of slighter delinquencies, side by
side with constancy or
slight diminution in crimes against
the person, and a large diminution in crime against property.
This is seen in France, England, Belgium, whilst there is an
increase both of crimes and offences in Austria.
Behind the general fact, however, we must distinguish between the
actual and the apparent.
On the one hand, the decrease of more serious crime against
property is simply due to prisoners electing to be sentenced by
the inferior court, which is at the discretion of the Tribunals in
France, but legally established in Belgium, by the laws of 1838
and 1848, and in England by the Acts of 1856 and 1878--an election
of the slighter but more certain punishment of the magistrates in
preference to going before a jury. Indeed, crimes against the
person, in which there is less power of election, do not exhibit
so marked a decrease; and accordingly we see that in Belgium the
increase of ``correctionalised'' crimes is due far more to crimes
against property (62 per cent in 36 years) than to those against
the person (9 per cent.).
On the other hand, the growth of slighter delinquency is partly
the effect of special enactments, which are constantly creating
new infractions, offences or contraventions. For France may be
mentioned the law of 1832 on eluding supervision, that of 1844 on
the game laws, that of 1857 on the false description of goods for
sale, of 1845 on railway offences, of 1849 on the expulsion of
refugees, of 1873 on drunkenness, and of 1874 on requisition of
horses. I dealt with the statistical results of these laws, and
with the influence of the increasing number of police
agents, in my ``Studies on Criminality in France'' (Rome,
1881); and I will here add only a single observation. If it is
true, as M. Joly says, that other laws, passed since 1826, have
extinguished a few offences, or at least have diminished their
frequency under less severe regulations, yet it is also true that
the new infractions created in the past half-century show far
higher numbers than those of the infractions which have been
extinguished or rendered less easy. So that amongst the 297 per
cent. of increase on the offences tried in France between 1826 and
1887, the element due to legal creation of new infractions must
not be ignored.
It cannot, however, be denied that for certain more frequent
offences we have a real and very noteworthy increase, apart from
any legislative or statistical cause of disturbance.
The same observation may be made in regard to England. There also
the increase of 76 per cent, during thirty years of offences tried
summarily is due in part to new infractions, created by special
legislation, and especially by the Education Act of 1873, under
which there were more than forty thousand infractions in 1878, and
more than sixty-five thousand in 1886.
In regard to this delinquency in England (wherein are included,
over and above real offences, certain infractions corresponding to
the police contraventions of the Italian, French, Belgian and
Austrian codes) it is to be observed that the increase of 76 per
cent. in thirty years is due rather to contraventions than to
offences. And this would establish a remarkable
difference
between the variations of delinquency in England and in France.
If we analyse the record of infractions tried summarily in
England, we find that contraventions of the law in respect of
drunkenness account for most of this increase (from 82,196 in 1861
to 183,221 in 1885 and 165,139 in 1886). On the other hand,
offences against the person (assaults) and against property
(stealing, larceny, malicious offences) have not shown so large an
increase.
In fact, if we compare the variations in assaults and thefts in
France and England, we have the following figures:--
ENGLAND.
1861-3. 1879-81.
Prisoners tried summarily for assaults ... ... 100 102
Ditto for stealing, larceny, and malicious
offences ... ... ... ... ... ... ... 100 110
FRANCE.
Cases tried by the Tribunals:
For assault and wounding ... ... ... ... ... 100 134
For simple theft ... ... ... ... ... ... ... 100 116
So that in England not only the total delinquency, but more
especially the commoner offences against the person and against
property show a slighter increase than that which has been
established for the same period in France. Whilst we do not
overlook the greater increase of crimes against the person in
England (coinciding, of course, with the doubling of the
population in fifty-five years), this fact seems to me to prove
the salutary influence of English organisations against certain
social factors which lead up to delinquency (such as the care of
foundlings, the guardianship of the poor, and so forth),
notwithstanding the great development of economic activity, which
is assuredly in no way inferior to that of France. The figures
strengthen my conclusions as to the social factors of crime, and
refute the optimistic theory of Poletti.
But the actual participation of each country in the general
increase of crime in Europe is determined by other causes, outside
of the artificial influences of different codes of law. And the
most general and constant of these causes, in all the various
physical and social environments, is the annual increase of
population, which, by adding to the density of the inhabitants of
each country, multiplies their material and legal relations to one
another, and, consequently, the objective and subjective
constituents of crime.
Taking the official Italian figures, which are also relied on by
M. Levasseur, we find, for the periods corresponding to the
variations of criminality, the following rates of increase in the
population of the different countries. Ireland shows a decrease,
owing to emigration.
Increase.
Italy 22,104,789 in 1863--30,947,306 in 1889 40 per cent.
'' 27,165,553 in 1873--30,565,188 in 1888 12 ''
France 31,858,937 in 1826--38,218,903 in 1887 20 per cent.
Belgium 4,072,619 in 1840-- 5,583,278 in 1885 44 ''
Prussia 21,046,984 in 1852--26,614,428 in 1878 26 ''
Germany 45,717,000 in 1882--47,540,000 in 1887 4 ''
England 13,896,797 in 1831--27,870,586 in 1886 101 ''
'' 20,066,224 in 1861--27,870,586 in 1886 39 ''
Austria 20,217,531 in 1869--23,070,688 in 1886 14 ''
Ireland 5,798,967 in 1861-- 4,777,545 in 1888 dec. 17 ''
It must, however, be observed, with regard to this increase of the
population, firstly that it tells as a factor
of criminality
only in so far as it is not neutralised, wholly or in part, by
other influences, mainly social, which prevent crime or render it
less grave. Secondly, it is not right merely to compare the
proportional rates of increase in the population with those of
crime, as was done for instance by M. Bodio, who said that in
Italy, from 1873 to 1883, ``since the population had increased by
7.5 per cent., crime might have increased during the same time by
7.5 per cent., without its being fair to say that it had actually
increased.'' In point of fact, as M. Rossi remarked, since in
Italy, and almost all the European States, the growth of the
population is due to the excess of births over deaths (for
emigration is more numerous than immigration), it is evident that,
when we confine our attention to short periods, the addition to
the population, consisting of children under ten or twelve years,
does not increase crime in an appreciable degree. The deaths, on
the other hand, must be subtracted from all stages of human life,
but especially from the number of those who can and do commit
crimes and offences.
Now, as we cannot in this place go into detail, I must confine
myself to the statement of a few characteristic facts, as
illustrated by European crime. Thus we perceive the influence of
the great famine of 1846-7 on crimes against property in France
and Belgium; the rapid oscillations of crime in Ireland,
indicating the unstable political and social conditions of the
country; and the parallel movements of crime in, France and
Prussia. We see, indeed, a constant diminution of crime for the
period between 1860 and
1870, followed (after the
statistical disturbance of the terrible year 1870-1) by a period
of serious and continued increase of crime, resulting from social
and economic conditions, as shown especially by the increase of
vagrancy and theft since 1875.
All these general facts go to prove the close and intimate
connection between crime and the aggregate of its various
constituents. So that, without pursuing more detailed inquiries
into certain social factors of crime, which are capable of
statistical enumeration, such as the increase in the number of the
police, the abundance or scarcity of corn and wine, the spread of
drunkenness, family circumstances, increase of personal
possessions, the facility or otherwise of the settlement of
disputes, commercial and industrial crises, the rate of wages, the
variation from year to year of the general conditions of
existence, and so forth, coincident with the development of
education, encouragements to thrift and the organisation of
charity, we must now proceed to draw from these statistical data
the most important conclusions of criminal sociology.
I.
Criminal statistics show that crime increases in the aggregate,
with more or less notable oscillations from year to year, rising
or falling in successive waves. Thus it is evident that the level
of criminality in any one year is determined by the different
conditions of the physical and social environment, combined with
the hereditary tendencies and occasional impulses of the
individual, in obedience to a law which I have called, in analogy
with chemical phenomena, _the law of criminal saturation_.
Just as in a given volume of water, at a given temperature, we
find a solution of a fixed quantity of any chemical substance, not
an atom more or less, so in a given social environment, in certain
defined physical conditions of the individual, we find the
commission of a fixed number of crimes.
Our ignorance of many physical and psychical laws and of
innumerable conditions of fact, will prevent us from obtaining a
precise view of this level of criminality. But none the less is
it the necessary and inevitable result of a given physical and
social environment. Statistics show us, indeed, that the
variations of this environment are always attended by
consequential and proportional variations of crime. In France,
for instance (and the observation will be found to apply to every
country which possesses an extended series of criminal
statistics), the number of crimes against the person varies but
little in sixty-two years. The same thing holds good for England
and Belgium, because their special environment is also less
variable,
by reason that hereditary dispositions and human
passions cannot vary profoundly or frequently, except under the
influence of exceptional disturbances of the weather, or of social
conditions. In fact, the more serious variations in respect of
crimes against the person in France have taken place either during
political revolutions, or in years of excessive heat, or of
exceptional abundance of meat, grain, and wine. This is
illustrated by the exceptional increase of crime from 1849 to
1852. Minor offences against the person, on the contrary, which
are more occasional, assaults and wounding, for example, vary in
the main, as to their annual oscillations, with the abundance of
the wine harvest, whilst in their oscillations from month to month
they display a characteristic increase during the vintage periods,
from June to December, notwithstanding the constant diminution of
other offences and crimes against the person.
On the other hand, crimes against property, and still more
offences against property, show wide oscillations on account of
the variability of the special environment, which is almost always
in a condition of unstable equilibrium, as in periods of scarcity,
and of commercial, financial and industrial crises, and so forth,
whilst they are subject also to the influence of the physical
environment. Crimes and offences against property display
extraordinary increases in the severest winter seasons, and
diminutions in milder winters.
And this correspondence between the more general, powerful, and
variable physical and social factors of
crime, as well as
its more characteristic manifestations such as thefts, wounding,
and indecent assaults, is so constant and so direct that, when I
was studying the annual movement of criminality in France, and
perceived some extraordinary oscillation in the crimes and
offences, I foresaw that in the annals of the year I should find
mention of an agricultural or political crisis, or an exceptional
winter or summer in the records of the weather. So that with a
single column of a table of criminal statistics I was able to
reconstruct the historical condition of a country in its more
salient features. In this way psychological experiment again
confirmed the truth of the law of criminal saturation.
Not only so, but it may be added that as, in chemistry, over and
above the normal saturation we find that an increased temperature
of the liquid envelopes an exceptional super-saturation, so in
criminal sociology, in addition to the ordinary saturation we are
sometimes aware of an excess of criminal saturation, due to the
exceptional conditions of the social environment.
Indeed it is to be observed not only that the main and typical
criminality has a sort of reflex criminality depending upon it,
but also that an increase of more serious or more frequent crimes
induces a crop of resistance to and assaults upon the guardians of
public order, together with false witness, insults, avoidance of
supervision, absconding, and the like. Certain crimes and
offences also have their complementary offences, which from being
consequences become in their turn the causes of new offences.
Thus concealment and
purchase of stolen goods increase
simultaneously with theft; homicide and wounding lead to the
illegal carrying of arms; adultery and abusive language to duels,
and so forth.
Beyond this there are sundry kinds of excessive criminal
saturations which are exceptional, and therefore transitory.
Ireland and Russia present us with conspicuous examples in their
political and social crimes; and similarly America, during
election contests. So in France before and after December 2 1851,
the harbouring of criminals, which in no other quadrennial period
from 1826 to 1887 exceeds a record of fifty, rises in 1850-53 as
high as 239. So during the famine of 1847, theft of grain rises
in France to forty-two in a single year, whilst for half a century
it barely reaches a total of seventy-five. It is notorious,
again, that in years of dear provisions, or severe winters, a
large number of thefts and petty offences are committed for the
sole object of securing maintenance within the prison walls. And
in this connection I have observed in France that other offences
against property decrease during a famine, by an analogous
psychological motive, thus presenting a sort of statistical
paradox. Thus, for example, I have found that as oidium and
phylloxera are more effective than severe punishments in
diminishing the number of assaults and cases of unlawful wounding,
so famine succeeds better than the strongest bars, or dogs kept
loose in the prison yards, in preventing the escape of prisoners,
who at such times are detained by the advantage of being supported
at the public expense.
For a parallel reason in 1847, a famine year, whilst
all
crimes and offences against property increased in an extraordinary
fashion, only the crimes of theft and breach of confidence by
household servants showed a characteristic decrease, because such
persons were deterred by the fear of being dismissed by their
employers during the time of distress. The figures are as
follows:--
FRANCE (Assizes). 1844. 1845. 1846. 1847.
Crimes against property ... 3,767 3,396 3,581 4,235
Breach of confidence by
household servants ... ... 136 128 168 104
Thefts by the same ... ... 1,001 874 924 896
M. Chaussinand adds, by way of confirmation of my statement that
during economic crises, such as famine and high prices of grain,
the number of cases of escape from justice also decreases, _*for_
``thieves and tramps prefer arrest, in order to escape from the
misery which afflicts them outside the prison walls.''
Two fundamental conclusions of criminal sociology may be drawn
from this law of criminal saturation.
The first is that it is incorrect to assert a mechanical
regularity of crime, which from Quetelet's time has been much
exaggerated. There has been a too literal insistance on his
famous declaration that ``the budget of crime is an annual
taxation paid with more preciseness than any other''; and that it
is possible to calculate beforehand how many homicides, poisoners,
and forgers we shall have, because ``crimes are generated every
year in the same number, with the same punishments, in the same
proportions.'' And one constantly meets with this echo of the
statisticians, that ``from year to year crimes against the person
vary at the
most by one in twenty-five, and those against
property by one in fifty''; or, again, that there is ``a law of
limitation in crime, which does not vary by more than one in
ten.''
This opinion, originated by Quetelet and other statisticians after
an inquiry confined to the more serious crimes, and to a very
short succession of years, has already been refuted, in part by
Maury and Rhenisch, and more plainly by Aberdare, Mayr,
Messedaglia and Minzloff.
In fact, if the level of criminality is of necessity determined by
the physical and social environment, how could it remain constant
in spite of the continual variations, sometimes very considerable,
of this same environment? That which does remain fixed is the
proportion between a given environment and the number of crimes:
and this is precisely the law of criminal saturation. But the
statistics of criminality will never be constant to one rule from
year to year. There will be a dynamical but not a statical
regularity.
Thus the element of fixity in criminal sociology consists in
asserting, not the fatality or predestination of human actions,
including crimes, but only their necessary dependence upon their
natural causes, and therewith the possibility of modifying effects
by modifying the activity of these causes. And, indeed, even
Quetelet himself recognised this when he said, ``If we change the
social order we shall see an immediate change in the facts which
have been so constantly reproduced. Statisticians will then have
to consider whether the changes have been useful or injurious.
These studies therefore show how
important is the mission of
the legislator, and how responsible he is in his own sphere for
all the phenomena of the social order.''
The second consequence of the law of criminal saturation, one of
great theoretical importance, is that the penalties hitherto
regarded, save for a few platonic declarations, as the best
remedies for crime, are less effectual than they are supposed to
be. For crimes and offences increase and diminish by a
combination of other causes, which are far from being identical
with the punishments lightly written out by legislators and
awarded by judges.
History affords us various impressive examples.
The Roman Empire, when society had fallen into extreme corruption,
recalling many symptoms of our own epoch, vainly promulgated laws
which visited celibacy, adultery, and incest--``venus
prodigiosa''--with ``the vengeance of the sword and punishments of
the utmost severity.'' Dio Cassius (``Hist. Rom.,'' lxxvi. 16)
says that in the city of Rome alone, after the law of Septimus
Severus, there were three thousand charges of adultery. But the
stringent laws against these crimes continued to the days of
Justinian, which shows that the crimes had not been checked; and,
as Gibbon says (``Decline and Fall,'' ch. 44), the Scatinian law
against ``venus nefanda'' had fallen into abeyance through lapse
of time and the multitude of offenders. Yet we see in our own
days, as in France, that there are some who would oppose celibacy
with no other remedy than a law passed for the purpose.
Since medival times the increasing gentleness of manners
has caused a diminution of crimes of blood, once so numerous that
there was need of sundry ``truces'' and ``peaces,''
notwithstanding the harsh penalties of previous centuries. And Du
Boys called Cettes simple because, after giving a table of
shocking punishments in the Germany of his day (the fifteenth
century), he marvelled that all these pains and torments had not
prevented the increase of crimes.
Imperial Rome deluded herself with the idea that she could stamp
out Christianity with punishments and tortures, which, however,
only seemed to fan the flame. In the same way Catholic Europe
hoped to extinguish Protestantism by means of vindictive
persecution, and only produced the opposite effect, as always
happens. If the Reformed faith does not strike root in Italy,
France, and Spain, that must be explained by psychological reasons
proper to those nations, independently of the stake and of
massacres, for it did not strike root even when religious belief
was liberated from its fetters. This does not prevent all
governments in every land from continuing to believe that, in
order to arrest the spread of certain political or social
doctrines, there is nothing better than to pass exceptional penal
laws, forgetting that, with ideas and prejudices just as with
steam, compression increases the expansive force.
Popular education has swept away the so-called crimes of magic and
witchcraft, though they had withstood the most savage punishments
of antiquity and medival times.
Blasphemy, in spite of the slitting of the nose, tongue, and
lips, enacted by the penal laws, and continued in France from
Louis XI. to Louis XV., was very common in the middle ages, being
(like witchcraft, trances, and self-immurement) a pathological or
abnormal manifestation of religious emotion, which in those times
had an extraordinary development. And the habit of blasphemy
diminished under the psychological and social evolution of our own
days, precisely when it ceased to be punished. Or, rather, it
continued to this day, as in Tuscany, where the Tuscan penal code
(Art. 136), which survived until December 31, 1889, still punished
it with five years' imprisonment. The illusion as to the efficacy
of punishment is so deeply rooted that a proposal was made in the
Senate, in 1875, to include this penalty in the new Italian penal
code. And at Murcia, in Spain, trials for blasphemy have lately
been re-established.
Mittermaier observed that, if in England and Scotland there were
far fewer cases of false witness, perjury, and resistance to
authority than in Ireland and on the Continent, this must be due
in great measure to national character, which is one of the
hereditary elements of normal as well as of abnormal and criminal
life.
Thus even apart from statistics we can satisfy ourselves that
crimes and punishments belong to two different spheres; but when
statistics support the teaching of history, no doubt can remain as
to the very slight (I had almost said the absence of any)
deterrent effect of punishments upon crime.
We may indeed derive a telling proof from statis
tical
records, by referring to the progress of repression in France,
over a period of sixty years, as I have already done in my
``Studies'' previously quoted.
When we speak of the repression of crime, we must first of all
distinguish between that which is due to the general character of
penal legislation, more or less severe, and that which is secured
by the administration by the judges of the law as it is. Now, so
far as legislation is concerned, the growth of crime in France
certainly cannot be attributed to the relaxation of punishment.
The legislative reforms which have taken place, especially in 1832
and 1863, on the general revision of the penal code, modified
punishments to some extent, but with the definite purpose and
result, as shown by the same official records of criminal
statistics, of strengthening the repressive power of the law by
providing for the application of less aggravated punishments. The
repugnance of juries and judges against excessive punishments, and
their preference for acquittal, is, indeed, a psychological law.
Moreover, it is well known that if there is in Europe a penal code
less mild than any of the rest, it is that of France, which is the
oldest of those now in force, and still retains much of the
military rigour of its origin. And it must be added that for
certain crimes, as for rapes and indecent assaults, which are
nevertheless constantly increasing in France, the punishments have
been increased by several successive enactments. The same is true
of extortion by threats of exposure, which occurs more and more
frequently, as M. Joly also observes, in spite of the severe
punishments of the law of 1863.
The question, therefore, is reduced to judicial repression, the
progress whereof must be observed in the past half-century, for it
has evidently the greatest influence upon crime. Laws, in fact,
have no real operation if they are not applied more or less
rigorously; for in the social strata which contribute most to
criminality the laws are known only by their practical
application, which is also the only truly defensive function,
carrying with it a special preventive of the repetition of the
crime by the person condemned.
Thus the arguments of jurists and legislators have not much value
for the criminal sociologist when they are based solely on the
psychological illusion that the dangerous classes trouble
themselves about the shaping of a penal code, as the more
instructed and less numerous classes might well do. The dangerous
classes attend to the sentences of the judges, and still more to
the execution of those sentences, than to the articles of a code.
In this connection I cannot agree with the forecast of Garofalo as
to the perilous effect of the abolition of capital punishment in
Italy on the imagination of the people; for he was well aware
that, though it is defined in various articles of the old code,
and in about sixty sentences every year, the punishment of death
has not been carried out, which is the essential point, for the
last fifteen years.
The elements which determine the greater or less severity of
judicial repression are of two kinds:--
1. The ratio of persons acquitted to the total number of
prisoners put on their trial.
2. The ratio of the severest punishments to the total number of
prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a
difference in the severity of repression as such, for condemnation
or acquittal ought to point merely to the certainty or otherwise
of guilt, the sufficiency or insufficiency of the evidence. But,
as a matter of fact, the proportional increase of convictions does
partly represent greater severity on the part of the judges, and
still more of the juries, who display it by attaching weight to
somewhat unconvincing evidence, or in too readily admitting
circumstances which tend to aggravate the offence. This is
confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important,
for it is a psychological law that man, in regard to punishment as
to any other kind of suffering, is more affected by the certainty
than by the gravity of the infliction. And it is to the credit of
criminal theorists of the classical school that they have steadily
maintained that a mild yet certain punishment is more effectual
than one which, being severe in itself, holds out a stronger hope
of escaping it. Nevertheless it is a fact that they have carried
the theory too far, by seeking to obtain excessive mitigations and
abbreviations of punishment, without exerting themselves to secure
certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident and continuous,
both at the Assizes and in the Tribunals, except for the last
quadrennial period. This may of course indicate a more careful
management of the trials by the judges; but it certainly shows
an undoubted tendency towards increased judicial severity,
which, meanwhile, has not arrested the growth of crime.
PERCENTAGE OF ACQUITTALS IN FRANCE.
Tried in
Assize Courts. Tribunals. Total
1826-30 ... ... 39 .. ... 31 ... ... 32
1831-5 ... ... 42 ... ... 28 ... ... 30
1836-40 ... ... 35 ... ... 22 ... ... 23
1841-5 ... ... 32 ... ... 18 ... ... 19
1846-50 ... ... 36 ... ... 16 ... ... 17
1851-5 ... ... 28 ... ... 12 ... ... 13
1856-60 ... ... 24 ... ... 10 ... ... 7
1861-5 ... ... 24 ... ... 9 ... ... 6
1866 9 ... ... 23 ... ... 17 ... ... 8
1872-6 ... ... 20 ... ... 6 ... ... 6
1877 81 ... ... 23 ... ... 5 ... ... 6
1882-6 ... ... 27 ... ... 6 ... ... 6
PERCENTAGE OF ACQUITTALS IN ENGLAND.
Criminal Proceedings. Summary Proceedings.
1858 62 ... ... ... 25 ... ... ... 34
1863-7 ... ... ... 24 ... ... ... 31
1868-72 ... ... ... 26 ... ... ... 24
1873-7 ... ... ... 25 ... ... ... 21
1878-82 ... ... ... 24 ... ... ... 21
1883-7 ... ... ... 22 ... ... ... 20
Here also it appears that the growth of crime in England, though
less than in France, is not due to the weakening of judicial
severity through the greater number of acquittals. The number
has, in fact, constantly diminished, especially in summary
proceedings, which is just where the greatest increase of crime is
manifest.
Passing now to the other factor of judicial repression, that is to
the percentage of persons sentenced to graver kinds of punishment,
we have to take into account, amongst assize cases in France, the
prisoners
sentenced to death, penal servitude, and solitary
imprisonment, excluding such as are sentenced to correctional
punishment (simple imprisonment and fines) as well as young
prisoners sent to reformatories; and in regard to the Tribunals,
we must take the percentages of those who are condemned to
imprisonment, which is the most serious punishment, the remainder
being fined, or handed over to their parents, or sent to
reformatories.
Condemned at Assizes Condemned
FRANCE. ---------------------------- by Tribunals
To death. To penal servitude. to imprisonment.
1826-30 ... ... 2.5 ... ... 58 ... ... ... 61
1831-5 ... ... 1.5 ... ... 42 ... ... ... 65
1836-40 ... ... .7 ... ... 37 ... ... ... 65
1841-5 ... ... 1 ... ... 40 ... ... ... 61
1845-50 ... ... 1 ... ... 39 ... ... ... 62
1851-5 ... ... 1.1 ... ... 48 ... ... ... 61
1856-60 ... ... 1 ... ... 49 ... ... ... 61
1861-5 ... ... .6 ... ... 48 ... ... ... 64
1866-9 ... ... .5 ... ... 47 ... ... ... 68
1872-6 ... ... .7 ... ... 49 ... ... ... 66
1877-81 ... ... .7 ... ... 50 ... ... ... 66
1882-6 ... ... 1 ... ... 49 ... ... ... 65
These figures, if they do not show (as might have been foreseen)
so large an increase of severity as in the percentages of
acquittals, yet prove that repression has not diminished even in
the serious character of the punishments. On the other hand, we
can see that, in the assize cases, excluding the first period,
before the revision of 1832, whilst capital punishment shows a
certain diminution (especially due to the laws of 1832, 1848, &c.,
which reduced the number of cases involving the death penalty),
though continuing at a certain level since 1861, sentences of
penal servitude and solitary confinement show a con
tinued
increase from the second period, and especially since 1851.
So also at the Tribunals, except for a few oscillations, as in the
ninth period, there is a sustained increase of repression.
And the fact that this increased ratio of the more serious
punishments actually indicates a greater severity on the part of
the judges can only be contested on the ground of a simultaneous
increase of the more serious crimes and offences. On the other
hand, we note in France a general decrease of crimes against the
person (except for assaults on children), and still more of crimes
against property.
There is also a striking confirmation in the corresponding
acquittals and condemnations of a more serious character. We see,
in fact, that the more serious condemnations increase precisely
when the acquittals decrease (as in the 4th, 6th, 7th, and 10th
periods at the Assizes, and the 2nd, 5th, and 8th periods at the
Tribunals); whilst in the years of more frequent acquittals there
is also a diminution of more serious punishments, as in the 5th
and 8th periods at the Assizes. That is to say, the two sets of
statistics actually indicate a greater or less severity on the
part of juries and judges.
This firmer repression is demonstrated in spite of the continued
increase of attenuating circumstances, which rose at the Assizes
from 50 per cent. in 1833 to 73 per cent. in 1806, and at the
Tribunals from 54 per cent. in 1851 to 65 per cent. in 1886.
Nevertheless it is a fact that the number of cases tried by
default at the Assizes has continuously decreased
from a
yearly average of 647 in 1826-30 to one of 266 in 1882-6.
For Italy we have the following figures:
PRETORS. TRIBUNALS. ASSIZES.
-------------------------------------------
Condemned to Imprisonment. Condemned Penal Servitude Slighter
imprisonment. to death. for life. temporary. punishts
1874 21 79 1.2 5.6 65 28
5 22 80 1.3 6.5 63 29
6 23 81 1.3 6.1 66 27
7 24 82 1.5 7.2 66 25
8 25 85 1 7.6 67 25
9 25 -- 1.2 6.3 67 25
1880 26 -- 1.3 5.5 68 25
1 24 81 1.7 6.1 65 27
2 23 81 1.5 6 66 27
3 23 81 1.7 5.4 64 29
4 23 81 1.3 5.3 64 30
5 23 81 1.6 5.4 63 30
6 21 81 1.6 5.7 62 30
7 21 83 1.1 5.8 63 30
8 21 82 1.2 4.7 65 29
Thus, once more, there has been no relaxation of repression,
except in late years for those condemned by the Pretors to penal
servitude for life.
The conclusion, therefore, is still the same, namely that judicial
repression, in France and Italy, has grown stronger and stronger,
whilst criminality has increased more and more.
In this fact, again, which confutes the common opinion that the
sovereign remedy of crime is the greater rigour of punishment, we
may fairly find a positive proof that the penal, legislative, and
administrative systems hitherto adopted have missed their aim,
which can be nothing else than the defence of society against
criminals.
Henceforth we must seek, through the study of
facts, a
better direction for penal legislation as a function of society,
so that, by the observation of psychological and sociological
laws, it may tend, not to a violent and always tardy reaction
against crime already evolved, but to the elimination or diversion
of its natural factors.
This fundamental conclusion of criminal statistics is so important
that we must confirm it by adding to the statistical data the
general laws of biology and sociology. This is the more necessary
because my position as first stated has met with some criticism.
In the first place, it is easily seen, when we compare the total
result of crime with the varied character of its anthropological,
physical, and social factors, that punishment can exert but a
slight influence upon it. Punishment, in fact, by its special
effect as a legal deterrent, acting as a psychological motive,
will clearly be unable to neutralise the constant and hereditary
action of climate, customs, increase of population, agricultural
production, economic and political crises, which statistics
invariably exhibit as the most potent factors of the growth or
diminution of criminality.
It is a natural law that forces cannot conflict or neutralise each
other unless they are of the same kind. The fall of a body cannot
be retarded, changed in direction or accelerated, save by a force
homogeneous with that of gravity. So punishment, as a
psychological motive, can only oppose the psychological factors of
crime, and indeed only the occasional and moderately energetic
factors; for it is
evident that it cannot, as a preliminary
to its application, eliminate the organic hereditary factors which
are revealed to us by criminal anthropology.
Punishment, which has professed to be such a simple and powerful
remedy against all the factors of crime, is therefore a panacea
whose potency is far beneath its reputation.
We must bear in mind a fact which is familiar enough, though it
has been too often forgotten by legislators and criminalists.
Society is not a homogeneous aggregate, but on the contrary an
organism, like every animal organism, composed of tissues of
varying structure and sensibility. Every society, in fact, with
its progressive and increasingly distinctive needs and
occupations, is a product of the union of social classes which
differ greatly in their organic and psychical characteristics.
The physical constitution, the habits, sentiments, ideas, and
tendencies of one social stratum are far from being the same as
those of other strata. Here again we have, as Spencer would say,
the law of evolution through a departure from the homogeneous to
the heterogeneous, from the simple to the complex, or, in the
words of Ardigo, a natural formation by successive distinctions.
Amongst savage tribes this distinction of the social strata does
not exist, or it is far less marked than in barbarian societies,
and still less than in civilised societies.
Every schoolmaster with a bent for psychological observation
separates his pupils into three classes. There is the class of
industrious pupils of good disposition, who work of their own
accord, without
calling for strict discipline; that of the
ignorant and idle (degenerate and of weak nervous force) from whom
neither mildness nor severity can obtain anything worth having;
and that of the pupils who are neither wholly industrious nor
wholly idle, and for whom a discipline based on psychological laws
may be genuinely useful.
This is the case with large bodies of soldiers or of prisoners,
for all associations of men, and for society as a whole. These
partial organisms, due to the constant relationships of a life
more or less in common, are in this respect reproductions of
society as a whole, just as a fragment of crystal reproduces the
characteristics of the unbroken crystal.[13]
[13] There is, however, some difference between the manifestation
of the activity of a group of men and that of the aggregate
society. Between psychology which studies the individual, and
sociology which studies the society, I think there is room for a
_collective psychology_, to study more or less defined groups.
The phenomena of these groups are analogous, but not identical
with those of the sociological body properly so called, according
as the union is more or less definite. Collective psychology has
its field of observation in all unions, however occasional, such
as the public street, the markets, workshops, theatres meetings,
assemblies, colleges, schools, barracks, prisons, and so forth.
Many practical applications of the data of collective psychology
might be given. An example will be found in a future chapter,
when I come to consider the psychology of the jury.
In the same way, from the standpoint of criminal sociology, we may
divide the social strata into three analogous categories--the
highest, which commits no crimes, organically upright, restrained
only by the authority of the moral sense, of religious sentiments
and public opinion, together with the hereditary transmission of
moral habits. This class, for which no penal code would be
necessary, is unfortunately very small; and it is far smaller if,
in
addition to legal and apparent criminality, we also take
into account that social and latent criminality through which many
men, who are upright so far as the penal code is concerned, are
not upright by the standard of morality.
Another class, the lowest, is made up of individuals opposed to
all sense of uprightness, who, being without education,
perpetually dragged back by their material and moral destitution
into the primitive forms of the brute struggle for existence,
inherit from their parents and transmit to their children an
abnormal organisation, adding degeneration and disease, an
atavistic return to savage humanity. This is the nursery of the
born criminals, for whom punishments, so far as they are legal
deterrents, are useless, because they encounter no moral sense
which could distinguish punishment by law from the risk which also
attends upon every honest industry.
Lastly we have the other class of individuals who are not born to
crime, but are not firmly upright, alternating between vice and
virtue, with imperfect moral sense, education and training, for
whom punishment may be genuinely useful as a psychological motive.
It is just this class which yields the large contingent of
occasional criminals, for whom punishments are efficacious if they
are directed in their execution by the axioms of scientific
psychology, and especially if they are aided by the social
prevention which reduces the number of opportunities of committing
crimes and offences.
Once again I must express my agreement with M. Garofalo, who, in
dealing with this subject,
insists on the necessity of
distinguishing between the different classes of criminals before
deciding as to the efficacy of punishments.
Yet this conclusion as to the very limited efficiency of
punishments, which is forced upon us by facts, and which, as
Bentham said, is confirmed by the application of each punitive
act, precisely because its previous application did not succeed in
preventing crime, is directly opposed to general public opinion,
and even to the opinion of jurists and legislators.
On the inception or the growth of a criminal manifestation,
legislators, jurists, and public think only of the remedies, which
are as easy as they are illusory, of the penal code, or of some
new Act of repression. Even if this were useful, which is very
problematical, it has the inevitable disadvantage of making men
ignore other remedies, far more profitable, albeit more difficult,
of a preventive and social kind. And this tendency is so common
that many of those who have dwelt upon or accepted the positive
movement of the new school, not long after they had admitted that
I was in the right, declared impulsively that ``the constant
commission of crime arises from the lack of timely repression,''
and that ``one of the chief causes of the growth of crime in Italy
is the mildness of our punishments.'' Or else they forgot to ask
themselves the elementary question of criminal sociology, whether
and how far punishments have a genuinely defensive force. This is
just what happens with pedagogues who enter upon long discussions
on the various methods and means of
education, without
asking themselves beforehand whether and how far education has the
actual power of modifying the temperament and character which
heredity stamps upon every individual.
These conclusions take us far beyond the limit of penal severity,
and at the same time they suffice to combat the objection commonly
raised against those who think, like ourselves, that repressive
justice ought to concern itself not with the punishment of past
crime, but with the prevention of future crime. For whilst the
advocates of severity, and those whom I will call the
``laxativists,'' virtually think (apart from a few platonic
statements) only of punishments as remedies of offences, we on the
other hand believe that punishments are merely secondary
instruments of social self-defence, and remedies ought to be
adapted to the actual factors of the offence. And since the
social factors are most capable of modification, so we say with
Prins that ``for social evils we require social cures.''
M. Tarde, then, was not quite accurate in his remark that my
conviction as to the very slight efficacy of punishments is a mere
consequence of my ideas on the anthropological and physical
character of crime, and that, ``on the contrary, the
preponderating importance which he has assigned to the social
causes logically debars him from accepting this conclusion.'' As
a matter of fact, punishment regarded as a psychological motive so
far as it is a legal deterrent, and as a physical motive so far as
it implies the confinement of the person condemned, would more
naturally belong, in abstract
logic, to the biological and
physical theory of crime. Whereas it is precisely because I
recognise the influence of social environment, in addition, that
experimental logic convinces me that punishment is not an
efficacious remedy of crime, unless forces are applied beforehand
to neutralise, or at any rate to counteract, the social factors of
crime.
And if this is not a new conclusion, as one of our critics
observes by way of reproach--as though it were not one of the
characteristics of truth to repeat itself persistently, however
much it may be forgotten or even opposed--we must nevertheless
remark that it is now repeated with a mass of new observations and
definite applications, which give it a force unknown to mere
logical deductions.
The classical school has concerned itself simply with mitigation
of punishment as compared with medival excess; and for this
reason, because every age has its own mission, it could not also
concern itself with the prevention of crimes, which is far more
useful and efficacious. A few isolated thinkers, it is true,
wrote a few bold and far-reaching pages on preventive methods in
opposition to the numerous volumes on punishment; but their words
had no effect upon criminalists and legislators, because science
had not yet undertaken the positive and methodical observation of
the natural factors of crime.
I will confine myself to a few examples, in order to show that
amongst practical men, as amongst public officials and
legislators, the illusion that punishments are the true panacea of
crime is always predominant.
Practical men declare that ``the prohibitive penal law ought to be
regarded as the first and most important of preventive laws.''
The prfets in their circulars, being concerned about the
increase of crime, put forward the most vigilant and severe
repression as a sovereign remedy. A counsellor of the French Cour
de Cassation writes that ``in a worthy system of social police
there is no better guarantee for order and safety than
intimidation.'' The Keeper of the Seals, in his report on French
penal statistics for 1876, speaking of the continued increase of
indecent assaults, comes to the conclusion that ``in any case,
only firm and energetic repression can avail against a lamentable
increase of crimes against morality.'' And more recently another
Keeper of the Seals ended his report on the statistics of 1826 to
1880 by observing that ``the growth of crime can only be opposed
by an incessantly vigorous repression.'' M. Tarde agreed with
this conclusion, saying that ``if crimes are only, as has been
said, railway accidents of a society travelling at full speed, it
must not be forgotten that, the faster the train, the stronger
must be the brake . . . and it is certain that such a state of
affairs demands an increase or a new departure of repression and
punishment.''
It may be admitted that our conclusion is not a novelty; but, as
Stuart Mill said, there are two ways of effecting useful
innovations, to discover what was not known before, or else to
repeat with new demonstrations the truths which had been
forgotten.
And this illusion as to the influence of punishments is so
widespread that it is well to inquire into its historic and
psychological arguments; for, as Spencer says, in order to decide
as to the value of an idea, it is useful to examine its genealogy.
We may pass by the foundation of primitive vengeance, which from
the age of private combats passed into the spirit and form of the
earliest penal laws, and still subsists as a more or less
unconscious and enfeebled residuum in modern society. We may also
pass by the hereditary effect of the traditions of medival
severity, which excite an instinctive sympathy for stern
punishment in connection with every crime.
But one of the main reasons of this tendency is an error of
psychological perspective, whereby men have forgotten the profound
differences of the ideas, habits, and sentiments of the various
social strata, concerning which I have spoken above. Through this
forgetfulness the honest and instructed classes confound their own
idea of the penal law, and the impression it makes upon them, with
the idea and the impression of the social classes from which the
majority of criminals are recruited. This has been remarked upon
by Beccaria, Carmignani, and Holtzendorff amongst the classical
criminalists, and by Lombroso and others of the new school who
have studied the slang and literature of criminals, which are
their psychological mirror. Again, it is forgotten that for the
higher classes, apart from their physical and moral repugnance
against crime, which is the most powerful repelling force, there
is the fear of public opinion, almost unknown amongst the classes
which have stopped short at a lower stage of human
evolution.
For the higher classes one example may suffice. It is the fact
observed upon by Mr. Spencer, that gambling debts and Stock
Exchange bargains are scrupulously discharged, though for them
there is neither penal obligation nor evidence in writing. And it
may be added that imprisonment for debt never promoted the
fulfilment of contracts, nor has its abolition discouraged it.
As for the lower classes, one visit to a prison suffices. There,
if you ask a prisoner why the punishment did not deter him from
the crime, you generally get no answer, because he has never
thought about it. Or else he replies, as I have often found, that
``if you were afraid of hurting yourself when you went to work,
you would give up working.'' These indeed are what one would
expect to be the feelings prevailing amongst the lower social
strata, to whom honest sentiments and ideas, which for us are
traditional and organic, come very late--just as Mr. Stanley
observed that the people in Central Africa are only now beginning
to employ stone guns, which in past ages were used in Europe.
Another fallacy which helps to strengthen confidence in
punishments is that the effect of exceptional and summary laws is
treated on the same basis as that of the ordinary codes, slow and
uncertain in their procedure, which saps all their force by the
chance of immunity, and the interval between the unlawful act and
its legal consequence.
Lombroso and Tarde, indeed, have confronted me
with
historic examples of vigorous and even savage repressions, whereby
it was possible to stamp out some epidemic crime. But these
examples are not conclusive, for I have shown that, as soon as
these exceptional repressions were at an end, as, for instance,
after the death of Pope Sixtus V., brigandage and other crimes
were persistently renewed. But my main rejoinder is this, that
these exceptional repressions depend upon the _jus belli_; and
therefore cannot enter into the ordinary and constant methods of
penal administration. This may not have the effect of an
extraordinary repression, secured by a somewhat unscrupulous
promptitude, which strikes innocent and guilty alike; and thus it
is impossible to treat as equal, or even to compare, the influence
of methods which are essentially different.
Another false comparison is drawn between the effective force of
various punishments, and their potentiality is confounded, whereas
it is necessary to distinguish the punishment of the written code
from that of the judge, and still more from that carried into
execution. In fact it is only natural that punishment should more
or less terrify the criminal who has been judged and is about to
be condemned; but this in no way proves its efficacy, which should
have been displayed by the menace of the law in guarding the
prisoner against the crime. Even with the death penalty, there
are many instances of condemned persons who, through congenital
insensibility, submit to it cynically. Moreover, for such as have
been overwhelmed with terror when the moment of execution arrived,
the utmost that this fact can prove is that
they are so
constituted as to give themselves up completely to the impression
of the moment, without the energy to resist it. In other words,
so long as the punishment is distant and uncertain, they were not
terrified, but having always yielded to the impression of the
moment, they yielded to the criminal impulse.
For other punishments, also, it is known that punitive methods,
even when not contrary to the law, as they sometimes are in Italy,
are always less stern than simple folk imagine when they read the
codes and the sentences. And criminals naturally judge of
punishments by their own experience, that is to say, in accordance
with their practical application, and not with the more or less
candid threats of the lawmaker.
If we add to vindictive feeling, historic traditions, oblivion of
bio-psychic differences of the social strata, the confounding of
exceptional laws and ordinary punishments, and of the varying
effective force of punishment, the attitude of the public mind and
the natural tendency of criminalists to think only of their two
syllogistic symbols of crime and punishment--if we further add the
easy-going idea of the multitude, that the inscribing of a law in
the statute-book is a sufficient remedy for social diseases, we
can readily understand how this exaggerated and illusory
confidence in punishment is so persistent, and crops up in every
theoretical or practical discussion, in spite of the strong
refutation which is daily afforded by facts and psychological
observation.
All human actions, like the actions of animals, are developed
between the two opposite poles of
pleasure and pain, by the
attraction of the former and the repulsion of the latter. And
punishment, which is one of the social forms of pain, is always a
direct motive in human conduct, as it is also an indirect guide,
by virtue of its being a sanction of justice, unconsciously
strengthening respect for the law. But still this psychological
truth, whilst it demonstrates the natural character of punishment,
and the consequent absurdity of abolishing it as absolutely void
of efficacy, does not destroy our conclusion as to the slight
efficacy of punishment as a counteraction of crime.
We have only to distinguish between punishment as a natural
sanction and punishment as a social sanction in order to see how
the really great power of natural punishment almost entirely
disappears in social punishment, which in all our systems is but a
sorry caricature.
The mute but inexorable reaction of nature against every action
which infringes her laws, and the grievous consequences which
inevitably follow for the man who has infringed them, constitute a
repression of the most efficacious kind, wherein every man,
especially in the earlier years of his life, receives daily and
never to be forgotten lessons. This is the discipline of natural
consequence, which is a genuine educational method, long since
pointed out by Rousseau, and developed by Spencer and Bain.
But in this natural and spontaneous form, the punishment derives
its whole force from the inevitable character of the consequences.
And it is one of the few observations of practical psychology
which have
been made and repeated by the classical students
of crime, that in punishment, and especially the punishment of
death, the certainty is more effectual than the severity. And I
will add that even a small uncertainty takes away from a pain
which we fear, much of its repelling force, whereas even a great
uncertainty does not destroy the attraction of a pleasure which we
are hoping for.
Here, then, we have a primary and potent cause of the slight
efficacy of legal punishments, in the picturing of the many
chances of escape. First there is the chance of not being
detected, which is the most powerful spring of all contemplated
crime: then the chance, in case of detection, that the evidence
will not be strong enough, that the judges will be merciful, or
will be deceived, that judgment may be averted amidst the
intricacies of the trial, that clemency may either reverse or
mitigate the sentence. These are so many psychological causes
which, conflicting with the natural fear of unpleasant
consequences, weaken the repellent force of legal punishment,
whilst they are unknown to natural punishment.
There is also another psychological condition which, undermining
even the force of natural punishment, almost entirely destroys the
power of social punishment; and that is improvidence. We see, in
fact, that even the most certain natural consequences are defied,
and lose most of their power to guard an improvident man from
anti-natural and dangerous actions. Now in regard to legal
punishment, even apart from passionate impulse, it is known that
criminals, occasional and other, are specially improvident, in
common
with savages and children. This weakness is
conspicuous enough in the lower and less instructed classes, but
amongst criminals it is a genuine characteristic of psychological
infirmity.
Now, whilst a very slight force is sufficient to produce very
great and constant effects, when it acts in harmony with natural
tendency and environment, every process, on the other hand, which
is opposed to the natural tendencies of man, or which does not
follow them closely, encounters a resistance which triumphs in the
last resort.
Everyday life gives us many examples. The university student,
when he gambles, risks on a single card the last remnant of his
allowance, and prepares for himself a thousand privations. Miners
and workmen at dangerous trades refuse to take warning by the
sight of comrades whom they have seen dying or repeatedly attacked
by disease. M. Despine related that, during the cholera of 1866,
at Bilbao, there were some who set up an imitation of the disease
in order to obtain charitable relief, though in several cases
death ensued. M. Fayet, in an essay on the statistics of accused
persons in France, extending over twenty years, remarked that
specific and proportionately greater criminality was displayed by
notaries and bailiffs, who knew better than any one else the
punishments fixed by law. And in the statistics of capital
punishment at Ferrara, during nine centuries, I discovered the
significant fact that there is a succession of notaries executed
for forgery, frequently at very short intervals, in the same town.
This attests the truth of the observation made by Montesquieu and
Beccaria,
as against the deterrent power of the death
penalty, for men grow accustomed to the sight; and this again is
confirmed by the fact mentioned by Mr. Roberts, a gaol chaplain,
and M. Brenger, a magistrate, that several condemned men had
previously been present at executions, and by another fact
mentioned by Despine and Angelucci, that in the same town, and
often in the same place, in which executions had been carried out,
murders are often committed on the same day.
A man does not change his identity; and no penal code, whether
mild or severe, can change his natural and invincible tendencies,
such as inclination to pleasure and persistent hope of impunity.
Let us also observe that, as Mill said, the permanent efficacy of
any measure in the spheres of politics, economy, and
administration, is always inversely proportional to its force and
suddenness. Now punishment does not stand the test even of this
sociological law, for in its essence it is only the primitive
reaction of force against force. It is true that, as Beccaria
said, the classical school has always aimed at rendering social
reaction against crime less violent; but that is not enough.
Henceforward, if we are to adapt ourselves to psychological and
sociological laws, the development of our defensive administration
must tend to render this social reaction less direct. If the
struggle for existence is always to remain the supreme law of
living creatures, yet it is not necessary that it should always be
developed in the violent forms of primitive humanity. On the
contrary, one of the results of social progress is to make the
struggle for existence less violent and less direct.
In the same way, the continuous struggle between society and
criminals, instead of being a physical and social force, directly
opposed to a physical individual force, should rather become an
indirect system of psychical forces. Penal law in society has the
same qualities as education in the family and pedagogy in schools.
All the three were once dominated by the idea of taming human
passions by force; the rod was supreme. In course of time it was
perceived that this produced unexpected results, such as violence
and hypocrisy, and then men thought fit to modify their
punishments. But in our own days schoolmasters see the advantage
of relying solely on the free play of tendencies and bio-
psychological laws. Similarly the defensive function of society,
as Romagnosi said, in place of being a physical and repressive
system, ought to be a moral and preventive system, based on the
natural laws of biology, psychology, and sociology.
Force is always a bad remedy for force. In the Middle Ages, when
punishments were brutal, crimes were equally savage; and society,
in demoralising rivalry with the atrocity of criminals, laboured
in a vicious circle. Now, in the lower social grades, the brutal
man, who often resorts to violence, is in his turn frequently the
victim of violence; so that, amongst criminals, a scar is somewhat
of a professional distinction.
To sum up, our doctrine as to the efficacy of punishments does not
consist, as some critics too sparing of their arguments have
maintained, in an absolute negation, but rather and especially in
objecting to the
traditional prejudice that punishments are
the best and most effectual remedies of crime.
What we say is this. Punishment by itself, as a means of
repression, possesses a negative rather than a positive value; not
only because it has not the same influence on all anthropological
types of criminals, but also because its use is rather to preclude
the serious mischief which would result from impunity than to
convert, as some imagine that it can, an anti-social into a social
being. But impunity would lead to a demoralisation of the popular
conscience in regard to crimes and offences, to an increase of the
profound lack of foresight in criminals, and to the removal of the
present impediment to fresh crimes during the term of
incarceration.
It is the same with education, the modifying power of which is
commonly exaggerated. Education, though it has an enduring
influence on children, and is therefore more effectual than
punishment, is far more serviceable in eliminating anti-social
tendencies, whereof we all possess the germs, than in any supposed
creation of social tendencies and forces which were not present
from birth.
Thus, whilst the consequences of impunity and lack of education
are serious and mischievous, still this does not prove conversely
that punishment and education have in reality so positive an
influence as is commonly attributed to them.
It is precisely on the ground of this negative, yet real efficacy
of punishments, especially whilst they are being carried out,
that, whilst we appreciate the mitigation of punitive discipline
which has been
achieved by the classical school, we
believe, on the other hand, that their abbreviation of the term of
punishments is altogether mistaken and dangerous. We admit that
punishment ought not to be an arbitrary and inhuman torture, and
for this reason we have no sympathy with the system of solitary
confinement, now so much in fashion with the classical jurists and
prison authorities, precisely because it is inhuman, as well as
unwise and needlessly expensive.
It is a psychological absurdity and a social danger, which
nevertheless underlies the new Italian penal code, that punishment
ought to consist more and more in a short isolation of the
prisoner. For, setting aside the well-known results of short
punishments, such as corruption and recidivism, it is evident that
in this way punishment is deprived of its main element of negative
efficiency against crime, as well as of its effect in preventing
crime during the incarceration of the criminal.
II.
Since punishments, instead of being the simple panacea of crime
which popular opinion, encouraged by the opinions of classical
writers on crime and of legislators, imagine them, are very
limited in their deterrent influence, it is natural that the
criminal sociologist should look for other means of social defence
in the actual study of crimes and of their natural origin.
We are taught by the everyday experience of the
family, the
school, associations of men and women, and the history of social
life, that in order to lessen the danger of outbreaks of passion
it is more useful to take them in their origin, and in flank, than
to meet them when they have gathered force.
Bentham relates that in England the delays caused by hard-drinking
couriers, who used to be heavily fined without any good result,
were obviated by combining passenger traffic with the postal
service. Employers of labour secure industry and the most
productive work far more easily by offering a share of the
realised profits than by a system of fines. In the German
universities, academic jealousies and intolerance have been in
great measure overcome by paying the professors in proportion to
the number of their pupils, so that the Faculties find it to their
interest to engage and encourage the best professors, in order to
attract as many students as possible. Thus the activity and zeal
of professors, magistrates, and officials would be stimulated if
their remuneration depended not only on the automatic test of
seniority, but also on the progress displayed by publications,
sentences not reversed, settlements not cancelled, and the like.
It is better to regulate the disturbing restlessness of children
by timely diversions rather than by attempting to repress them in
a manner injurious to their physical and moral health. So in
lunatic asylums and prisons, work is a better means of order and
discipline than chains and castigation. In brief, we obtain more
from men by consulting their self-respect and interests than by
threats and restraint
If the counteraction of punishment must inevitably be opposed to
criminal activity, still it is more conducive to social order to
prevent or diminish this activity by means of an indirect and more
effective force.
In the economic sphere, it has been observed that when a staple
product fails, recourse is had to less esteemed substitutes, in
order to supply the natural wants of mankind. So in the criminal
sphere, as we are convinced by experience that punishments are
almost devoid of deterrent effect, we must have recourse to the
best available substitutes for the purpose of social defence.
These methods of indirect defence I have called _penal
substitutes_. But whereas the food substitutes are as a rule only
secondary products, brought into temporary use, penal substitutes
should become the main instruments of the function of social
defence, for which punishments will come to be secondary means,
albeit permanent. For in this connection we must not forget the
law of criminal saturation, which in every social environment
makes a minimum of crime inevitable, on account of the natural
factors inseparable from individual and social imperfection.
Punishments in one form or another will always be, for this
minimum, the ultimate though not very profitable remedy against
outbreaks of criminal activity.
These penal substitutes, when they have once been established in
the conscience and methods of legislators, through the teaching of
criminal sociology, will be the recognised form of treatment for
the social factors of crime. And they will also be
more
possible and practical than that universal social metamorphosis,
direct and uncompromising, insisted on by generous but impatient
reformers, who scorn these substitutes as palliatives because
humanitarian enthusiasm causes them to forget that social
organisms, like animal organisms, can be only partially and
gradually transformed.
The idea of these penal substitutes amounts, in short, to this.
The legislator, observing the origins, conditions, and effects of
individual and collective activity, comes to recognise their
psychological and sociological laws, whereby he will be able to
obtain a mastery over many of the factors of crime, and especially
over the social factors, and thus secure an indirect but more
certain influence over the development of crime. That is to say,
in all legislative, political, economic, administrative, and penal
arrangements, from the greatest institutions to the smallest
details, the social organism will be so adjusted that human
activity, instead of being continually and unprofitably menaced
with repression, will be insensibly directed into non-criminal
channels, leaving free scope for energy and the satisfaction of
individual needs, under conditions least exposed to violent
disturbance or occasions of law-breaking.
It is just this fundamental idea of penal substitutes which shows
how necessary it is that the sociologist and legislator should
have such a preparation in biology and psychology as Mr. Spencer
justly insisted on in his ``Introduction to Social Science.'' And
it is the fundamental idea rather than the substitutes themselves
that we should bear in mind if we
would realise their
theoretical and practical value as part of a system of criminal
sociology.
As for the efficacy of any particular penal substitute, I readily
admit, in some sense at least, the partial criticisms which have
been passed upon them. Apart from such as simply say that they do
not believe in the use of alternatives to punishment, and such as
confine themselves to the futile question whether this theory
belongs to criminal science or to police administration, a
majority of criminal sociologists have now definitely accepted the
doctrine of penal substitutes. This theory is accepted, not as an
absolute panacea of crime, but, as I have always stated it, in the
sense of a combination of measures analogous to penal repression;
in place of trusting solely to repression for the defence of
society against crime.
Let us take note of a few examples.
I. _In the Economic Sphere_.--Free Trade (apart from the
temporary necessity of protecting a particular manufacturing or
agricultural industry), by preventing famines and exceptional high
prices of and taxes on food, eliminates many crimes and offences,
especially against property.--Unrestricted emigration is a safety-
valve, especially for a country in which this phenomenon, assuming
large proportions, carries off many persons who are easily driven
to crime by wretchedness, or by their unbalanced energy. Thus the
number of recidivists has diminished in Ireland, not by virtue of
her prison systems, but by emigration, which reached forty-six per
cent. of released prisoners. In Italy, also, there has been a
decrease
of crime since 1880, owing to other causes, such
as mild winters and plentiful harvests, but also through a vast
increase of emigration.--Smuggling, which for centuries resisted
extremely harsh punishments, such as amputation of the hand, and
even death, and which still resists prison and the fire-arms of
the revenue officers, is suppressed by the lowering of the import
tariff, as M. Villerm has shown in the case of France. So
that everyday facts justify the system of Adam Smith, who said
that the law which punished smuggling, after creating the
temptation, and which increased the punishment when it increased
the temptation, was opposed to all justice; whilst Bentham, on the
contrary, departing from his maxim that the punishment ought to be
dreaded more strongly than the offence attracted, called for the
stern repression of smuggling.--The system of taxation which
touches wealth and visible resources instead of the prime
necessaries of life, and which is proportional to the taxpayer's
income, diminishes the systematic frauds which no punishment
availed to stop, and it will also abolish the arbitrary and
exaggerated fiscal traditions which have been the cause of
rebellions and outrages. In fact, Frgier describes the
criminal industries which are called into existence by _octrois_,
and which will disappear with the abolition of these absurd and
unjust duties. And whilst M. Allard demonstrated that a decrease
of taxes on necessaries would have beneficial effects, not only in
economic affairs but also in respect of commercial frauds, the
Report on French Criminal Statistics for 1872 calmly continued to
call for more severe repression of such frauds. To this M.
Mercier replied that if the cause--that is to say,
disproportionate taxes--were not removed, it would be impossible
to prevent the effects.--Immunity from taxation for the minimum
necessary to existence, by preventing distraint, and the
consequent diminution of small properties, which means the
increase of the very poor, will obviate many crimes, as we see
from the agrarian conditions in Ireland. Thus there is a demand
in Italy for the inalienability of small properties, as in America
under the Homestead Exemption Law.--Public works, during famine
and hard winters, check the increase of crimes against property,
the person, and public order. For instance, during the scarcity
of 1853-5 in France, there was no such enormous increase of theft
as during the famine of 1847, simply because the Government set up
vast relief works in the winter months.
The taxes and other indirect restrictions on the production and
sale of alcohol are far more efficacious than our more or less
enormous gaols. The question of pronounced and chronic
drunkenness has increased in gravity, owing to its effect upon the
physical and moral health of the people.
In France the average consumption of wine, estimated at 62 litres
(13.64 gallons) per head in 1829, exceeded 100 litres in 1869; and
in Paris the average of 120 litres in 1819-30, reached 227 litres
in 1881. The average yearly consumption of alcohol in France rose
from .93 in 1829 to 3.24 in 1872, and 3.9 in 1885, the rates in a
few towns being still higher. The total manufacture of alcohol in
France (95 per cent. of
which is consumed in the form of
drink) rose from 479,680 hectolitres in 1843 to 1,309,565 in 1879,
and 2,004,000 in 1887. Simultaneously, we have seen that there
was an increase of crimes and offences in France, suicides in
particular having increased from 1,542 in 1829 to 8,202 in 1887.
Moreover I have shown by a special table (_Archivio di
Psichiatria_) that in France, despite a certain inevitable
variation from year to year, there is a manifest correspondence of
increase and decrease between the number of homicides, assaults,
and malicious wounding, and the more or less abundant vintage,
especially in the years of extraordinary variations, whether of
failure of the vintage (1853-5, 1859, 1867, 1873, 1878-80),
attended by a remarkable diminution of crime (assaults and
wounding), or of abundant vintages (1850, 1856-8, 1862-3, 1865,
1868, 1874-5) attended by an increase of crime.
I was also the first to show that in the vintage months there is
an increase of occasional crimes and offences against the person,
owing to that connection between drink and crime which had already
been remarked upon by M. Pierquin amongst others, and illustrated
by the newspaper reporters on the days which follow Sundays and
holidays.
But apart from their natural variation, the connection between
drink and crime is definitely established. Every day we have the
confirmation of Morel's statement, that ``alcoholism has produced
a demoralised and brutalised class of wretched beings,
characterised by an early depravation of instincts, and by
indulgence in the most immoral and dangerous actions.'' It is
useless to quote again in this place the data of psycho-
pathology and legal medicine, or those of prison statistics
relating to imprisoned drunkards, or to tavern brawls as the
proved causes of crime.
Nevertheless it is a fact that the relation of cause and effect
between drink and crime has recently been denied, with the aid of
arguments based upon statistics. M. Tammeo opened the discussion
by observing that the countries of Europe and the provinces of
Italy distinguished by the largest consumption of alcohol, show
lower ratios under the worst crimes of violence. He gave to his
remark a relative and limited value, for he only denied that the
abuse of liquor was the most active cause of crime. After him M.
Fournier de Flaix, maintaining the same proposition with the same
statistical arguments, and admitting that ``alcohol is a special
scourge for the individual who indulges in it,'' yet concluded
that ``alcoholism is not a scourge which menaces the European
race.'' And he repeated that the nations which consumed the
greatest quantity of alcohol show a slighter frequency of crime,
especially against the person. Lastly M. Colajanni enlarged upon
the same proposition, using the statistical data so fully set out
by M. Kummer, and drew a still more positive conclusion, that
``there is a lack of constancy, regularity, and universality in
the relations, coincidence, and sequence, as between alcoholism
and crime and suicide; so that it is impossible to establish any
statistical relation of cause and effect between these
phenomena.''
Passing over the grave errors of fact in M. Colajanni's brochure,
I will only observe that this pro
position is a pure
misapprehension of statistical logic.
If we once admit (and unfortunately it cannot be denied) the bad
influence of alcohol on bodily and mental health, in the form of
spirits as well as of wine--as to which it is not correct to say
that the southern departments are not consumers of alcohol--it
cannot be maintained that alcohol, which is physically and morally
injurious to individuals, is not hurtful to nations, which are but
aggregates of individuals.
There is an easy answer to the statistical arguments. (1) A
symmetrical and continuous agreement of figures is never found in
any collection of statistics, for in all that concerns a society
the intervention of individual, physical, and social causes is
inevitable. (2) A negative conclusion from these partial and
natural disagreements (for it is especially true in biology and
sociology that every rule has its exceptions, due to intervening
causes) would only be justified if it had been maintained that
alcoholism is the sole and exclusive cause of crime. But as this
has never been asserted by anybody, all the statistical arguments
of Fournier and Colajanni are based on a misapprehension. And
unfortunately they do not destroy the link of causality between
drink and crime. This connection is occasional, in assaults,
wounding, and homicide in acute alcoholism. It is habitual, in
the case of chronic alcoholism, as in crimes against property, the
person, morality, and public officers. And this in spite of the
relatively low figures, though lower than the facts warrant,
con
tained in the general statements, apart from special and
scientific inquiries into alcoholism as a direct and manifest
cause of crime and suicide.
I wrote as early as 1881 that alcoholism, prior to its becoming a
cause, is the effect of wretched social conditions in the poorer
classes; and that to the one-sided simplicity of economic causes
it is necessary to add certain bio-psychical conditions and
conditions of physical environment, which go far to determine the
geographical distribution of spirit-alcoholism (chronic and more
serious, in northern countries and provinces) and wine-alcoholism
(acute and less deep-seated, in the countries and provinces of the
south).
It was therefore natural that indirect measures against alcoholism
should have been resorted to long ago, such as the raising of the
tax on alcoholic drinks, and the lowering of that on wholesome
beverages, such as coffee, tea, and beer; strict limitation of the
number of licenses; increased responsibility of license-holders
before the law, as in America; the expulsion of tipsy members from
workmen's societies; the provision of cheap and wholesome
amusements; the testing of wines and spirits for adulteration;
better organised and combined temperance societies; the
circulation of tracts on the injurious effects of alcohol; the
abolition of certain festivals which tended rather to
demoralisation than to health; discouragement of the custom of
paying wages on Saturday; the establishment of voluntary
temperance homes, as in America, England, and Switzerland.
North America, England, Sweden and Norway,
France, Belgium,
Holland, and Switzerland have applied remedies against drunkenness
(to the length of a State monopoly of drink in Switzerland); but
with too much zeal for public revenue, and, under the pretext of
public health, almost exclusively framed with a view to duties on
manufacture, distribution, and consumption. Yet these duties are
quite inadequate by themselves, and may even tend to the injury of
the physical and moral health of the nation, the increase of
price, leading to frauds and adulteration.
Penal laws against drunkenness, naturally resorted to in all
countries, are far from being effectual. There is so far no
system of direct and indirect measures against alcoholism, duly
co-ordinated, beyond taxation and punishment. And we perceive, as
for instance in France, in spite of the repressive law introduced
by my distinguished friend Senator Roussel (January, 1873), and in
spite of the extremely high duties, which were doubled in 1872 and
1880, that alcoholism persists with a terrible and fatal increase.
So it is, more or less, in every country still, in spite of duties
and punishments.
The irregularity of wages, and the deceitful vigour imparted by
the first recourse to alcohol, the poverty and excessive toil of
the working classes, insufficiency of food, inherited habits, and
the lack of efficacious preventive measures, are influences which
prevent the working man from resisting this scourge; and no fiscal
or repressive law, acting solely by direct compulsion, will ever
be able to paralyse these natural tendencies, which can only be
weakened by indirect
measures. On the other hand, when we
remember that habitual intoxication, so common in medival days
amongst the nobles and townsfolk, has grown less and less frequent
in those classes (aided by the introduction and rapid diffusion of
coffee since the time of Louis XIV.), it is possible to hope that
the improvement of economic, intellectual, and moral conditions
amongst the populace will gradually succeed in modifying this
terrible plague of drink, which cannot be cured all at once.
To continue our illustrations of penal substitutes, we see that
the substitution of metallic money for a paper medium decreases
the number of forgers, who on the contrary had defied penal
servitude for life. False money is more easily detected than a
spurious note.[14]--Money dealers and dealers in precious stones
have done more than any punishment to check the crime of usury, as
was shown in the case of Spain, after her American conquests;
whereas medival punishments never prevented the recrudescence
of usury in one form or another. Popular and Agricultural Credit
Banks, which are practically within the reach of all, are more
efficacious against usury in our own days than the special
repressive laws enacted once more in Germany and Austria, under
the influence of the old illusion.--With the diminution of
interest on the public funds the stream of capital has been
diverted into commerce, manufactures, and agriculture, thus
warding off stagnation, with the bankruptcies, forgeries,
frauds, &c., which result therefrom.--The adjustment of salaries
to the needs of public officials, and to general economic
conditions, stems the tide of corruption and embezzlement, which
were partly due to their concealed poverty.--Limited hours of duty
for the responsible services on which the safety of the public
depends, as for instance in railway stations, are far more
serviceable in preventing accidents than the useless punishment of
those who are guilty of manslaughter.--High-roads, railways, and
tramways disperse predatory bands in rural districts, just as wide
streets and large and airy dwellings, with public lighting and the
destruction of slums, prevent robbery with violence, concealment
of stolen goods, and indecent assaults.--Inspection of workshops
and shorter hours for children's labour, with their
superintendence of married women, may be a check on indecent
assaults, which penal servitude does not prevent.--Cheap workmen's
dwellings, and general sanitary measures for houses both in urban
and rural districts, care being taken not to crowd them with poor
families, tend to physical health, as well as to prevent many
forms of immorality.--Co-operative and mutual societies, provident
societies and insurance against old age, funds for sick and infirm
workmen, employers' liability for accidents during work, from
machinery or otherwise; popular savings' banks, charity
organisation societies and the like, obviate a large number of
offences against property and the person much better than a penal
code.--I have maintained in the Italian Parliament that the reform
of religious
charities, which in Italy represent funds to
the amount of two milliards, might lead to the prevention of
crime.--Measures for the discouragement of mendicity and vagrancy,
above all agricultural colonies, as in Holland, Belgium, Germany,
and Austria, would be the best penal substitute for the very
frequent offences committed by vagabonds. Thus it may be
concluded that a prudent social legislation, not stopping short at
mere superficial and perfunctory reforms, might constitute a
genuine code of penal substitutes, which could be set against the
mass of criminal impulses engendered by the wretched conditions of
the most numerous classes of society.
[14] Coiners and forgers of notes constitute .09 per cent. of the
total of condemned persons in France, and .04 per cent. in
Belgium; but they reach .4 per cent. in Italy, on account of the
greater circulation of banknotes.
II. _In the Political Sphere_.--For the prevention of political
crime, such as assassination, rebellion, conspiracies, civil war,
arbitrary repression and prevention by the police are powerless;
there is no other means than harmony between the Government and
the national aspirations. Italy has been a conspicuous example of
this, for under the rule of the foreigner, neither the scaffold
nor the galleys could hinder political outrages, which have
disappeared with national independence. So with Ireland and
Russia. Germany, which believed that it could stamp out socialism
by exceptional penal laws, discovered its mistake.--For so-called
press offences (which are either ordinary offences committed by
the aid of the press, or are not offences at all), nothing but
freedom of opinion can render attacks and provocations of a
political type less frequent.--Respect for the law spreads through
a nation by the example on the part of the governing classes and
authorities of constant
respect for the rights of
individuals and associations, far better than by policemen and
prisons.--Electoral reform adapted to the condition of a country
is the only remedy against electoral offences.--Similarly, in
addition to the economic reforms already indicated, political and
parliamentary reforms are much more serviceable than the penal
code in preventing many offences of a social and political type,
provided that a more real harmony has been established between a
country and its lawful representation, and that the latter is
freed from the occasions and the forms which lead to its abuse, by
removing technical questions from injurious political influences,
and giving the people a more direct authority over public affairs,
including the _referendum_.--Finally, that great mass of crimes,
isolated or epidemic, evolved by unsatisfied needs and the neglect
of separate divisions of a country, which differ in climate, race,
traditions, language, customs, and interests, would be largely
eliminated if we were to dispense with the vague folly of
political symmetry and bureaucratic centralisation, and in their
place to adapt the laws to the special features of the respective
localities. National unity in no way depends upon legislative and
administrative uniformity, which is merely its unhealthy
exaggeration. It is indeed inevitable that laws, which in our day
merely represent a mode of contact between the most varied moral,
social and economic conditions of different localities, should
always be inadequate to social needs--too restricted and slow in
action for one part of the country, too sweeping and premature for
another part, just as the
average convict's garb is too
long for those who are short, and too short for those who are
tall. Administrative federation with political unity (_e pluribus
unum_) would furnish us with an aggregate of penal substitutes,
restoring to each part of the social organism that freedom of
movement and development which is a universal law of biology and
sociology--for an organism is but a federation too lightly
appreciated by the advocates of an artificial uniformity, such as
ends by conflicting with unity itself.
III. _In the Scientific Sphere_.--The development of science,
which creates fresh instruments of crime, such as fire-arms, the
press, photography, lithography, new poisons, dynamite,
electricity, hypnotism, and so forth, sooner or later provides the
antidote also, which is more efficacious than penal repression.--
The press, anthropometric photography of prisoners, telegraphy,
railways, are powerful auxiliaries against crime.--Dissection and
the progress of toxicology have decreased the number of poisoning
cases; and experience has already proved that ``Marsh's
preparation'' has rendered poisoning by arsenic, once so common,
comparatively rare.--A similar process has recently been suggested
as a means of detection in cases of forgery, for when documents
are exposed to iodine vapour, effaced or altered writing is
restored.--Women doctors will diminish the opportunities of
immorality.--The free expression of opinion will do more to
prevent its possible dangers than trials of a more or less
scandalous kind.--Piracy, which
was not extirpated by
punishments which are now obsolete, is disappearing under the
effects of steam navigation.--The spread of Malthusian ideas
prevents abortion and infanticides.[15]--Systematic bookkeeping,
by its clearness and simplicity, obviates many frauds and
embezzlements, which were encouraged by the old complicated
methods.--Cheques, by avoiding the necessity of frequent
conveyance of money, do more to prevent theft than punishments can
do.--The credentials given by some banks to their clerks, whose
duty it is to witness the signature of the actual debtor, prevent
the falsification of bills.--Certain bankers have adopted the
practice of taking an instantaneous photograph of every one
presenting cheques for large amounts.--Safes, bolts, and alarm-
bells, are a great security against thieves.
--As a
preventive of murder in railway carriages, it has been found that
alarm signals and methods of securing the carriage-doors from the
inside, are more effectual than penal codes.
[15] No doubt there may be a difference of opinion on this subject
in France, where public opinion is too much exercised over the
problem of depopulation. I agree with M. Varigny (``La Thorie
du Nombre,'' _Revue des Deux Mondes_, Dec. 15, 1890) that the
population of a country is not the sole, or even the principal
consideration. Apart from physical characteristics (race),
intellectual and moral qualities, and the productiveness of the
soil on which M. Varigny dwells, we must take into account, as it
seems to me, the unquestionable law by virtue of which the
struggle for existence, amongst individuals as amongst nations,
becomes gradually less vehement and direct. War, which is an
everyday matter with savages, grows constantly more rare and
difficult. The varying social and international conscience of
civilised humanity is not to be neglected, and it must be reckoned
with as a positive factor in considering the destiny of nations.
Men continue to speak of the perils of war (in which numbers stand
for a great deal, but are not the exclusive element) as though the
social conscience of our own day were still the same as that of
the Middle Ages. In several respects, on the other hand, the
thinner population of France is one cause of its wealth, and
therefore of its power. Germany has a more numerous, but also a
poorer population. And I do not believe that the actual power of
nations, on which their future depends, consists in loading a
people with arms after enfeebling it by military expenditure,
which from the year 1880 has indicated a distinct epidemic mania
on the continent of Europe.
IV. _In the Legislative and Administrative Sphere_.--Wise
testamentary legislation prevents murders through the impatient
greed of next-of-kin, as in France during a former age, with what
was known as ``succession powder.''--A law to facilitate the
securing of paternal assent for the marriage of children (as
suggested by Herschel in his ``Theory of Probabilities'') in
countries which require the assent of both parents, and for
affiliation and breach of promise of marriage, with provision for
children born out of wedlock, are excellent as against
concubinage, infanticide, abortion, exposure of infants, indecent
assaults, and murders by women abandoned after seduction. On this
head Bentham said that concubinage regulated by civil laws would
be less mischievous than that which the law does not recognise but
cannot prevent.--Cheap and easy law is a preventive of crimes and
offences against public order, the person and property, as I have
already said.--The ancient Italian institution of Advocate of the
Poor, if substituted for the present illusory assistance by the
courts, would prevent many acts of revenge. So also would a
strict and speedy indemnity for the victims of other men's crimes,
intrusted to a public minister when the injured person is not able
to resort to the law; for as I have maintained, with the approval
of sundry criminal sociologists, civil responsibility for crime
ought to be as much a social obligation as penal
responsibility, and not a mere private concern.--Simplification of
the law would prevent a large number of frauds, contraventions,
&c., for, apart from the metaphysical and ironical assertion that
ignorance of the law excuses no man, it is certain that our forest
of codes, laws, decrees, regulations and so forth, leads to
endless misapprehensions and mistakes, and therefore to
contraventions and offences.--Commercial laws on the civil
responsibility of directors, on bankruptcy proceedings and the
registration of shareholders, on bankrupts' discharges, on
industrial and other exchanges, would do more than penal servitude
to prevent fraudulent bankruptcy.--Courts of honour, recognised
and regulated by law, would obviate duels without having recourse
to more or less serious punishments.--A well organised system of
conveyancing checks forgery and fraud, just as registration
offices have almost abolished the palming and repudiation of
children, which were so common in medival times. Deputy
Michelin, in order to discourage bigamy, proposed in 1886 to
institute in the registers of births for every commune a special
column for the civil standing of each individual, so that any one
who contemplated marriage would have to produce a certificate from
this register, and thus would be unable to conceal a previous
marriage which had not been dissolved by death or divorce.--The
form of indictment by word of mouth in penal procedure has
prevented many calumnies and false charges.--Foundling and orphan
homes, or, still better, some less old-fashioned substitute, such
as lying-in hospitals and home attendance for young
mothers, might do much to prevent infanticide and abortion, which
are not checked by the severest punishment.--Prisoners' aid
societies, especially for the young, might be useful as penal
substitutes, although much less so than is generally alleged, with
plenty of eloquence and little practical work. There is always
this strong objection to them, that we ought to succour workmen
who continue honest in spite of their wretchedness before those
who have been in prison; and again, in place of bestowing
patronage on released prisoners without distinction, many of whom
are incorrigible, we ought to select the occasional criminals and
criminals of passion, who alone are capable of amendment; and
assisting them we should avoid anything like police formalities.
As a matter of fact it appears that, even in England, where these
societies are most active, their intervention, like all direct
charity, is too far below the needs of those for whom provision is
necessary.
V. _In the Sphere of Education_.--It has been proved that mere
book education, whilst it is useful in rendering certain gross
frauds more difficult, in extending a knowledge of the laws, and
above all in diminishing improvidence, so characteristic of the
occasional criminal, is far from being the panacea of crime which
people imagined when they found in the criminal statistics a large
proportion of illiterate prisoners. It must also be said that
schools which are not closely inspected are frequently hotbeds of
immorality. It is necessary, therefore, to rely on the influence
of a wider education, limited
though this may be in its
turn. I do not mean a mechanical instruction in moral maxims,
appealing to the intelligence without reaching the feelings, but
rather of the examples afforded by every kind of social
institution, by the government and the press, by the school of the
stage and of public entertainments.--It would be well, however, to
abolish certain vulgar and sensual entertainments, and to
substitute for them wholesome amusements and exercises, public
baths, properly superintended, and so built as to render private
meetings impossible, cheap theatres, and so forth. Thus the
prohibition of cruel spectacles, and the suppression of gambling
houses, are excellent penal substitutes.--The experimental method
in the teaching of children, which applies the laws of physio-
psychology, according to the physical and moral type of each
pupil, and by giving him less of archaology, and more knowledge
serviceable in actual life, by the mental discipline of the
natural sciences, which alone can develop in him a sense of the
actual, such as our classical schools only enfeeble, would adapt
men better for the struggle of existence, whilst diminishing the
number of those left without occupation, who are the candidates of
crime.--Many of the causes of crime would be nipped in the bud by
checking degeneration through physical education of the young, as
well as by preventing demoralisation by means of the education of
abandoned children, at such institutions as the workhouse, ragged
and industrial schools, so well developed in England--or, still
better, by the boarding out of children, so as to avoid over-
crowding.--One class of inducements to crime
would be
eliminated by restrictions imposed on scandalous publications
which concern themselves exclusively with crime, having no other
object than to trade upon the most brutal passions, and which are
allowed to exist under an abstract conception of liberty, save
that the responsible conductors are punished when the evil has
been done.--Similarly there ought to be some restriction upon the
right of admission to police-courts and assizes, where our women
hustle each other as the Roman women of the decline scrambled to
be present at the imperial circus-shows, and where our young men
and our hardened criminals receive lessons in the art of
committing crimes with greater smartness and precaution.
The instances which I have given, and which might be multiplied
into a preventive code as long as the penal code, prove to
demonstration how large a part is played by social factors in the
genesis of crime, and especially of occasional crime. But they
prove still more clearly that the legislator, by modifying these
causes, can influence the development of crime within limits
imposed by the competition of other anthropological and physical
factors. Quetelet was right, therefore, when he said in this
connection, ``Since the crimes committed every year seem to be the
necessity of our social organisation, and their number cannot be
diminished if the causes to which they are due cannot be modified
in a preventive sense, it behoves legislators to recognise these
causes, and to eliminate them as far as possible. They must frame
the budget of crime as they frame that of the national
revenue and expenditure.''
It must nevertheless be borne in mind that all this will have to
be done apart from the penal code; for it is true, however
strange, that history, statistics, and direct observation of
criminal phenomena prove that penal laws are the least effectual
in preventing crime, whilst the strongest influence is exercised
by laws of the economic, political, and administrative order.
In conclusion, the legislator should be convinced by the teaching
of scientific observation that social reforms are much more
serviceable than the penal code in preventing an inundation of
crime. The legislator, on whom it devolves to preserve the health
of the social organism, ought to imitate the physician, who
preserves the health of the individual by the aid of experimental
science, resorts as little as possible, and only in extreme cases,
to the more forcible methods of surgery, has a limited confidence
in the problematic efficiency of medicines, and relies rather on
the trustworthy processes of hygienic science. Only then will he
be able to avoid the dangerous fallacy, ever popular and full of
life, which Signor Vacca, Keeper of the Seals, expressed in these
words: ``The less we have recourse to preventive measures, the
more severe ought our repression to be.'' Which is like saying
that when a convalescent has no soup to pick up his strength, we
ought to administer a drastic drug.
It is precisely on this point that the practical, rather than the
merely theoretical, differences between the positive and the
classical schools of penal law become evident. Whilst we believe
that social reforms
and other measures suggested by a study
of the natural factors of crime are most effective in preventing
crime, legislators, employing the _a{sic} priori_ method of the
classical school, have for many years past been discussing
proposed penal codes, whilst they permit criminality to make
steady progress. It is another case of _Dum Rom consulitur,
Saguntum expugnatur_.
And when the legislators find their Byzantine discussions on the
``juridical entities'' of crime and punishment broken in upon by a
recrudescence of crime, or by a serious manifestation of some
phenomenon of social pathology, then all they can do in their
perplexity and astonishment is to pass some new repressive law,
which for a moment stills the outcry of public opinion, and remits
the matter once more from the acute to the chronic phase.
The positive theory of penal substitutes, apart from any
particular example, aims precisely at furnishing a mental
discipline for legislators, and bringing home to them the duty of
constant reinforcements of social prevention, no matter how
difficult it may be, before the evil comes to a head, and forces
them too late to a course of repression which is as easy as it is
fallacious. No doubt it is vexatious and difficult, even in
private life, to be perpetually living up to rules of health; and
it is easier, if more dangerous, to forget them, and to fly, when
the mischief declares itself, to drugs which are too frequently
deceptive; but it is just the want of forethought, both public and
private, which it is so important to overcome. And as hygienic
science was not possible as a theory or as a practice until after
the experimental observations and physio-pathology on the
causes of disease, especially of epidemic and infectious diseases,
together with the discoveries of M. Pasteur, who created
bacteriology; so social hygiene as against crime was only possible
as a theory, and will not be so as a practice, till the diffusion
of the facts of biology and criminal sociology relating to the
natural causes of crime, especially of occasional crime.
The great thing is to be convinced that, for social defence
against crime, as for the moral elevation of the masses of men,
the least measure of progress with reforms which prevent crime is
a hundred times more useful and profitable than the publication of
an entire penal code.
When a minister introduces a law, for instance, on railways,
customs duties, wages, taxation, companies, civil or commercial
institutions, there are few who think of the effect which these
laws will have on the criminality of the nation, for it is
imagined that sufficient has been done in this respect by means of
reforms in the penal code. In the social organism, on the other
hand, as in individuals, there is an inevitable solidarity, though
frequently concealed, between the most distant and different
parts.
It is just from these laws of social physiology and pathology that
we derive the notion of penal substitutes, which at the same time
we must not dissociate from the law of criminal saturation. For
if it is true that by modifying the social factors we can produce
an effect on the development of crime, and especially of
occasional crime, it is also true, unfortunately, that in every
social environment there is always a minimum
of inevitable
criminality, due to the influence of the other factors, biological
and physical. Otherwise we might easily fall into the opposite
and equally fallacious illusion of thinking that we could
absolutely suppress all crimes and offences. For it is easy to
reach on one side the empiric idea of penal terrorism, and on the
other side the hasty and one-sided conclusion that to abolish some
particular institution would get rid of its abuses. The fact is
that we must consider before all things whether it is not a less
evil to put up with institutions, however inconvenient, and to
reform them, than to forfeit all the advantages which they afford.
And it must above all be borne in mind that as society cannot
exist without law, so law cannot exist without offences against
the law. The struggle for existence may be fought by honest or
economic activity, or by dishonest and criminal activity. The
whole problem is to reduce to a minimum the more or less criminal
rufflings and shocks, yet without disturbing ``social order,''
amidst the indifference or servility of a spiritless people, or
resorting to policemen and prisons on every slight occasion.
These general observations on penal substitutes in connection with
the law of criminal saturation are a sufficient answer to the two
chief objections raised even by such as agree with me in theory.
It has been urged, in effect, that some of the penal substitutes
which I have enumerated have already been applied, without
preventing crime; and again, that there were some institutions
which it would be absurd to abolish because the removal of a
prohibition would also remove the contravention.
The aim of penal substitutes is not to render all crimes and
offences impossible, but only to reduce them to the least possible
number in any particular physical and social environment. There
are crimes of piracy to this day, but the use of steam in
navigation has, none the less, been more effectual than all the
penal codes. Murders still occur, though very rarely, on the
railways; but it is none the less true that the substitution of
the railways and tramways for the old diligences and stage coaches
has decimated highway robberies, with or without murder. Divorce
does not eliminate wife-murder as a consequence of adultery, but
it diminishes its frequency. Similarly, after the protection
which is afforded to abandoned children, we shall not be able to
close the tribunals through the absence of crimes and offences,
but it is certain that the supply of these will be notably
diminished.
As for the second objection, I was careful to say, in regard to
existing institutions, that we must naturally consider whether the
evil arising from violating them or that which would be due to
their suppression is the greater. But my main contention is that
by reforming these institutions we can do more to prevent crime
than by leaving them as they happen to be, or at most granting
them the fallacious protection of one or two articles in the penal
code.
I will myself add a criticism of the theory of penal substitutes,
and it is that they are difficult of application. We have only to
think of the immense force of inertia in the habits, traditions
and interests which have to be overcome before we can secure the
appli
cation, not of all, but of any one of the penal
substitutes which I have enumerated. And some of these are not
simple, or based on a single principle, but comprise an assemblage
of co-ordinated reforms, like the prevention of drunkenness, the
protection of abandoned children, the accessibility of justice,
and so forth.
But if legislators must take into account the actual conditions of
the people, and adapt themselves to conditions of time and place,
it is the business of science to indicate the goal, however
distant and difficult to reach. The first condition of attaining
legislative and social reforms is that they should impress
themselves beforehand on the public conscience; and this is not
possible if science, in spite of transitory difficulties, does not
resolutely open up the road which has to be travelled, without any
compromise with eclecticism, which means for science what
hybridism means for organic life.
Two other objections may be made on the ground of principle to
what has been said. The first is that this system of penal
substitutes is only the familiar process of prevention of crime.
The second is that the criminal expert need not concern himself
with it, since prevention is only a question of good government,
which has nothing to do with the study of crimes and punishments.
My answer to the second objection is that the importance of taking
measures to prevent crime has certainly been dwelt upon,
especially from the time of Montesquieu and Beccaria, but it has
been only by
way of platonic and isolated declaration, with
no such systematic development as might have given them practical
application, based on experimental observations. Moreover, this
prevention has always been held as subsidiary to repression,
whereas we have arrived at the positive conclusion that
prevention, instead of being a mere secondary aid, should
henceforth become the primary defensive function of society, since
repression has but an infinitesimal influence upon criminality.
Furthermore, it is important to observe the profound distinction
between ordinary prevention and penal substitutes; or in other
words, between prevention by police and prevention by society.
The former merely seeks to prevent crime when its germ is already
developed and active, and it nearly always employs methods of
direct coercion, which, being themselves repressive in their
character, are often inefficacious, even if they do not provoke
additional offences. Social prevention, on the other hand, begins
with the original sources of crime, attacking its biological,
physical, and social factors, by methods which are wholly
indirect, and which rest upon the free play of psychological and
sociological laws.
Science, as well as the making of laws, has hitherto been too much
influenced by a preference for repression, or at least for
administrative police prevention. ``There have been authoritative
works and learned folios,'' says Ellero, ``which dealt not only
with punishment, but also with torture; there has been none
dealing with the provision of means for providing an alternative
to punishment.''
After the general observations of Montesquieu, Filangieri,
Beccaria, and more recently Tissot, on the influence of religion,
climate, soil, and the form of government, upon the penal system
rather than the prevention of crime, the authors who studied
prevention with wider and more systematic views (excluding the
criminal sociologists who have more or less taken the positive
point of view), are Bentham, Romagnosi, Barbacovi, Carmignani,
Ellero, Lombroso, and a few Englishmen, who, without making much
of the theory, have made many practical suggestions of preventive
reform. But even these writers either confine themselves to
general synthetic considerations, like Romagnosi and Carmignani,
or else, entering the domain of facts, and even accepting the idea
of social prevention, have made too little of those physio-
psychological laws as the natural factors of crime, which alone
can furnish a method of regulating human activity. And, when all
is said and done, they have clung to punishment as the chief
method of prevention.
Hence their teaching and their propositions have had no weight
with legislators, for these latter had not been convinced, as only
the criminal sociologist could convince them, that punishments are
far from having the deterrent force commonly attributed to them,
and that crime is not the outcome of free will, but rather a
natural phenomenon which can only disappear or diminish when its
natural factors are eliminated.
The legislators for their part have not only neglected the
definite teaching of these authors with more than ordinary
insight, but they have also enacted what are
really penal
substitutes in a clumsy and unscientific manner.
We have thus studied the data of criminal statistics in their
theoretical and practical relations with criminal sociology, and
come to the conclusion that, since crime is a natural phenomenon,
determined by factors of three kinds, it answers on that account
to a law of criminal saturation, whereby the physical and social
environment, aided by individual tendencies, hereditary or
acquired, and by occasional impulses, necessarily determine the
extent of crime in every age and country, both in quantity and
quality. That is to say, the criminality of a nation is
influenced in the natural sphere by the bio-psychical conditions
of individuals and their physical environment, and, in the social
sphere, by economic, political, administrative and civil
conditions of laws, far more than by the penal code.
Nevertheless the execution of punishment, though it is the less
important part of the function of social defence, which should be
carried out in harmony with the other functions of society, is
always the last and inevitable auxiliary.
And this entirely agrees with the universal law of evolution, in
virtue of which, amidst the variation of animal and social
organisms, antecedent forms are not wholly eliminated, but
continue as the basis of the forms which succeed them. So that if
the future evolution of the social administration of defence
against crime is to consist in the development of the primitive
forms of direct physical coercion into the higher forms of
indirect psychical discipline of human activity, this
will
not imply that the primitive forms must entirely disappear,
especially for the gravest crimes, which, in the biological and
psychological conditions of those who commit them, take us back to
the primitive epochs and forms of individual and social violence.
I end with a modification of an old comparison which has been much
abused. Crime has been compared to an impetuous torrent which
ought to be enclosed between the dykes of punishment, lest
civilised society should be submerged. I do not deny that
punishments are the dykes of crime, but I assert that they are
dykes of no great strength or utility. All nations know by sad
and chronic experience that their dykes cannot save them from
inundations; and so our statistics teach us that punishments have
but an infinitesimal power against the force of criminality, when
its germs are fully developed.
But as we can best protect ourselves against inundations by
obeying the laws of hydrostatics and hydrodynamics, by timbering
the banks near the source of the stream, and by due rectilineation
or excavation along its course and near its mouth, so, in order to
defend ourselves against crimes, it is best to observe the laws of
psychology and sociology, and to avail ourselves of social
substitutes, which are far more efficacious than whole arsenals of
repressive measures.
CHAPTER III.
_PRACTICAL REFORMS_.
THE data of criminal anthropology and statistics, and the positive
theory of responsibility which flows from them, although they have
been systematised only by the positive school, are nevertheless
too constantly in evidence not to have made their way into courts
and parliaments.
I have already spoken of penal jurisprudence in its relations with
criminal sociology, and may now cite a few examples of the more or
less direct and avowed influence of the new data on penal
legislation.
The legislators of to-day, vaguely impressed by statistical and
biological, ethnographical and anthropological data, and still
imbued with the old prejudice of social and political
artificiality, were at first hurried into a regular mania for
legislation, under which every newly observed social phenomenon
seemed to demand a special law, regulation, or article in the
penal code. Then, as Spencer has said in one of his most
brilliant essays, the citizen finds himself in an inextricable
network of laws, decrees, regulations and codes, which surround
him, support him, fetter and bind him, even before his birth and
after his death. For
those whom M. Bordier calls
the gardeners and trussmakers of society, forgetting the natural
character of social phenomena, picture society as so much paste,
to which the cook may give any form he pleases, whether pie-crust,
dumpling, or tart.
Hence we see on all sides, side by side with dogma in the
classical sciences of law, economy, and politics, empiricism in
the laws themselves. And that is why the practical defects and
constant impotence of repression in penal justice are the most
eloquent arguments of the experimental school, which extends and
strengthens its own theoretical inductions by the practical
reforms which it suggests.
A first example of the influence more directly exercised by the
new ideas in penal legislation is furnished by the proposal
already realised in the penal laws of Holland, Italy, &c., of two
parallel systems of punishment by detention--one for the graver
and more dangerous crimes, and the other, ``simple detention,'' or
_custodia honesta_ (``as a first-class misdemeanant''), for
contraventions, involuntary offences, and crimes not inspired by
the baser passions.
Similarly, the enumeration contained in certain codes, as in
Spain, and in the old Mancini draft of a penal code in Italy, of
the main aggravating and extenuating circumstances common to all
crimes and offences, such as the antecedents of the accused,
venial or inexcusable passion, repentance and confession of a
crime, extent of injury or the like, is only an elementary and
empiric form of the biological and psychological classification of
criminals.
Thus also the foundation of asylums for the detention of lunatic
criminals, in spite of their being acquitted of moral
responsibility; the more and more vigorous, but often too
empirical measures against the progressive increase of recidivism;
the proposed repressive measures as alternatives to short terms of
detention; the reaction against the exaggerations of cellular
confinement, which I regard as one of the aberrations of the
nineteenth century, are all manifest proofs of the more or less
avowed and logical influence of the data of criminal biology and
sociology on contemporary penal legislation.
These practical reforms, which, when grafted on the old trunk of
the classical theories of crime and punishment, are mere arbitrary
and misplaced expedients, really represent, when they are
logically co-ordinated and completed, the new system of social
defence againt{sic} crime, which is based on the scientific data
and inductions of the positive school, and which it is therefore
necessary for us to trace out from its foundations.
I.
In the first place, whilst the positive theories largely reduce
the practical importance of the penal code, yet they do more to
increase the importance of the rules of penal procedure, which are
intended to give practical and daily effect to penal measures, for
the defence of society against criminals. For, as I maintained in
the Italian Parliament, if the penal code is a code for evil-
doers, that of penal procedure is a code
for honest people,
who are placed on their trial but not yet found guilty.
This is all the more true because, if it is possible to have penal
codes whose machinery of psychological coercion is planted on a
platonic platform of penitentiary systems written out fair in
their symmetrical clauses, but still non-existent, as is the case
in Italy, this is not possible in regard to penal procedure. The
regulations of the code of ``instruction'' must of necessity be
carried out by a judicial routine. The penal code may remain a
dead letter, as, for instance, when it says that punishment by
detention is to be inflicted in prisons constructed with cells;
for, happily, the cells necessary in Italy for fifty or sixty
thousand prisoners (or in France for thirty or forty thousand) are
too expensive to admit of the observance of these articles of the
penal code--which nevertheless have cost so many academic
discussions as to the best penitentiary system: ``Auburn,''
``Philadelphian,'' ``Irish,'' or ``progressive.'' In the
organisation of justice, on the other hand, every legal regulation
has its immediate application, and therefore reforms of procedure
produce immediate and visible results.
It may be added that, if the slight deterrent influence which it
is possible for punishment to exercise depends, with its
adaptation to various types of criminals, on the certitude and
promptitude of its application, the others depend precisely and
solely on the organisation of the police, and of penal procedure.
Passing over special and technical reforms which
even the
classical experts in crime demand in the systems of procedure, and
often rather on behalf of the criminals than on behalf of society,
we may connect the positive innovations in judicial procedure with
these two general principles:--(1) the equal recognition of the
rights and guarantees of the prisoner to be tried and of the
society which tries him; and (2) the legal sentence, whereof the
object is not to define the indeterminable moral culpability of
the prisoner, nor the impersonal applicability of an article in
the penal code to the crime under consideration; but the
application of the law which is most appropriate to the
perpetrator of the crime, according to his more or less anti-
social characteristics, both physiological and psychological.
From Beccaria onward, penal law developed by reaction against the
excessive and arbitrary severity of the Middle Ages--a reaction
which led to a progressive decrease of punishments. Similarly
official penal procedure in the nineteenth century has been, and
continues to be, a reaction against the medival abuses of the
inquisitorial system, in the sense of a progressive increase of
individual guarantees against the domination of society.
As we considered it necessary in the interests of social self-
defence, in the case of criminal law, to combat the individualist
excesses of the classical school, so in regard to penal procedure,
whilst admitting the irrevocable guarantees of individual liberty,
secured under the old system, we think it necessary to restore the
equilibrium between individual and social rights, which has been
disturbed by the many exaggerations of the classical
theories, as we will now proceed to show by a few examples.
The presumption of innocence, and therewith the more general rule,
``in dubio pro reo,'' is certainly based on an actual truth, and
is doubtless obligatory during the progress of the trial.
Undetected criminals are fortunately a very small minority as
compared with honest people; and we must consequently regard every
man who is placed on his trial as innocent until the contrary has
been proved.
But when proof to the contrary is evident, as, for instance, in
the case of a flagrant crime, or of confession confirmed by other
elements in the trial, it seems fit that the presumption should
cease in view of absolute fact; and especially when we have to do
with habitual criminals.
Even the criminals of this class whom I have questioned recognise
a presumption of the opposite kind. ``They have convicted me,''
said an habitual thief, ``because they knew I might have done it,
without any proof; and they were in the right. You will never be
convicted, because you never stole; and if we happen to be
innocent once in a way, that must be set against the other times
when we are not discovered.'' And the ironical smile of several
of these prisoners, condemned on circumstantial evidence, reminded
me of a provision which was once proposed in the Italian penal
code, under which a person surprised in the attempt to commit a
crime, if it was not known what precise form his crime would have
taken, was to be found guilty of a less serious offence. This
might be good for an occasional criminal,
or a criminal of
passion, but would be absurd and dangerous for habitual criminals
and old offenders.
The exaggerations of the presumption ``in dubio pro reo'' are due
to a sort of mummification and degeneracy of the legal maxims,
whereby propositions based upon observation and generalisation
from existing facts continue in force and are mechanically applied
after the facts have changed or ceased to exist.
What reason can there be for extending provisional freedom,
pending an appeal, to one who has already been found guilty and
liable to punishment for a crime or offence, under sentence of a
court of first instance? To presume the innocence of every one
during the first trial is reasonable; but to persist in a
presumption which has been destroyed by facts, after a first
condemnation, would be incomprehensible if it were not a
manifestly exaggerated outcome of classical and individualist
theories, which can only see a ``victim of authority'' in every
accused person, and in every condemned person also.
Another point is that of acquittal in case of an equality of
votes, especially where born and habitual criminals are concerned.
I think it would be much more reasonable to restore the verdict of
``not proven,'' which the Romans admitted under the form of ``non
liquet,'' as an alternative to ``absolvo'' and ``condemno,'' and
which may be delivered by juries in Scotland. Every one who has
been put on his trial is entitled to have his innocence declared,
it it has been actually proved. But if the proofs remain
incomplete, his only right is not to be condemned,
since
his culpability has not been proved. But it is not the duty of
society to declare him absolutely innocent, when suspicious
circumstances remain. In this case the only logical and just
verdict is one of ``not proven.'' Such a verdict would obliterate
the shadow of doubt which rests on persons who have been
acquitted, by reason of the identical verdicts in cases of proved
innocence and inadequacy of proof, and on the other hand it would
avoid the tendency to compromise, under which judges and juries,
in place of acquitting when the proof is insufficient, sometimes
prefer to convict, but make the punishment lighter.
Another case of exaggeration in the presumption of innocence is
afforded by the regulations as to contradictory or irregular
verdicts, which may be corrected only when there has been a
conviction; whilst if the error has led to the acquittal of an
accused person, it cannot be put right. The influence of the
individualist and classical school is here manifest, for, as M.
Majno says, ``the justice of sentences rests as much on just
condemnations as upon just acquittals.'' If the individual has a
right to claim that he shall not be condemned through the mistake
or ignorance of his judges, society also has the right to demand
that those whose acquittal is equally the result of mistake or
ignorance shall not be allowed to go free.
On the same ground of equilibrium between the rights of the
individual and the rights of society, which the positive school
aims at restoring, something must be said as to the regulation by
which, if the
appeal is brought by a condemned person, the
punishment cannot be increased. One classical expert in an
official position would not even give the right to appeal at all.
Now if appeal is allowed for the purpose of correcting possible
mistakes on the part of the original judges, why must we allow
this correction in mitigation, and not in increase of punishment?
And to this practical assurance of the condemned person that he
has nothing to fear from a second trial, which seems to have been
given to him for the sole purpose of encouraging him to abuse his
power, since appeals are too often a mere dilatory pretext, there
is a pendant in the right of the public prosecutor to demand a re-
hearing, but only ``in the interest of the law, and without
prejudice to the person acquitted.''
A last instance of the same kind of protective regulation for the
protection of evil-doers is to be found in the new trials which
are permitted only in cases where there has been a condemnation,
and that on arbitrary and superficial grounds. Most of the
classical commentators on procedure do not dream of the
possibility of revision in the case of acquittals, and yet, as
Majno justly says, ``even if he has profited by false witness,
forged documents, intimidation or corruption of a judge, or any
other offence, the acquitted person calmly enjoys his boast, and
can even plume himself on his own share in the business without
fear of being put on his trial again.'' The Austrian and German
codes of procedure admit revision in cases of acquittal; and the
positive rule in this connection ought to be that a case should be
re-heard when the sentence of condemnation or acquittal is
evidently erroneous.
From the same principle of equality between the guarantees of the
individual criminal and of honest society we infer the necessity
of greater strictness in the idemnification of the victims of
crime. For the platonic damages now added to all sorts of
sentences, but nearly always ineffectual, we believe that a strict
obligation ought to be substituted, the operation of which should
be superintended by the State, in the same way as the other
consequence of the crime, which is called the punishment. I will
return to this when I trace the outline of the positive system of
social defence against criminals.
The positive school, precisely because it aims at an equilibrium
between individual and social rights, is not content with taking
the part of society against the individual. It also takes the
part of the individual against society.
In the first place, the very reforms which we propose for the
indemnification of the victims of crime, regarded as a social
function, as well as the operation of the punishment, have an
individualist character. The individualism of the classical
school was not even complete as a matter of fact; for the
guarantees which it proposed took account of the individual
criminal only, and did not touch his victims, who are also
individuals, and far more worthy of sympathy and protection.
But, beyond this, we may point to three reforms as an instance of
the positive and reasonable guarantees of the individual against
the abuse or the defects of
social authority. Of these
reforms two have been put forward by the classical school also,
but, like criminal lunatic asylums, alternatives for short terms
of imprisonment, and so on, they have generally remained
inoperative, for they are not in harmony with the bulk of
traditional theory, and only in a positive system have they any
organic and efficacious connection with the data of criminal
sociology. I refer to the exercise of popular opinion, the
correction of judicial mistakes, and the transfer of sundry
punishable offences to the category of civil contraventions.
The institution of a Ministry of Justice corresponds to the
demands of general sociology, which exacts division of labour even
in collective organisms, and to those of criminal sociology, which
requires a special and distinct organ for the social function of
defence against crime. Indeed it has become indispensable as a
necessary judicial organ, even in nations like England which have
not yet formally established it. So that, far from confounding
the Public Prosecutor with the judicial body, we see the necessity
of giving to this office a more elevated character and a distinct
personality, with ampler guarantees of independence of the
executive power.
Nevertheless the action of the Ministry of Justice, as now
commonly organised, may be inadequate for the protection of the
victims of crime, either indirectly through the insufficient
number of its functionaries, or directly, through the functional
defect insisted on by M. Gneist, ``party spirit or prejudice in
favour of the governing powers.'' The latter, indeed,
notwith
standing M. Glaser's objection that government
pressure is impossible, have no need to give special instructions,
of a more or less compromising character, in order to exercise a
special influence in any particular case. There is no necessity
for anything beyond the conservative spirit natural to every
institution of the State, or the principle of authority which is a
special form of it, apart from the less respectable motives of
interested subservience to such as are in office and dispense
promotion.
Hence it will be useful, in initiating criminal proceedings, to
add to the action of a Public Prosecutor (but not to substitute
for him) the action of private persons.
Criminal proceedings by citizens may take two forms, according as
they are put in operation only by the injured person or by any
individual.
The first mode, already allowed in every civilised nation, needs
amendment in various ways, especially in regard to the
subordination of the penal action to the plaint of the injured
person, which ought to be restrained, and even abolished. In
fact, whereas this right has hitherto been regulated by law only
in view of the legal and material gravity of the offence, it
should in future be made to depend on the perversity of the
offender; for society has a much greater interest in defending
itself against the author of a slight offence if he is a born
criminal or a criminal lunatic, than in defending itself against
the author of a more serious crime, if he is an occasional
criminal or a criminal of passion. And the necessity of bringing
a private action in regard to certain offences
is only a
source of abuses, and of demoralising bargains between offenders
and injured persons.
On the other hand, this prosecution by a citizen who has been
injured by a crime or an offence ought to have more efficacious
guarantees, either for the exercise of the rights of the injured
person, or against the possible neglect or abuse of the Public
Prosecutor. If, indeed, he is obliged to take up every charge and
action, he is also (in Italy and France, but not in Austria or
Germany, for instance) the only authority as to penal actions, and
consequently as to penal judgments.
In Italy, out of 264,038 cases which came before the Public
Prosecutor in 1880, six per cent., or 16,058, were ``entered on
the records,'' or, in other words, they were not followed up; and
in 1889, out of a total of 271,279, the number of unprosecuted
cases was 27,086, or ten per cent. That is, the number had almost
doubled in ten years.
In France the annual average of plaints, charges, and trials with
which the Public Prosecutor was concerned stood at 114,181 in the
years 1831-5; at 371,910 in 1876-80; and at 459,319 in 1887. And
the cases not proceeded with were 34,643, or thirty per cent., in
1831-5; 181,511, or forty-eight per cent., in 1876-80; and
239,061, or fifty-two per cent., in 1887. That is to say, their
actual and relative numbers mere nearly doubled in fifty years.
Is it possible that in ten, or even in fifty years, the moral
conditions of a nation, and its inclination to bring criminal
charges, should be so modified that the number of cases devoid of
foundation should have
been almost doubled? It is certain
that in different nations and different provinces there are
varying degrees of readiness to bring charges against lawbreakers
rather than to take personal vengeance. But in one and the same
nation this vindictive spirit and this readiness to bring charges
cannot vary so greatly and rapidly, especially within ten years,
as in Italy; for the persistence of popular sentiment is a well-
known fact. It is rather in the disposition of the functionaries
of the Ministry of Justice, which is far more variable, that we
must look for an explanation of this fact, which is also accounted
for by the tendency to diminish the statistical records of crime.
Now, why must the citizen who lodges a complaint of what he
considers a crime or offence submit to the decision of the Public
Prosecutor, who has allowed his action to drop? This
consideration has led to the subsidiary penal action, already
allowed in Germany and Austria, and introduced in the draft codes
of procedure in Hungary, Belgium, and France, which is a genuine
guarantee of the individual as against the social authority. We
must not, however, deceive ourselves as to the efficacy or
frequency of its operation, especially in the Latin nations, which
have none too much individual initiative.
The second form of private prosecution is that of the ``popular
punitive action,'' which existed in the Roman penal law--which, it
may be said in passing, is not so insignificant as the classical
school has supposed. The statement of M. Carrara, too often
repeated, that ``The Romans, who were giants in civil law, are
pigmies in penal law,'' is not in my
opinion correct. It
is true that the Roman penal law was not organised in a
philosophical system; but it exhibits throughout the wonderfully
practical judgment of the Roman jurisconsults; and indeed one
cannot see why they should have lost this sense when dealing with
crimes and punishments. On the other hand, I am inclined to think
that the importance of the Roman civil law has been exaggerated,
and that the spirit of the _corpus juris_ springs from social and
economic conditions so different from our own that we can no
longer feel bound to submit to its tyranny. The penal law of the
Romans, however, contains several maxims based on unquestionable
common sense, which deserve to be rescued from the oblivion to
which they have been condemned by the dogmatism of the classical
school. Examples of these are the popular punitive action; the
distinction between _dolus bonus_ and _dolus malus_, which belongs
to the theory of motives; the stress laid upon intentions rather
than upon their actual outcome; the law of _exceptio veritatis_ in
cases of slander, which under the pharisaism of the classical
theory serves only to give immunity to knaves; the penalty of
twofold or threefold restitution for theft, in place of a few days
or weeks in prison; the condemnation of the most hardened
criminals to the mines, instead of providing them with cells, as
comfortable as they are ineffectual--apart from the consideration
that the firedamp in mines and the unhealthiness of penal
settlements would be less mischievous if their victims were the
most dangerous criminals rather than honest miners and husbandmen.
To return to the popular penal action, it is so com
monly
advocated, even by the classical school, that it is necessary to
say another word on the subject.
Gneist, from his special point of view, proposed that this action
should be introduced into penal procedure, as against electoral
and press offences, offences against the law of public meetings
and associations, and the abuse of public authority. But I
consider that this action would be a necessary guarantee, in the
case of all crimes and offences, for a reasonable and definite
adjustment of the rights of the individual and of society.
Another reform, tending to a more effective guarantee of
individual rights, is the revision of judicial errors in the
interests of all who are unjustly condemned or prosecuted. Such a
reform has been advocated also by several members of the classical
school; but it seemed only too likely to remain with them a mere
benevolent expression of opinion; for it can only be carried into
effect by curtailing imprisonment, and by a more frequent and
stringent infliction of fines, as advocated by the positive
school.
Sanctioned in some special cases, as an exceptional measure--as,
for instance, in the last century by the Parliament of Toulouse,
and in our age by the English Parliament--compensation for
judicial errors was rendered necessary in France at the end of the
eighteenth century, after a series of unjust condemnations, even
death sentences, which led Voltaire and Beccaria to demand the
abolition of capital punishment. In 1781 the Society of Art and
Literature at Chlonssur-Marne offered a prize for an essay on
the subject, and awarded it to Brissot de Warville, for his work,
``Le Sang Innocent Veng.'' In the records of the
tats Gnraux there were many votes in favour of this
reform, which Louis XVI. caused to be introduced on May 8, 1788.
In 1790 Duport brought in a measure in the Constituent Assembly;
but it was rejected after a short discussion in February, 1791,
during which the same practical objections were urged as have been
repeated up to the present time. Nevertheless, the Convention
decreed special indemnities, as, for instance. a thousand francs
in 1793 for one Busset, ``for arbitrary imprisonment and
prosecution.'' In 1823 the above-named Society at Chlonssur-
Marne proposed the same subject for an essay; and it has been the
object of sundry proposals, all rejected, as in 1867 during the
discussion on criminal appeals, on amendments moved by Jules
Favre, Richard, and Ollivier; and again in 1883 by Dput
Pieyre, and in 1890 by Dput Reinach.
This reform has been advocated by Necker, amongst other writers,
in his memoir on ``Financial Administration in France,'' and by
Pastoret, Voltaire, Bentham, Merlin, Legraverend, Hlie,
Tissot, and more comprehensively by Marsangy in his ``Reform of
the Criminal Law'' (1864). Marsangy advocated many other
practical reforms which have since been adopted, in substitution
for the objectionable short terms of imprisonment. More recently
the subject has been treated in France by the magistrates Bernard,
Pascaud, Nicolas, Giacobbi, and by the Attorney-Generals Molines,
Jourdan, Houssard, Dupry, Bujard, in their inaugural addresses.
In Italy there was a notable precedent for this reform in
the Treasury of Fines, established for Tuscany in 1786, and for
the kingdom of the Two Sicilies in the penal code of 1819, for the
purpose of creating a fund for compensation in cases of judicial
error. In 1886 Deputy Pavesi brought in a measure which was not
discussed; and this indemnification, which had already been
proposed in 1873 by De Falco, keeper of the seals, in his draft of
an Italian penal code, was not included in subsequent Bills,
mainly on account of the financial difficulties. Amongst writers
on criminology, it was advocated in Italy by Carrara, Pessina, and
Brusa; in Germany by Geyer and Schwarze; in Belgium by Prins and
others, and more recently by M. Garofalo, in his report to the
third National Congress on Law, at Florence, in September, 1891.
Amongst existing laws, indemnification for judicial errors,
whether limited to cases in which the innocence of condemned
persons can be proved, or extended to persons wrongfully
prosecuted, is included in the penal codes of Hungary and Mexico,
and by special laws in Portugal (1884), Sweden (1886), Denmark
(1888), and especially in Switzerland, in the cantons of Fribourg,
Vaud, Neuchtel, Geneva, Ble, and Berne.
The legal principle that the State ought to indemnify material and
moral injury inflicted by its functionaries, through malice or
negligence, on a citizen who has done nothing to subject himself
to prosecution or condemnation, cannot be seriously contested.
But the whole difficulty is reduced to deciding in what cases the
right to indemnification ought to be recognised, and then
to providing a fund out of which the State can discharge this
duty.
For the latter purpose it would be necessary to include an
adequate sum in the Budget. This was done in Bavaria, in 1888, by
setting apart 5,000 marks annually; and the first who profited by
this provision received a pension of 300 marks per annum, after
being rendered incapable of work by seven years' imprisonment for
a crime which he had not committed. But if the policy of
retrenchment imposed on the European States by their insane
military expenditure and their chronic wars prevents the carrying
out of this proposal, there is the Italian precedent of the
Treasury of Fines, which, with the fines inflicted, or which ought
to be inflicted on convicted persons, and the product of prison
labour, would provide the necessary amount for the indemnities
which the State ought to pay to innocent persons who have been
condemned or prosecuted, as well as to the victims of offences.
As for the cases in which a right to indemnification for judicial
errors ought to be acknowledged, it seems to me evident in the
first place that we must include those of convicted persons found
to be innocent on a revision of the sentence. Amongst persons
wrongfully prosecuted, I think an indemnity is due to those who
have been acquitted because their action was neither a crime nor
an offence, or because they had no part in the action (whence also
follows the necessity of verdicts of Not Proven, so as to
distinguish cases of acquittal on the ground of proved
innocence)--always provided that the prosecuted persons have not
given a reasonable pretext for their trial by their
own
conduct, or their previous relapse, or their habitual criminality.
The third proposition of the positive school in regard to
individual guarantees, which was also advanced by M. Puglia, is
connected with reform of the penal code, and especially with the
more effectual indemnification of the victims of crime. The
object is to prune the long and constantly increasing list of
crimes, offences, and contraventions of all acts which result in
slight injury, committed by occasional offenders, or ``pseudo-
criminals''--that is, by normal persons acting merely with
negligence or imprudence.
In these cases the personal and social injury is not caused
maliciously, and the agent is not dangerous, so that imprisonment
is more than ever inappropriate, unjust, and even dangerous in its
consequences. Deeds of this kind ought to be eliminated from the
penal code, and to be regarded merely as civil offences, as
__*simple__ theft was by the Romans; for a strict indemnification
will be for the authors of these deeds a more effectual and at the
same time a less demoralising and dangerous vindication of the law
than the grotesque condemnation to a few days or weeks in prison.
It will be understood that the classical theory of absolute
and eternal justice cannot concern itself with these trifles,
which, nevertheless, constitute two-thirds of our daily social and
judicial existence; for, according to this theory, there is always
an offence to be visited with a proportionate punishment, just as
with a murder, or a highway robbery, or a slanderous word.
But for the positive school, which realises the actual and
practical conditions of social and punitive justice, there is on
the other hand an evident need of relieving the codes, tribunals,
and prisons from these microbes of the criminal world, by
excluding all punishments by imprisonment for what Venturi and
Turati happily describe as the atomic particles of crime, and by
relaxing in some degree that monstrous network of prohibitions and
punishments which is so inflexible for petty transgressors and
offenders, but so elastic for serious evil-doers.
II.
The reforms which we propose in punitive law are based on the
fundamental principle already established on the data of
anthropology and criminal statistics.
If the ethical idea of punishment as a retribution for crime
be excluded from the repressive function of society, and if we
regard this function simply as a defensive power acting through
law, penal justice can no longer be squared with a minute
computation of the moral responsibility or culpability of the
criminal. It can have no other end than to prove, first, that the
person under trial is the author of the crime, and, then, to which
type of criminals he belongs, and, as a consequence, what degree
of anti-social depravity and re-adaptability is indicated by his
physical and mental qualities.
The first and fundamental inquiry in every criminal
trial
will always be the verification of the crime and the
identification of the criminal.
But when the connection of the accused and the crime is once
established, either the accused produces evidence of his honesty,
or of the uprightness of his motives--the only case in which his
acquittal can be demanded or taken into consideration--or else it
is proved that his motives were anti-social and unlawful, and then
there is no place for those grotesque and often insincere contests
between the prosecution and the defence to prevent or to secure an
acquittal, which will be impossible whatever may be the
psychological conditions of the criminal. The one and only
possible issue between the prosecution and the defence will be to
determine, by the character--of the accused and of his action, to
what anthropological class he belongs, whether he is a born
criminal, or mad, or an habitual or occasional criminal, or a
criminal of passion.
In this case we shall have no more of those combats of craft,
manipulations, declamations, and legal devices, which make every
criminal trial a game of chance, destroying public confidence in
the administration of justice, a sort of spider's web which
catches flies and lets the wasps escape.
The crime will always be the object of punitive law, even under
the positive system of procedure; but, instead of being the
exclusive concern of the judge it will only be the ground of
procedure, and one symptom amongst others of the depravation and
re-adaptability of the criminal, who will himself be the true and
living subject of the trial. As it is, the whole
trial is
developed from the material fact; and the whole concern of the
judge is to give it a legal definition, so that the criminal is
always in the background, regarded merely as the ultimate billet
for a legal decision, in accordance with some particular article
in the penal code--except that the actual observance of this
article is at the mercy of a thousand accidents of which the judge
knows nothing, and which are all foreign to the crime, and to the
criminal.
If we rid ourselves of the assumption that we can measure the
moral culpability of the accused, the whole process of a criminal
trial consists in the assemblage of facts, the discussion, and the
decision upon the evidence. For the classical school, on the
other hand, such a trial has been regarded as a succession of
guarantees for the individual against society, and, by a sort of
reaction against the methods of legal proof, has been made to turn
upon the private conviction, not to say the intuition, of the
judge and counsel.
A criminal trial ought to retrace the path of the crime itself,
passing backward from the criminal action (a violation of the
law), in order to discover the criminal, and, in the psychological
domain, to establish the determining motives and the
anthropological type. Hence arises the necessity for the positive
school of reconsidering the testimony in a criminal case, so as to
give it its full importance, and to reinforce it with the data and
inferences not only of ordinary psychology, as the classical
school has always done (Pagano for instance, and Bentham,
Mitter
maier, Ellero, and others), but also, and above all,
with the data and inferences of criminal anthropology and
psychology.
In the evolution of the theory of evidence we may distinguish four
characteristic stages, as M. Tarde observed--the religious stage,
with its ordeals and combats; the legal stage, accompanied by
torture; the political stage, with private conviction and the
jury; and the scientific stage, with expert knowledge of
experimental results, systematically collected and studied, which
is the new task of positive procedure.
We must glance at each of the three elements of the criminal
trial: collection of evidence (police and preliminary inquiry);
discussion of evidence (prosecution and defence), and decision
upon evidence (judges and juries).
It is evident in the first place, as I remarked in the first
edition of this work, and as Righini, Garofalo, Lombroso, Alongi,
and Rossi have confirmed, that a study of the anthropological
factors of crime provides the guardians and administrators of the
law with new and more certain methods in the detection of the
guilty. Tattooing, anthropometry, physiognomy, physical and
mental conditions, records of sensibility, reflex activity, vaso-
motor reactions, the range of sight, the data of criminal
statistics, facilitate and complete the amassing of evidence,
personal identification, and hints as to the capacity to commit
any particular crime; and they will frequently suffice to give
police agents and examining magistrates a scientific guidance in
their inquiries, which now depend entirely on their individual
acuteness and mental sagacity.
And when we remember the enormous number of crimes and offences
which are not punished, for lack or inadequacy of evidence, and
the frequency of trials which are based solely on circumstantial
hints, it is easy to see the practical utility of the primary
connection between criminal sociology and penal procedure.
The practical application of anthropometry to the identification
of criminals, and to the question of recidivism, which was begun
in Paris by M. Bertillon, and subsequently adopted by almost all
the states of Europe and America, is too familiar to need
description. It will be sufficient to recall the modifications of
Bertillon's system by Anfosso, with the actual collection of
anthropometric data, and their inclusion in the ordinary records
of justice.
Thus the sphygmographic data on the circulation of the blood,
which reveal the inner emotions, in spite of an outward appearance
of calm or indifference, have already served to show that a person
accused of theft was not guilty of it, but that he was on the
contrary guilty of another theft, of which he had not been so much
as suspected. On another occasion they established the innocence
of a man condemned to death. We shall have more speaking and
frequent illustrations when these inquiries have been placed
regularly at the service of criminal justice.
The sphygmograph may also be useful in the diagnosis of simulated
disease, after the example set M. Voisin in the case of a sham
epileptic in Paris, ``whose sphygmographic lines have no
resemblance to those of true epileptics before and after a fit,
and <168>only resemble those produced by normal persons after a
violent gesticulation.''
As for the possible utilisation of hypnotism, we must be cautious
before we draw any legal conclusions from it; but it cannot be
questioned that this is a valuable source of scientific aid in the
systematic collection of criminal evidence.
But, for the present, the most certain and profitable aids in the
collection of evidence are those afforded by the organic and
psychical characteristics of criminals. In my study on homicide I
reckoned up many psychological and psycho-pathological symptoms
which characterise the murderer, the homicidal madman, and the
homicide through passion. And in my professional practice I have
often found by experience that there is a great suggestive
efficacy in these psychological symptoms in regard to the conduct
of a criminal, before, during, and after a crime; and it is
important to bring this knowledge scientifically before detectives
and judges.
These data are not applicable to accused persons exclusively.
When we remember the enormous importance of oral evidence in the
chain of criminal proof, and the rough traditional empiricism of
the criteria of credibility, which are daily applied in all trials
to all kinds of witnesses, by men who regard them, like the
prisoners, as an average abstract type--excluding only the
definite cases of inability to give evidence, which are defined
beforehand with as much method as the cases of irresponsibility--
the necessity of calling in the aid of scientific psychology and
psycho-pathology is manifest.
For instance, not to dwell on the absurd violation of these
traditional criteria of credibility, when police officers are
admitted as witnesses (often the only witnesses) of resistance to
authority or violence, wherein they are doubly interested parties,
how often in our courts do we give a thought to the casual
imaginations or credulity of children, women, weak-nerved or
hysterical persons, and so on? Counsel for defence or prosecution
who desired to know if any particular witness is or is not
hysterical would bring a smile to the face of the judge, very
learned, no doubt, in Roman law or legal precedents, but certainly
ignorant in physiology, psychology, and psycho-pathology. Yet the
tendency to slander in hysterical cases, which M. Ceneri urged so
eloquently in a celebrated trial or the tendency to untruth in
children, which M. Motet has ably illustrated, are but manifest
and simple examples of this applicability of normal, criminal, and
pathological psychology to the credibility of witnesses. And,
under its influence, how much of the clear atmosphere of humanity
will stimulate our courts of justice, which are still too much
isolated from the world and from human life, where, nevertheless,
prisoners and witnesses come, and too often come again, living
phantoms whom the judges know not, and only see confusedly through
the thick mist of legal maxims, and articles of the code, and
criminal procedure.
Apart from these examples, which prove the importance of what M.
Sarraute justly called ``judicial applications of criminal
sociology,'' the fundamental reform needed in the scientific
preparation of criminal
evidence is the creation of
magisterial experts in every court of preliminary inquiry. In a
question of forgery, poisoning, or abortion, the judge has
recourse to experts in handwriting, chemistry, or obstetrics; but
beyond these technical, special, and less frequent cases, in every
criminal trial the basis of inquiry is or ought to be formed by
the data of criminal biology, psychology, and psycho-pathology.
So that, over and above the knowledge of these sciences which is
necessary to judges, magistrates, and police officers, it is most
important that an expert, or several experts in criminal
anthropology should be attached to every court of criminal
inquiry.
This would provide us with an anthropological classification,
certain and speedy, of every convicted person, as well as a legal
classification of the material fact, and we should avoid the
scandal of what are known as experts for the prosecution and
experts for the defence. There should be but one finding of
experts, either by agreement between them or by a scientific
reference to arbitration, as in the German, Austrian, and Russian
system; and over this finding the judges and the litigants should
have no other power than to call for explanations from the chief
of the experts.
In this way we should further avoid the scandal of judges entirely
ignorant of the elementary ideas of criminal biology, psychology,
and psycho-pathology, like the president of an assize court whom I
heard telling a jury that he was unable to say why an expert
``wanted to examine the feet of a prisoner in order to come to a
decision about his head.'' This president,
who was an
excellent magistrate and a learned jurist was wholly unacquainted
with the elements of the theory of degeneracy, like one of his
colleagues whom I heard saying, when the expert spoke of the
abnormal shape of the ears of a prisoner (in accord with the
inquiries of Morel and Lombroso), ``That depends on how the hat is
worn.''
For in consequence of the assumption, made by Kant amongst others,
that questions of mental disease belong to the philosopher rather
than to the physician, and of the absurd and shallow idea which
superficial persons entertain of those who are insane, picturing
them as constantly raving, the judge or juryman who pins his faith
to an expert in handwriting thinks himself above the necessity of
taking the opinion of an expert in insanity.
It must be recognised, however, that this foolish assumption is
partly due to a reasonable anxiety for the public safety, under
the sway of the classical theories, which allow the acquittal and
discharge of criminals who are found to be of unsound mind. It
will eventually disappear, either by the wider diffusion of
elementary ideas of psycho-pathology or by the application of
positive theories, which are far from carrying the proved insanity
of a prisoner to the dangerous and absurd conclusion of his
acquittal.
After the first stage of the collection of evidence, during which
we can admit the legal representation of the accused, especially
for the sake of eliciting both sides of the question, without,
however, going so far as the individual exaggerations of complete
publicity for the preliminary inquiry, we come to the second
stage of procedure, that of the public discussion of the
evidence.
The principals in this discussion represent the prosecution
(public or private) and the defence; and for these, as I cannot go
into great detail, I will only mention one necessary reform. That
is the institution of a sort of public defence, by a legal officer
such as used to be found in certain of the Italian provinces,
under the title of ``advocate of the poor,'' who ought to be on a
par with the public prosecutor, and to be substituted for the
present institution of the official defence, which is a complete
failure.
As for the actual discussion of evidence, when we have established
the scientific rules of evidence, based upon expert acquaintance
with criminal anthropology, and when we have eliminated all verbal
contention over the precise measure of moral responsibility in the
prisoner, the whole debate will be a criticism of the personal and
material indications, of the determining motives, and the
anthropological category to which the accused belongs, and of the
consequent form of social defence best adapted to his physical and
psychical character.
The practical conclusion of the criminal trial is arrived at in
the third stage, that of the decision on the evidence.
So far as we are concerned, the criminal adjudication has the
simple quality of a scientific inquiry, subjective and objective,
in regard to the accused as a possible criminal, and in relation
to the deed of which he is alleged to be the author. We naturally
therefore require in the judge certain scientific
knowledge, and not merely the intuition of common sense.
But as the consultation of the jury, by reason of its inseparable
political aspect, must take place in private, we can only insist
on the fundamental reform of the judicial organisation, which
alone can realise the scientific principle of criminal
adjudication. It was Garofalo who, in the earlier days of the
positive school, urged that civil and criminal judges ought to be
wholly distinct, and that the latter ought to be versed in
anthropology, statistics, and criminal sociology, rather than in
Roman law, legal history, and the like, which throw no light on
the judgment of the criminal.
Learned jurists, proficient in the civil law, are least fit to
make a criminal judge, accustomed as they are by their studies to
abstractions of humanity, looking solely to the juridical
bearings, inasmuch as civil law is mostly ignorant of all that
concerns the physical and moral nature of individuals. The
demoralisation or uprightness of a creditor, for instance, has no
influence for or against the validity of his credit.
The jurist, therefore, in a matter of criminal adjudication,
entirely loses sight of the personal conditions of the accused,
and the social conditions of the community, and confines his
attention to the deed, and to the maxims of a so-called
retributive justice. They who are called upon to try criminals
ought to possess the ideas necessary to the natural study of a
criminal man, and should therefore constitute an order of
magistrates wholly distinct from that of civil judges.
The practical means of securing this fundamental reform of the
judicial bench ought to begin with the organisation of the
university, for in the courses of the faculty of law it will be
necessary to introduce a more vigorous and modern stream of social
and anthropological studies, which must also eventually put new
life into the ancient maxims of the civil law.
In the second place, law students at the university ought to be
admitted to what Ellero called a science of clinical criminology,
that is to interviews with and systematic observations of
prisoners. The first Congress of Criminal Anthropology approved
the proposal of M. Tarde, upon the following motion of Moleschot-
Ferri:--``The Congress, in agreement with the scientific tendency
of criminal anthropology, is of opinion that prison authorities,
whilst taking necessary precautions for internal discipline, and
for the individual rights of condemned prisoners, should admit to
the clinical study of criminals all professors and students of
penal law and legal medicine, under the direction and
responsibility of their own professors, and if possible in the
character of societies for the aid of actual and discharged
prisoners.''
Lastly, a special school should be founded for policemen and
prison warders, with the object of securing detectives
distinguished not only for their personal ability, but also for
their knowledge of criminal biology and psychology.
To these reforms, which guarantee the scientific capacity of the
criminal judge, we must add reforms which would secure his
complete independence of
the executive authority, which is
now the only authority responsible for the advancement and
allocation of judges. But this independence would not be exempt
from every kind of control, such as public opinion, and
disciplinary authority to some extent distinct from the
_personnel_ of the bench; for otherwise the judicial authority
would soon become another form of insupportable tyranny.
The most effectual mode of securing the independence of the judges
is to improve their position in life. For admitting that a fixed
stipend, payable every month, makes a man content with a somewhat
lower figure, still it is certain that in these days, with a few
honourable exceptions, the selection of judges is not
satisfactory, because low salaries only attract such as could not
earn more by the practice of their profession.
The personal character of the bench vitally affects the quality of
the government as a whole. The most academic and exalted codes
are of little avail if there are not good judges to administer
them; but with good judges it matters little if the codes or
statutes are imperfect.
In criminal law the application of the statute to the particular
case is not, or should not be, a mere question of legal and
abstract logic, as it is in civil law. It involves the adaptation
of an abstract rule, in a psychological sense, to a living and
breathing man; for the criminal judge cannot separate himself from
the environment and social life, so as to become a more or less
mechanical _lex loquens_. The living and human tests of every
criminal sentence reside in
the conditions of the act, the
author, and reacting society, far more than in the written law.
Herein we have an opportunity of solving the old question of the
authority of the judge, wherein we have gone from one excess to
another, from the unbounded authority of the Middle Ages to the
Baconian aphorism respecting the law and the judge, according to
which the law is excellent when it leaves least to the judge, and
the judge is excellent when he leaves himself the least
independent judgment.
If the function of the criminal judge were always to be, as it is
now, an illusory and quantitative inquiry into the moral
culpability of the accused, with the equally quantitative and
Byzantine rules on attempt, complicity, competing crimes, and so
forth--that is to say, if the law were to be applied to the crime
and not to the criminal, then it is necessary that the authority
of the judge should be restrained within the numerical barriers of
articles of the code, of so many years, months, and days of
imprisonment to be dosed out, just as the Chinese law decides with
much exactitude the length and diameter of the bamboo rods, which
in the penal system of the Celestial Empire have the same
prominence as penitentiary cells have with us.
But if a criminal trial ought to be, on the other hand, a physio-
psychological examination of the accused, the crime being
relegated to the second line, as far as punishment is concerned,
the criminal being kept in the front, then it is clear that the
penal code should be limited to a few general rules on the modes
of defence and social sanction, and on the constituent
elements of every crime and offence, whilst the judge
should have greater liberty, controlled by the scientific and
positive data of the trial, so that he may judge the man before
him with a knowledge of humanity.
The unfettered authority of the judge is inadmissible in regard to
the forms of procedure, which for the prosecuted citizen are an
actual guarantee against judicial errors and surprises, but which
should be carefully distinguished from that hollow and
superstitious formalism which generates the most grotesque
inanities, such as an error of a word in the oath taken by
witnesses or experts, or a blot of ink on the signature of a
clerk.
III.
Scientific knowledge of criminals and of crime, not only as the
deed which preceded the trial, but also as a natural and social
phenomenon--this, then, is the fundamental principle of every
reform in the judicial order; and this, too, is a condemnation of
the jury. Whilst Brusa, one of the most doctrinaire of the
Italian classical school, foretold a steady decline of the
``technical element'' in the magistracy, and consequently a
persistent intervention of the popular influence in the
administration of justice, the positive school, on the other hand,
has always predicted the inevitable decline of the jury in the
trial of crimes and ordinary offences.[16]
[16] It is interesting to observe that Carrara, in spite of
his public advocacy of the jury, wrote in a private letter in 1870
(published on
the unveiling of his monument at Lucca):--``I
expressed my opinion as to the jury in 1841, in an article
published in the _Annals of Tuscan Jurisprudence_--namely, that
criminal justice was becoming a lottery. Justice is being
deprived of her scales and provided with a dice-box. This seems
to me to be the capital defect of the jury. All other defects
might be eliminated by a good law, but this one is inseparable
from the jury. . . . Even amongst magistrates we may find the
harsh and the clement; but in the main they judge according to
legal argument, and one can always more or less foresee the issue
of a trial{.??} But with juries all forecast is rash and
deceptive. They decide by sentiment; and what is there more vague
and fickle than sentiment{. .??} . . With juries, craft is more
serviceable to an advocate than knowledge. I once had to defend a
husband who had killed his wife's lover in a caf. I
challenged the bachelors on the jury, and accepted the married
men. After that, I was sure of success, and I succeeded. . . .
This is the real essential vice of the jury, which no legislative
measure could overcome.''
Theodore Jouffroy, after listening at the University of Pisa to a
lecture by Carmignani against the jury, said, ``You are defending
logic, but slaying liberty.''
Apart from the question whether liberty is possible without logic,
it is nevertheless a fact that there is always a prominent
political character in the jury. This accounts for the more or
less declamatory defences of this judicial institution, which is
no favourite with the criminal sociologist.
At the end of the eighteenth century, when there was a scientific
and legislative tendency towards the creation of an independent
order of magistrates, the French Revolution, mistrusting the whole
aristocracy and social caste, opposed this tendency, believing
enthusiastically in the omnipotence and omniscience of the people,
and instituted the jury. And whilst in the political order it was
inspired by classical antiquity, in the order of justice it
adopted this institution from England. The jury was not
unknown to the Republic of Athens and Rome, but it was
developed in the Middle Ages by the ``barbarians,'' as an
instrument which helped the people to escape from tyranny in the
administration of the law. It used to be said that the jury made
a reality of popular sovereignty, and substituted the common sense
and good will of the people for the cold dogmatism of the lawyers,
penetrated as they were by class prejudices. From this point of
view the jury was too much in accord with the general tendency of
the ideas of the day not to be greedily adopted. It was another
example of the close connection between philosophic ideas,
political institutions, and the judicial organisation.
The jury, transported to the Continent, in spite of the
improvements recorded by Bergasse in his report to the Constituent
Assembly, on August 14, 1789, was a mere counterfeit of that which
it was, and is, in England. But its political character is still
so attractive that it has many supporters to this day, though the
results of its employment in various countries are not very happy.
Yet, as the jury is a legal institution, we must consider its
advantages and defects, both from the political and from the legal
point of view, and accept the conclusion forced upon us by the
predominance of one or the other.
From the political standpoint, it is unquestionable that the jury
is a concession to popular sovereignty; for it is admitted that
the power of the law not only originates with the people, but is
also directly exercised by them.
The jury may also be a guarantee of civic and political liberties
as against the abuses of government, which are far more easy with
a small number of judges, more or less subordinate to the
government.
Again, the jury may be a means of affirming the sentiment of
equality amongst citizens, each of whom may to-morrow become a
judge of his equals, and of spreading political education, with a
practical knowledge of the law. It is true that, with this
knowledge of the law, juries also learn the details of every kind
of crime, without the equally constant evidence of virtuous
actions; and there is here a danger of moral contagion from crime.
But, from the political point of view, it is certain that the jury
may awaken, with a knowledge of the law, a consciousness of civic
duties, which are too frequently undertaken as a forced and
troublesome burden.
On these political advantages of the jury, however, a few remarks
may be made.
In the first place, the concession to popular sovereignty is
reduced to very small proportions by the limitations of the jury
list, and of the functions of the jury, which legislation in every
country is compelled to impose.
The essential characteristic distinguishing the jury from the
judge is especially marked by the origin of their authority; for
the jury is a judge simply because he is a citizen, whilst the
magistrate is a judge only by popular election or appointment by
the head of the State. So that any one who has entered on his
civil and political rights, and is of the necessary age,
ought, according to the spirit of the institution, to
administer justice on every civil or criminal question, whatever
its importance, and not only in giving the final verdict, but also
in conducting the trial. Yet not only is the ancient trial by
popular assemblies impossible in the great States of our day, but
also faith in the omniscience of the people has not availed to
prevent all kinds of limitations in the principle of the jury.
Thus the political principle of the jury is such that it cannot be
realised without misapprehension, limitation, and depreciation.
In fact, even in England, where the jury can of its own motion
declare in the verdict its opinions, strictures, and suggestions
of reform, as arising out of the trial, it is always subject to
the guidance of the judge, and it is not employed in the less
serious and most numerous cases, on which the whole decision is
left to magistrates, who apparently are not to be trusted to
decide upon crimes of a graver kind.
And as for the other political advantages of the jury, experience
shows us that the jury is often more injurious than serviceable to
liberty.
In the first place, in continental States the jury is but an
institution artificially grafted, by a stroke of the pen, on the
organism of the law, and has no vital connection or common roots
with this and other social organisms, as it has in England. Also
the example of classical antiquity is opposed to the institution
of the jury, which has been imposed upon us by eager imitation and
political symmetry; for if the jury had disappeared amongst
continental nations, this simply means that it did not find in the
ethnic
types, the manners and customs, the physical and
social environments of these nations, an adequate supply of
vitality, such as it has retained, for instance through so many
historical changes, amongst the Anglo-Saxons.
And if sometimes the jury can withstand the abuses of government,
still too frequently it does not withstand its own passions, or
the influence of the social class (the _bourgeoisie_ in our own
day), to which nearly all juries belong. It is notorious, in
fact, that the jury is more rigorous in regard to prisoners
accused of crimes against property than in regard to those accused
of crimes against the person, especially crimes instigated by
personal motives such as hate, vengeance, or the like; for every
juryman thinks that he himself might be a victim of the exploits
of a thief, or the attacks of a murderer for the sake of gain;
whereas there is less reason to fear a murder provoked by
vengeance, an outrage, an embezzlement of public money, or the
like. And Macchiavelli said that men would rather have blood
drawn from their veins than money from their pockets.
Besides, the same jury which will resist pressure from the
Government does not resist popular pressure, direct or indirect,
especially in view of the secrecy of their individual votes. No
doubt there are noble exceptions; but society is made up of
average virtues, and only upon them can it count.[17]
[17] In Dublin, for the trial of the murderers of Burke and Lord
Frederick Cavendish, in 1883, the empanelling of the jury was very
difficult, for nobody was willing to expose himself to the
vengeance of the fanatics.
And when it is continually asserted, in the words
of
Jouffroy, that the jury is an outpost of liberty, or in those of
Carrara, that it is its necessary complement, we have to remark
that this would be true if the jury were instituted by a despotic
government; but when popular liberties have far more effectual
guarantees in the political organisation of the State, then this
quality of the jury is more apparent than real.
In fine, either the government is despotic, and then juries are
not strong enough to preserve liberty, as in England from the time
of Henry VIII. to that of James II.; or, as Mittermaier said,
``when authority is corrupt, and the judge is cowardly or
terrorised, a jury cannot assist in the defence of liberty.'' Or
else the government is liberal, and then the judges also are
independent, so that there is no need of juries, especially with
the guarantees of their independence which I have already
indicated.
Now history reminds us that the jury is never instituted by
despotic governments. It was refused, for instance, in upper
Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in
Lombardy by Austria in 1849, and in our own day in Russia, for
political crimes, though it is allowed for ordinary crimes.
Thus the jury, as a political and liberal institution, is oddly
destined to be excluded when it would be serviceable, and to be
useless when it is admitted. It reminds us of the destiny of the
National Guard.
But, even in England, the jury is regarded as especially a legal
institution; and the main qualities attributed to it in this
connection are moral judgment and private conviction.
The law, we are told, has always a certain harshness and
insufficiency, for it ought to provide for the future whilst
grounding itself on the past, whereas it cannot foresee all
possible cases. Progress is so rapid and manifold, in modern
society, that penal laws cannot keep pace with it, even though
they are frequently recast--as for instance in Bavaria, which in
one century has had three penal codes, and in France, where an
almost daily accumulation of special laws is piled upon the
original text of the most ancient code in Europe.
The jury, by its moral judgment, corresponding in some degree to
the equity of the ancients, is able to correct the _summum jus_
with verdicts superior to the written law. And, in addition, the
jury always follows its private conviction, the inspiration of
sentiment, the voice of the conscience, pure instinct, in place of
the stern and artificial maxims of the trained lawyer.
I do not deny these qualities of the jury; but I very much suspect
that they are serious and dangerous vices rather than useful
qualities in a legal institution.
In the first place, I believe that the distinction of powers or
social functions, corresponding to the natural law of division of
labour, ought not to be destroyed by the jury. The duty of the
judicial power, before everything else, is to observe and apply
the written law; for if we once admit the possibility that the
judge (popular or trained) has to amend the law, all guarantee of
liberty is lost, and the authority of the individual is unlimited.
As I have said above,
we allow the authority of the judge
only when we have actual guarantees of his capacity and
independence, and always within the limits of the general precepts
of the law, and under the control of a superior disciplinary
power.
But the omnipotence of the jury, liberated from all reasonable
regulation, with no directing motives for its verdict, and no
possibility of control, is a two-edged blade, which may sometimes
improve upon the law, or at least usefully indicate to the
legislator the tendencies of public opinion in regard to a
particular crime. But it may also violate the law, and the
liberty of the individual, and then we pay too dear for the slight
advantage which the jury can confer, and which might be replaced
by other manifestations of public opinion. In any case, as
Bentham said, it is better to have our remedy in the law than in
the subversion of the law.
As for private conviction, we willingly admit that no system of
legal proof is acceptable. But it is one thing to substitute for
the legal and artificial assurance of the law the assurance of the
judge who tries the case, and quite another thing to substitute
for conviction founded on argument, and for a critical examination
of the evidence collected during the trial, the blind and simple
promptings of instinct or sentiment.
Even apart from technical notions, which we consider necessary to
the physio-psychological trial of any accused person, social
justice certainly cannot be dispensed through the momentary and
unconsidered impressions of a casual juryman. If a criminal trial
consisted of the simple declaration that a particular
action was good or bad, no doubt the moral consciousness of the
individual would be sufficient; but since it is a question of the
value of evidence and the examination of objective and subjective
facts, moral consciousness does not suffice, and everything should
be submitted to the critical exercise of the intellect.
To the instinctive blindness of the judgment of juries we must add
their irresponsibility.
No doubt if the legislator required from all judges a simple Yes
or No, then perhaps the jury would be as good as the magistrate.
But instead of the unexplained verdict which Carmignani called
``the method of the cadi,'' we are of opinion that there should
always be substituted a sentence based on reasons and capable of
control, especially in the positive system of criminal procedure,
which demands from the judge an acquaintance with anthropology and
criminal sociology, and from his sentence the elements necessary
to the subsequent treatment of the convict, in agreement with the
characteristics of his individuality and of his crime.
But not only is the jury devoid of the qualities attributed to it;
it has a fatal defect, which alone is sufficient to condemn this
institution of the law.
In the first place, it is not easy to understand how a dozen
jurymen, selected at hazard, can actually represent the popular
conscience, which indeed frequently protests against their
decisions. In any case, the fundamental conception of the jury is
that the mere fact of its belonging to the people gives it the
right to judge; and as the ancient assemblies are no
longer
possible, the essence of the jury is that chance alone must decide
the practical exercise of this popular prerogative.
Now these two conceptions of the jury are in manifest
contradiction with the universal rule of public end private life,
that social functions should be exercised by persons selected as
most capable.
Thus in everyday life we all require of every labourer the work of
which he is more particularly capable. No one would dream, for
instance, of having his watch mended by a cobbler. The
administration of criminal justice, on the contrary, is demanded
of any one we chance to come across, be he grocer or man of
independent means, painter or pensioner, who may never in his life
have witnessed a criminal trial!
The irregularity of our statutes corresponds to the incapacity of
individual jurymen; for it is evident that we cannot impose the
rigorous process of a special mode of procedure on the first-
comer. And the law heightens the absurdity by plainly declaring
that juries must give their decision without regard to the
consequences of their verdict! ``Jurymen fail in their highest
duty when they have regard to the penal law, and consider the
consequences which their verdict may have upon the accused''
(Article 342 of the French code of criminal procedure).
That is to say, criminal justice should be based on the neglect of
the elementary rule of justice, according to which every man ought
always to consider the possible consequences of his actions. And
the criminal law demands from juries this proof of
their
blindness (which is fortunately impossible) that they should judge
blindfold, with no regard for the prisoner, or for the
consequences which their verdict may have upon him.
It was impossible that the advocates of the jury should fail to
see the absurdity of these principles; and they have been
compelled to slur them over, at any rate in ordinary practice.
In respect of the composition of juries, restrictions have been
introduced, by means of lists of eligible persons, selection by
lot, the optional exclusion of a certain number of jurymen by the
public prosecutor and the defence, &c. All these expedients,
however, some of which are imposed by necessity, can only insure a
general and presumptive capacity, for they have the merely
negative effect of contributing to exclude the most manifest moral
or intellectual incapacity. But the only capacity which is
necessary in a judge, which is a special and positive capacity, is
not guaranteed by these restrictions, which, after all, are a
negation of the very principle of the jury.
And even if the jury were always composed of persons of adequate
capacity, it would still be condemned by two inevitable arguments
of human psychology.
First, the assembling of several individuals of typical capacity
never affords a guarantee of collective capacity, for in
psychology a meeting of individuals is far from being equivalent
to the aggregate of their qualities. As in chemistry the
combination of two gases may give us a liquid
so in
psychology the assembling of individuals of good sense may give us
a body void of good sense. This is a phenomenon of psychological
fermentation, by which individual dispositions, the least good and
wise, that is the most numerous and effective, dominate the better
ones, as the rule dominates the exceptions. This explains the
ancient saying, ``The senators are good men, but the Senate is a
mischievous animal.''
And this fact of collective inferiority, not to say degeneracy, is
observed in casual assemblies, such as juries, meetings, and the
like, far more than in organised and permanent councils of judges,
experts, &c.
Secondly, the jury, even when composed of persons of average
capacity, will never be able in its judicial function to follow
the best rules of intellectual evolution.
Human intelligence, in fact, both individual and collective,
displays these three phases of progressive development: common
sense, reason, and science, which are not essentially different,
but which differ greatly in the degree of their complexity. Now
it is evident that a gathering of individuals of average capacity,
but not technical capacity, will in its decisions only be able to
follow the rules of common sense, or at most, by way of exception,
the rules of reason--that is, of their common mental habits, more
or less directed by a certain natural capacity. But the higher
rules of science, which are still indispensable for a judgment so
difficult as that which bears on crimes and criminals, will always
be unknown to it.
As for the irregularity of the action of a jury, it has been
deemed that this can be provided against by the formal distinction
between a decision of fact and a decision of law, in obedience to
the advice of Montesquieu, that ``to the popular judgment we
should submit a single object, a fact, a single fact.''
But without dwelling on the remark of Hye-Glunek, that in this way
the legal problem, which ought to be as indivisible as the
syllogism which creates it, is cut into two parts, it is evident
that Cambacrs was amply justified in saying, in the
Council of State, that the separation of fact from law is a
fallacy.
In fine, not only under the positive system of criminal procedure,
which demands of the judge, in addition to legal conceptions of
crime, some anthropological and sociological knowledge of
criminals, but even at the present day it is more correct to say
that the jury is concerned with the crime--that is, in the words
of Binding, with a legal fact, and not merely a material fact;
whilst the judge is concerned with the punishment. Thus, in the
Assize Court, the separation of the judgments is not between fact
and law, but only between the crime and the punishment
Even admitting the possibility of this separation of fact and law,
logic and experience have already belied the assertion of those
who say with Beccaria that, ``for the appreciation of facts,
ordinary intelligence is better than science, common sense better
than the highest mental faculties, and ordinary training better
than scientific.''
On the contrary, a criminal trial is not only concerned with the
direct perception of facts, but also and especially with their
critical reconstruction and psychological appreciation. In civil
law the fact is really accessory, and both sides may be agreed in
its exposition, whilst disputing about the application of the law
to this fact. But in criminal justice the fact is the principal
element, and it is not merely necessary to admit or to decide upon
this or that detail, but we have also to regard its causes and
effects, from the individual and the social point of view, without
speaking of the common difficulty of a critical and evidential
appreciation of a mass of significant circumstances. So that, as
Ellero said, in a criminal trial the decision as to fact is far
more difficult than that as to law. And by this time daily
practice has accumulated so many proofs, more or less scandalous,
of the incapacity of the jury even to appreciate facts, that it is
useless to dwell upon them.
To conclude this question of the jury, it remains to speak of its
defects, which are not the more or less avoidable consequences of
a more or less fortunate application of the principle, which might
be the case with any social institution, but, on the contrary, are
an inevitable consequence of the laws of psychology and sociology.
So far as science is concerned, a fact exists in connection with a
general law. For common sense, on the other hand, the actuality
of the particular fact is the only matter of concern. Hence the
inevitable tendency of the jury to be dominated by isolated
facts, with no other guide than sentiment, which,
especially in southern races, confines all pity to the criminals,
whilst the crime and its victims are all but forgotten. The very
keenness of sentiment which would urge the people to administer
``summary justice'' on the criminal, when surprised in the fact,
turns entirely in his favour when he is brought up at the assizes,
with downcast mien, several months after the crime. Hence we
obtain an impassioned and purblind justice.
And the predominance of sentiment over the intelligence of the
jury is revealed in the now incurable aspect of judicial
discussions. There is no need and no use for legal and
sociological studies and for technical knowledge; the only need is
for oratorical persuasiveness and sentimental declamations. Thus
we have heard an advocate telling a jury that, ``in trials into
which passion enters, we must decide with passion.'' Hence, also,
the deterioration of science in the Assize Courts, and its faulty
application, and its completely erroneous consequences.
Moreover, the verdict of the jury cannot represent the sum of
spontaneous and individual convictions--not only in countries
where juries are exposed to all kinds of influences during the
adjournments of the discussion, but even in England, where
unanimity is required, and where all communication of the jury
with the outer world is forbidden until the end of the trial. For
in every case the influence of the most intriguing or most
respected jurymen in the jury's room is always inevitable. So
that we have even
had irresponsible suggestions of public
deliberation on the part of the jury.
Against these defects of the jury its advocates have set an
objection in regard to the trained judge, namely that the habit of
judging crimes and offences irresistibly inclines the judge to
look upon every prisoner as guilty, and to extinguish the
presumption of innocence even in cases where it would be most
justified.
This objection has really a psychological basis; for the
conversion of the conscious into the unconscious, and the
polarisation of the intellectual faculties and dispositions, are
facts of daily observation, determined by the biological law of
the economy of force. But it is not sufficient to make us prefer
juries to judges.
In addition to the fact that this mental habit of judges may be
counteracted by a better selection of magistrates under the
reforms which I have indicated, it is to be observed that this
presumption of innocence, as we have seen, is not so absolute as
some would have us believe, especially in case of a trial which
follows upon a series of inquiries and proofs in; the preliminary
hearing.
Again, this tendency of judges is restrained and corrected by the
publicity of the discussions. And all, or nearly all, the famous
and oft-repeated instances of judicial errors go back to the time
of the inquisitorial and secret trial--in regard to which an
interesting historical problem presents itself; that is to say the
co-existence of the inquisitorial trial, which impairs every
individual guarantee, with the political liberties of the
medival Italian republics.
This is why the number of acquittals, and of the admission of
extenuating circumstances, is always very remarkable, even in the
Correctional Tribunals, which in Italy show proportions not
greatly differing from those of the Assize Courts.
We must remember that, under our modern penal procedure, it is not
the individual guarantees that are lacking, such as the assigning
of reasons for the sentence, the almost total abolition of
punishments which cannot be reconsidered, appeals, reversals,
revision, which would be still more efficacious under the positive
system which we propose.
One logical consequence of the psychological objection raised
against judges would be the granting of a jury even in the
Correctional Tribunals, though the experience which we have of it
in the Assize Courts is not so encouraging as to leave many
advocates of a jury in the minor courts.
But a decisive objection, founded on the most positive data of
sociology, can be raised against the jury.
The law of natural evolution proves that no variation in the
vegetable or animal organism is useful or durable which is not the
outcome of a slow and gradual preparation by organic forces and
external conditions. Thus an organ which ceases to have a
function to discharge is subject to atrophy, and no new organ is
possible or capable of development if it is not required by a new
function to which it corresponds.
What has been said of organic variations is also true of social
institutions. And when the jury is contemplated from this point
of view, we see that
it has been artificially grafted by a
stroke of the legislator's pen on the judicial institutions of the
continent, without the long-continued, spontaneous and organic
connections which it had, for instance, with the English people.
The jury had even disappeared from the continental countries in
which it had left traces of former existence; for it had not found
in the race-characteristics or the social organism that favourable
environment which is supplied in England by the natural groundwork
of institutions and principles which, as Mittermaier says, are its
necessary correlative.
The jury, as it has been politically established on the continent
of Europe, is what Spencer calls a false membrane in the social
organism, having no physiological connection with the rest of the
body politic. So that it is not yet acclimatised, even in France,
after a century of uninterrupted trial.[18]
[18] The actual state of the law in Europe, so far as regards the
jury for common crimes and offences, is as follows:--England,
Scotland, Ireland, and Switzerland have the jury for assizes and
courts of first instance. France, Italy, Cisleithan Austria,
Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria,
Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia,
and Malta, have the criminal jury only. Spain had suspended it,
but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have
the criminal jury and _echevins_ (bodies of citizens sitting with
the judges) for correctional and police cases. Denmark, Sweden,
and Finland, have the _echevins_. Holland, Norway, Hungary,
Slavonia, Poland, Servia, and Turkey, have neither juries nor
_echevins__.
As for the other bio-sociological law, of single organs for single
functions, it seems to me that if in England the jury and the
magistracy have been developed side by side and interwoven, this
is only a case of organic integration. But on the continent, as
the jury has been added artificially to the magistracy,
this is on the other hand a genuine example of non-natural growth.
And if it be said that the jury, as an advance from the
homogeneous to the heterogeneous, indicates a higher degree of
social evolution, we must draw a distinction between
differentiations which amount to evolution and those which, on the
contrary, are symptoms of dissolution. Division of labour,
physiological or social, is a true evolutionary differentiation;
whilst modifications introduced by a disease in the animal
organism, or by a revolt in the social organism, are but the
beginning of a more or less extended dissolution.
Now the jury belongs to the domain of social pathology, for it is
essentially contrary to the law of the specialisation of
functions, according to which every organ which becomes more
adapted to a given task is no longer adapted to any other. It is
only in the lower organisms that the same tissue or organ can
perform different functions, whilst in the vertebrates the stomach
can only serve for digestion, the lungs for oxygenation, and so
on. Similarly in primitive societies, each individual is soldier,
hunter, tiller of the soil, &c., whilst with the progress of
social evolution every man performs his special function, and
becomes unfitted for other labours. In the jury we have a return
to the primitive confusion of social functions, by giving to any
chance comer, who may be an excellent labourer, or artist, a very
delicate judicial function, for which he has no capacity to-day,
and will have no available experience to-morrow.
In modern societies, to tell the truth, there is another function
assigned to all citizens, outside of their special capacity, and
that is the electoral duty. But the cases are very different.
The franchise does not demand a labour so difficult and delicate
as critical judgment, and the reconstruction of the conditions of
an act and of its author. It has no direct influence on the
positive function of the person elected, but on the contrary it is
a confession of the special incapacity of the elector to do what
he intrusts to the capacity of the person elected. The franchise
is but an elementary function of the assimilation of physiological
elements in the social organism, which in the animal organism is
performed by the aggregate of living cells, and in society by the
aggregate of individuals, not being idiots or criminals, who
possess the minimum of social energy.
Far different is the administration of criminal justice, a
technical and very noble function, which has nothing in common
with the elementary function of the franchise. I could not indeed
agree with the assertion of Carrara, who thought it a
contradiction to deny to the people any participation in the
exercise of the judicial authority when they are allowed to
participate in the exercise of legislative authority. In the
first place, the people have but a very indirect share in the
legislative function, and, even where the referendum exists, very
useful as I believe it to be, the people have only a simple,
almost negative function, to say Yes or No to a law which they
have not made, and would have had no technical ability to make.
Thus the argument of Carrara could
only lead to the popular
election of judges, as of legislators, and to a control by the
people of the administrative action of the judges when elected No
doubt this would have theoretical advantages, though in my opinion
it would raise practical difficulties, especially in nations which
do not possess a very keen conscience and political activity,
after enfeeblement by centuries of despotism, or of political and
administrative tutelage and centralisation.
The jury, then, is a retrogressive institution, as shown by
history and sociology, for it represents the medival and
instinctive phase of criminal justice. It has, indeed, a few
advantages (there is always a certain profit in misfortune),
especially when it operates on the final outcome of the classical
theories--bringing to bear, for instance, an irresistible force
against repeated theft, or murders committed at the instigation of
others. And it has sometimes drawn attention to necessary penal
reforms, after accepting certain conclusions of the positive
school, such as the acquittal of criminals of passion, and
political prisoners, or a greater severity towards habitual
criminals.
But the only possible conclusion from the foregoing criticisms is
that the jury should be abolished for the trial of common crimes,
_*after_ the introduction of reforms which would ensure the
capacity and independence of the judges.
Meanwhile, since it is much easier to establish a new social
institution than to abolish one, it is worth while to indicate the
principal and most urgent reforms which should be made in the jury
system, so as to eliminate its more serious and frequent
disadvantages.
The theoretical distinction of the classical school between
ordinary and political crimes is not very precise, for the so-
called political crimes are either not crimes (as when they are
confined to the manifestation of an idea), or they are common
crimes which spring from a lofty and social passion in
individuals, who have the characteristics of the criminal by
passion, or, in other words,--are but quasi-criminals; or else
they are common crimes committed by ordinary malefactors, under
the pretext of a popular idea. Instead of distinguishing crimes,
I think we ought to distinguish between ordinary and political
criminals, according to their determining motives, and the social
bearings and historical moment of their acts. At the same time,
whilst our criminal laws retain this distinction, I think it is
useful to keep the jury for the trial of political crimes and
offences, and for those connected with the press and with society
as a whole; for if in these cases the jury might yield to the
influence of class interests and prejudices (as for instance in
the trial of actions arising out of the conflict of capital and
labour), the danger will still be less than it would be with
judges alone, who are not sufficiently independent of the
executive, which in its turn is but the secular arm of the
dominant class, and which therefore combines the interests and
prejudices of the political order with those of the economic and
moral order which dominate the jury.
For common crimes it would be necessary to with
hold from a
jury the trial of prisoners who avow their crime. The essence of
a trial by indictment is the principle that the discussion as to
punishment is a private affair, and it has no further ground for
existence when one of the parties withdraws from the duel. Hence
the English mistrust of a prisoner's confession of guilt, which in
the inquisitorial trial, on the other hand, is a mainstay of the
evidence. Yet I believe that in these cases the Scottish system
is preferable to the English. In England the judge begins by
asking the prisoner if he is Guilty or Not Guilty, and in case of
a confession he passes sentence without a verdict from the jury.
In Scotland, on the contrary, the prosecutor can furnish his
proof, in spite of the confession of the prisoner, and demand a
verdict from the jury. In this way it is possible to avoid not
only a scandalous acquittal of prisoners who have confessed their
guilt (as happens in Italy, France, and elsewhere), but also the
danger that the confession may not be true, and that an innocent
man may be condemned.
Juries ought, moreover, as proposed by M. Ellero, to specify
attenuating circumstances, on each of which a special question
ought to be put to them.
The jury ought also to have the right of spontaneously finding in
a sense less serious than that of the charge, even when no
corresponding question has been put to them.
But at the same time it cannot be denied that these would only be
palliatives, more or less efficacious.
The only positive conclusion is that, whilst retaining the jury
for crimes of the political and social
order, we should aim
at its abolition for common crimes, immediately after securing
stringent reforms as to the independence and capacity of the
judges.
IV.
It needs no further demonstration that the modern organisation of
punishment, based partly on the assumption that we can measure the
moral culpability of criminals, and partly on an illusion as to
their general amendment, and almost entirely reduced, in
consequence, to imprisonment and the cell system, has absolutely
failed to protect society against crime.
Holtzendorff, one of the best known of the classical school,
frankly confessed that ``the prison systems have made shipwreck.''
So also in Italy we have had disquisitions ``on the futility of
repression,'' and in Germany it has been held that ``existing
criminal law is powerless against crime.'' Thus the necessity of
taking steps to counteract this failure is forced upon us more and
more every day. We must proceed either by way of legislative
reforms, as effectual as we can make them, but always inspired by
reaction against the established prison system, or by a propaganda
on scientific lines. The most striking form which has been taken
by the latter process is the International Union of Penal Law,
which in 1891, two years after its foundation, numbered nearly six
hundred members of various nationalities, and which in the second
clause of its charter, in spite of the varied reservations of a
few members, notably supported the positive theories.
The defects of the penal system inspired by the
theories of
the classical school of criminal law, and by the actual
regulations of the classical prison school, may be briefly summed
up. They are, a fallacious scale of moral responsibility;
absolute ignorance and neglect of the physio-psychological types
of criminals; intervals between verdict and sentence on the one
hand, and between the sentence and its execution on the other,
with a consequent abuse of pardons; disastrous practical effects
of corruption and of criminal association in prisons; millions of
persons condemned to short terms of imprisonment, which are
foolish and absurd; and a continuous, inexorable increase of
recidivism.
So that the tribunals of Europe, as M. Prins observed, with the
absolute impersonality of modern justice, allow their sentences to
fall upon unhappy wretches as a tap allows water to fall drop by
drop upon the ground.
Without counting fines or police detention, there were sentenced
in Italy, in the ten years 1880-89, to various terms of
imprisonment, 587,938 persons by the Pretors, and 465,130 by the
Correctional Tribunals. That is, more than a million terms in the
minor courts within ten years!
And the total number sentenced in Italy to various punishments, by
Pretors, Tribunals, and Assize Courts, in the same ten years, was
not less than 3,230,000.
As for recidivism, without repeating the familiar figures of its
annual increase, it will suffice to recall the astounding fact to
which I drew attention before the central Commission of Legal
Judicial Statistics.
That is to say, amongst the prisoners
condemned in 1887 for simple homicide, there were 224 who had been
already condemned, either _*for the same crime_ (63), or for a
crime mentioned in the same section of the penal code (181); and
even of those condemned for qualified manslaughter, 78 had already
been condemned, either _*for the same crime_ (8), or for one of
like character.
In France we have figures equally striking, for they relate not to
the effect of exceptional conditions, or conditions peculiar to
this or that country, but to the uniform consequence of the
classical theories of criminal law and prison organisation.
The total number condemned to imprisonment by the French
tribunals, and detained by the police, in the ten years 1879-88,
was 1,675,000; the Tribunal sentences under six days being
113,000.
And the total condemned to punishments of various kinds, by Assize
Courts, Tribunals, and police courts, reached in the same ten
years the enormous number of 6,440,000 individuals!
The meaning of this is that penal justice at the present moment is
a vast machine, devouring and casting up again an enormous number
of individuals, who lose amongst its wheels their life, their
honour, their moral sense, and their health, bearing thenceforth
the ineffaceable scars, and falling into the ever-growing ranks of
professional crime and recidivism, too often without a hope of
recovery.[19]
[19] As regards recidivism and the enormous numbers tried, England
is in as bad a position as Italy and France. See my articles in
_Nineteenth Century__, 1892, and _Fortnightly Review__, 1894.--ED.
It is impossible, then, to deny the urgent necessity
of
substituting for our present penal organisation a better system
corresponding to the governing conditions of crime, more effectual
for social defence, and at the same time less gratuitously
disastrous for the individuals with whom it deals.
The positive school, in addition to the partial reforms proposed
by Lombroso, and by myself in the second edition of this work, has
put forward in the _Criminology_ of Garofalo a ``rational system
of punishment,'' whereof it is desirable to give a summary.
I. MURDERERS (moral insensibility and instinctive
cruelty) who commit--
Murder for greed, or other selfish
gratification Criminal Lunatic Asylums: or
Murder unprovoked by the victim the death penalty.
Murder with attendant cruelty
II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency
of the sense of pity, with prejudices on the
subject of honour, on the duty of revenge, &c.).
Adults who commit--
Violent assault suddenly provoked Removal of the offender from the
by a cruel injury neighbourhood of the victim or
Justifiable homicide in self-defence his family.
Transportation to an island, colony
Homicide to avenge honour (isolated or village--at liberty, under
or endemic) supervision (for an indefinite
period, with from 5 to 10 years
supervision).
Bodily injury during a quarrel; Damages and fine: heavy for such
slight and transitory malice; as can pay. Alternative
blows; threats; slander; verbal penalty:--deduction from wages,
insults or forced labour. Imprisonment
in case of refusal.
Malicious injury or disfigurement; Criminal lunatic asylum (for
mutilation; rape or outrage with hysterical or epileptic), or
violence; restraint on personal Transportation for an indefinite
liberty period, with supervision from 5
to 10 years.
Young persons who commit--
Criminal lunatic asylums (for
those with congenital
Crimes of violence without excuse, tendencies).
or rape Penal colony in case of relapse.
Transportation without constraint.
III. DISHONEST CRIMINALS. Adults who commit--
Habitual theft, swindling, incendiarism, Lunatic asylums (if insane or
forgery, extortion epileptic). Transportation.
Labour-gangs (unfixed periods);
Occasional theft; swindling; or suspension of right to exercise
forgery; extortion; incendiarism a profession, until complete
reparation of damage.
Peculation; embezzlement; sale of Loss of office. Suspension of
offices; abuse of authority civil rights. Fine. Restitution.
Reparation of damage (with optional
Incendiarism; vindictive destruction imprisonment). Criminal
of property (without personal lunatic asylums (for the insane).
injury) Transportation (for recidivists).
Bankruptcy, when due to malpractice Restitution. Prohibition to trade
or to discharge public functions.
Uttering false coin; forgery of stock Imprisonment (unfixed periods)
and certificates; personation, and fine, in addition to loss of
false witness, &c. office, and restitution.
Bigamy, palming or concealment of Banishment for unfixed periods.
birth
Young persons who commit--
An agricultural colony (for unfixed
Theft, swindling, &c. periods).
IV. Persons guilty of--
Outbreaks, resistance or disobedience Imprisonment (for unfixed periods)
to authority
In other words, the system of repression proposed
by M. Garofalo amounts to this:--
Absolute elimination of the criminal
Penalty of death
Criminal lunatic asylum.
Transportation with liberty.
Perpetual banishment.
Relative elimination Banishment for various periods.
Agricultural colonies.
Interdiction from a particular
neighbourhood.
By payment of money.
Reparation of damages Deduction from wages.
Fine (going to the State) Forced labour, without
Indemnification of the victims imprisonment.
Imprisonment for fixed periods for special offences (forgery and outbreaks);
or as alternative to indemnification or forced labour.
Interdiction of certain professions and public functions.
M. Liszt also, agreeing with the positive school in regard to the
necessity of a radical reform in the penal system, yet with
certain reservations, has propounded a scheme, which, however, as
it does not sufficiently consider various classes of criminals,
whom he divides merely into the habitual and the occasional, would
need completion, especially in comparison with the well-reasoned
scheme of Garofalo. M. Liszt's system is as follows:--
_Punishment by fines_.
In proportion to the property of the
offender--not alternative with For _offences_ (with alternative
imprisonment imprisonment).
Capable of being worked out by For _contraventions of the law_
forced labour without imprisonment (without imprisonment).
_Conditional sentences_.
For first offenders condemned to
imprisonment, with or without For _offences_ punishable by
sureties for three years imprisonment.
__Imprisonment_ (for an indeterminate period, a maximum and minimum
being enacted).
Separate confinement--six weeks to two years.
House of detention (separate for 2 to 15 years (with police
one year, then gradual relaxation supervision and assistance of
discharged prisoners)--or for life.
_Indemnifications_ (always as a civil liability) added to other penalties.
I believe, however, that it is necessary, before laying down
practical and detailed schemes, more or less complete, to
establish certain general criteria, based upon the
anthropological, physical, and social data of crime, such as may
lead up to a positive system of social defence.
These fundamental criteria, it seems to me, can be reduced to the
three following:--(1) No fixity in the periods of segregation of
criminals; (2) the social and public character of the exaction of
damages; (3) the adaptation of defensive measures to the various
types of criminals.
1. For every crime which is committed, the problem of punishment
ought no longer to consist in administering a particular dose, as
being proportionate to the moral culpability of the criminal; but
it should be limited to the question whether by the actual
conditions (breach of law or infliction of injury) and by the
personal conditions (the anthropological type of the criminal) it
is necessary to separate the offender from his social environment
for ever, or for a longer or shorter period, according as he is or
is not regarded as capable of being restored to society, or
whether it is sufficient to exact from him a strict reparation of
the injury which he has inflicted.
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 assigning 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 classical 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 classical 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 medival laws.
So that there are some of the classical 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 assigned 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
Ponts, and Roeder, who quote as favourable, though only for
recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve,
von Lichtenberg, Gtting, 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 classical theories, though they run
somewhat to excess, like Mittelstdt, 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
rgime,'' 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
Association, 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 classical 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
circumstances 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 Atalanta{sic} (1887), Buffalo (1888), and
Nashville (1889), has been applied also in the New York prisons,
and in the States of Massachusetts, 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 passed
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 associated
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 passing 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 pronounce 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
applica
tion, 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
documents, 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 classical 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, classifying 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 assess 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 restitution 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 substitute for a few days'
imprisonment an effectual indemnification of the injured party.
Reparation of damage might become a genuine penal substitute, 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 as
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 classical 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
pass 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 assignment 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 restitution 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 assign 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 assured 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
assumes 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 classical principles in this respect, and the practical
consequences which flow from them, are more like a humorous farce
than an institution 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
trespass 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.
The tendency of the classical theories on crime and prison
discipline is in sharp contrast, for their ideal is the
``uniformity of punishment'' which lies at the base of all the
more recent penal codes.
If for the classical school the criminal is but an average and
abstract type, the whole difference of treatment is, of course,
reduced to a graduation of the ``amount of crime'' and the
``amount of punishment.'' And then it is natural that this
punitive dosing should be more difficult when the punishments are
different in kind, and not very similar in their degrees of
coincident afflictive and correctional power. Thus the ideal
becomes a single punishment, apportioned first by the legislature
and then by the judge, in an indefinite number of doses.
Here and there a solitary voice has been heard, even amongst the
classical experts, objecting to this tendency towards dogmatic
uniformity; but it has had no influence. The question brought
forward by M. D'Alinge at the Prison Congress in London
_(Proceedings_, 1872, p. 327), ``whether the moral classification
of prisoners ought to be the main foundation of penitentiary
systems, either in association or on the cellular plan,'' which he
himself decided in the affirmative, was not so much as discussed,
and it was not even referred to at the
successive
Congresses at Stockholm (1878), Rome (1885), and St. Petersburg
(1889). On the contrary, the Congress at Stockholm decided that,
``reserving minor and special punishments for certain slight
infractions of the law, or for such as do not point to the corrupt
nature of their authors, it is desirable to adopt for every prison
system the greatest possible legal assimilation of punishments by
imprisonment, with no difference except in their duration, and the
consequences following upon release.''[20]
[20] _Proceedings__, i. 138-70, 551-7, 561-3. Now and then,
however, a prison expert of more positive tendencies maintains
``the very great use, or rather the scientific necessity, of the
classification of prisoners as a basis for the punitive and prison
system'' (Beltrani Scalia.)
To positivists, the ``uniformity of punishment,'' even of mere
detention, appears simply absurd, since it ignores the capital
fact of different categories of criminals.
There must be homogeneity between the evil and its remedy; for, as
Dumesnil says, ``the prisoner is a moral (I would add a physical)
patient, more or less curable, and we must apply to him the great
principles of the art of medicine. To a diversity of ills we must
apply a diversity of remedies.''
In this connection, however, we must avoid the two extremes,
uniformity of punishment and the so-called individualisation of
punishment, the latter especially in fashion amongst American
prison experts. No doubt it would be a desirable thing to apply a
particular treatment to each convict, after a physical and
psychological study of his individuality, and of the conditions
which led him into crime; but this is not practicable when the
number of prisoners is
very great, and the managing staff
have no adequate notions of criminal biology and psychology. How
can a governor individualise the penal treatment of four or five
hundred prisoners? And does not the cellular system, which
reduces the characteristic manifestations of the personal
dispositions of prisoners to a minimum, levelling them all by the
uniformity of routine and silence, render it impossible to observe
and get to know the special character of each condemned person,
and so specialising the discipline? Where, too, are we to find
the necessary governors and warders who would know how to
discharge this difficult duty? The solid fact that particular
houses of correction or punishment are in excellent condition when
their governors have the psychological intuition of a De Metz, a
Crofton, a Spagliardi, or a Roukawichnikoff, and languish when he
departs, strikingly demonstrates that the whole secret of success
lies in the spirit of a wise governor, skilled in psychology,
rather than in the slender virtue of the cell.
Just as an imperfect code with good judges succeeds better than a
``monumental'' code with foolish judges, so a prison system,
however ingenious and symmetrical, is worthless without a staff to
correspond.
And as the question of the staff is always very serious,
especially for financial reasons, I believe that, instead of the
impracticable idea of individualisation in punishment, we ought to
substitute that of classification, which is equally efficacious
and more easily applied. It cannot be denied that criminal
anthropologists are not all agreed on the classification of
criminals. But I have already shown that the differences
between proposed classifications are only formal and of secondary
importance; and again, the number of those who agree to the
classification which I have proposed increases day by day.
Before inquiring how we can practically organise the positive
system of social defence on the basis of this anthropological
classification of criminals, we must bear in mind two rules,
common to all the technical proposals of the same system.
First, care must be taken that segregation does not become or
continue to be (as it is too often at present) a welcome refuge of
idleness and criminal association, instead of a deprivation.
Penitentiaries for condemned prisoners--the classical prison
experts make no distinction between their cells for prisoners
before trial and those for convicts!--should not be so comfortable
as to excite the envy (a vast injustice and imprudence) of the
honest and ill-fed rural labourer vegetating in his cottage, or of
the working-man pining in his garret.
Secondly, the obligation to labour should be imperative for all
who are in prison, except in case of sickness. Prisoners should
pay the State, not as now for their tobacco and wine, but for
food, clothes, and lodging, whilst the remainder of their earnings
should go to indemnify their victims.
The classical theory declares that ``the State,'' as Pessina
writes, ``being compelled to adopt deprivation of liberty as the
principal means of penal repression and retribution, contracts an
absolute
obligation to provide those whom they punish in
this way not only with bodily sustenance, but also with the means
of supplying their intellectual and moral needs.'' So the State
maintains in idleness the majority even of those who are said to
be ``sentenced to hard labour,'' and the offence, after it has
served the turn of the offender, further assures him free lodging
and food, shifting the burden on to honest citizens.
I cannot see by what moral or legal right the crime ought to
exempt the criminal from the daily necessity of providing for his
own subsistence, which he experienced before he committed the
crime, and which all honest men undergo with so many sacrifices.
The irony of these consequences of the classical theories could
not, in fact, be more remarkable. So long as a man remains
honest, in spite of pathetic misery and sorrow, the State takes no
trouble to guarantee for him the means of existence by his labour.
It even bans those who have the audacity to remind society that
every man, by the mere fact of living, has the right to live, and
that, as work is the only means of obtaining a livelihood, every
man has the right (as all should recognise the duty) of working in
order to live.
But as soon as any one commits a crime, the State considers it its
duty to take the utmost care of him, ensuring for him comfortable
lodging, plenty of food, and light labour, if it does not grant
him a happy idleness! And all this, again, in the name of eternal
and retributive justice.
It may be added that our proposals are the only
way of
settling the oft-recurring question as to the economic competition
(by the price of commodities), and the moral competition (in the
regularity of work) which prison labour unjustly wages with free
and honest labour. As a matter of fact, as prisoners can only
remain idle or work, they must clearly be made to work. But they
must be made to work at trades which come less into competition
with free labour and it is especially necessary to give prisoners
wages equal to those of free labourers, on condition that they pay
the State for their food, clothes, and lodging, whilst the
remainder goes to indemnify their victims.
Over the prison gates I should like to carve that maxim of
universal application: ``He who will not work, neither shall he
eat.''
V.
Since the novel proposals put forward half a century ago, amongst
others by doctors Georget and Brierre de Boismont, a whole library
of volumes has been published in favour of criminal lunatic
asylums. A few voices here and there were heard in opposition or
reserve, but these have almost entirely ceased.
Criminal lunatic asylums were adopted in England as early as 1786.
In 1815 Bethlehem Hospital was appropriated to criminal lunatics,
and the Broadmoor Asylum was founded in 1863. Similar asylums
exist at Dundrum in Ireland (1850), at Perth in Scotland (1858),
at New York (1874), and in Canada (1877).
On the continent of Europe there is not to this day a regular
asylum for mad criminals, though France,
after an
experiment in treating condemned madmen at Bictre, opened a
separate wing for them in the prison at Gaillon. Holland has
assigned to them the hospital of Bosmalen (Brabant); Germany has
special wards in the establishments at Waldheim, Bruchsaal, Halle,
and Hamburg; and Italy, after founding a special ward in 1876, at
the establishment for relapsed prisoners at Aversa, has converted
the Ambrogiana establishment at Montelupo in Tuscany, into an
asylum for insane convicts, and for prisoners under observation as
being of unsound mind. The new Italian penal code, though not
openly recognising the foundation of asylums for criminals
acquitted on the ground of insanity, has, in its general spirit of
eclecticism, given judges the power of handing them over to the
competent authority when it would be dangerous to release them
(Art. 46). At the Montelupo Asylum criminals acquitted on the
ground of insanity are also detained, at first under observation,
then by a definite order from the president of the Tribunal, who
can revoke his order on the petition of the family, or of the
authorities.
The inquiry into existing legislation on insane criminals,
undertaken by the ``Socit Gnrale des prisons de
Paris,'' showed that in France, Germany, Austria-Hungary, Croatia,
Belgium, Portugal, and Sweden, the authors of crimes or offences
who are acquitted on the ground of insanity are withdrawn from all
control by the judicial authority, and entrusted to the more or
less regular and effectual control of the administrative
authority. In England, Holland, Denmark, Spain, and
Russia, on the contrary, the judicial authority is empowered and
even compelled to order the seclusion of these individuals in an
ordinary or a criminal lunatic asylum.
Of the objections raised against this form of social defence
against insane criminals, I pass over that of the cost, which is
considerable; for even from the financial point of view I believe
that the actual system, which gives no guarantee of security
against madmen with criminal tendencies, is more costly to the
administration, if only by reason of the damage which they cause.
I also pass over the other objection, based on the violent scenes
which are said to be inseparable from the association of such
prisoners; for experience has shown that forebodings are ill
founded in regard to criminal asylums where the inmates are
classified according to their tendencies, under the direction of a
staff with special knowledge, who are able to prevent such
outbreaks. In ordinary asylums, on the other hand, a few insane
criminals are sufficient to render the maintenance of order very
difficult, and their inevitable and frequent outbreaks have dire
effects on the other patients.
The most serious and repeated difficulties in regard to lunatic
asylums spring from the very principles of the defensive function
of society.
It is said in the first place that the author of a dangerous
action is either a madman or else a criminal. If he is a madman,
he has nothing to do with penal justice--so Fabret, Mendel, and
others have said; his action is not a crime, for he had no
control over himself, and he ought to go to an ordinary
asylum, special measures being taken for him, as for every other
dangerous madman. Or else he is a criminal, and then he has
nothing to do with a lunatic asylum, and he ought to go to prison.
But there is a fallacy in this dilemma, for it leaves out the
intermediate cases and types, where particular individuals are at
the same time mad and criminal. And even if it were a question of
madmen only, the logical consequence would not be to bar out
special asylums, for it seems clear that if ordinary madmen (not
criminals, that is, not the authors of dangerous actions) ought to
go to an ordinary asylum, criminal madmen, or madmen with a
tendency to commit dangerous or criminal actions, as well as those
who have committed them, ought to go to a special asylum for this
category of madmen. For, on the other hand, we constantly see
that administrative authorities which observe the same rules for
the seclusion of ordinary and criminal madmen do not prevent the
release of the latter, some time after the crime, when the
disturbance of mind and even the recollection of the deed are all
but effaced; and criminal madmen commit other violent or
outrageous excesses, very soon after they are left exposed to
their diseased tendencies.[21]
[21] M. Lunier, writing in 1881 of epileptics, and the method of
treatment and aid appropriate to them, says that of 33,000 known
epileptics in France, 5,200 only are in private or public asylums,
whilst 28,000 remain with their families. From these figures it
would appear very probable that these 28,000 epileptics left at
liberty commit crimes and offences.
It may be answered that it is sufficient to have
special
wings in ordinary asylums, which would also get over the
repugnance of families against the association of their quiet and
harmless patients with murderous and outrageous madmen. But
experience has already proved that these special wards do not work
well, for it is too difficult with the same staff to apply such
varied treatment and discipline as are necessary for ordinary and
criminal lunatics.
Fabret says that ``a so-called criminal, when he is seen to be
mad, should cease to be regarded as a criminal, and ought purely
and simply to resume his ordinary rights.''
But, in the first place, if a madman is distinguished from all
other inoffensive madmen by the grave fact of having killed, or
burned, or outraged, it is clear that he cannot ``purely and
simply'' return to the same kind of treatment which is given to
harmless lunatics.
The truth is that this argument applies to a large number of ideas
which science is continually weeding out, and which have proceeded
on the assumption that madness is an involuntary misfortune which
must be treated, and that crime is a voluntary fault which must be
chastised. It is evident on the other hand that crime as well as
folly, being the result of abnormal conditions of the individual,
and of the physical and social environment, is always a question
for social defence, whether it is or is not accompanied in the
criminal by a more or less manifest and clinical form of mental
malady.
The same reply holds good for the second objection to asylums for
criminal madmen, when it is said that
a madman cannot, for
the sole reason that he has killed or stolen, be shut up
indefinitely, perhaps for ever, in an asylum.
Mancini, who was keeper of the seals, and at the same time a great
criminal pleader, aptly expressed the ideas of the classical
school when replying to an interpellation of Deputy Righi on the
foundation of criminal lunatic asylums:--``I could never
understand how the same court, which is obliged by law to acquit
upon a verdict of the jury that the accused is insane, and
therefore not responsible, could also decree the compulsory
seclusion in an asylum, for any period, of the same accused
person. . . . Is it because he has committed a crime? But that
is not true, for the man who did not know what he was doing, and
who for that reason has been declared innocent before the law, and
irresponsible, cannot have committed a crime. There is
consequently no legal reason why he should lose the exercise and
enjoyment of that liberty which is not denied to any other
unfortunate beings who are diseased like himself.''
It would be impossible to put more clearly the pure classical
theory on crime and punishment; but perhaps it would be equally
impossible to show less solicitude for social defence against
criminal attacks. For it is certain that the mad murderer ``has
committed no crime'' from the ethical and legal point of view of
the classical school; but it is still more certain that there is a
dead man, and a family left behind who may be ruined by the deed,
and it is very probable that this homicide, ``innocent before the
law,''
will renew his outrage on other victims--and at any
rate they are innocent.
And as for the indefinite period of seclusion in an asylum, it is
well to remember, from the point of view of individual rights,
that the formula with which a mad criminal is committed to an
asylum ``during her Majesty's pleasure'' had its origin in
England, in the classic land of the _habeas corpus_--the sheet
anchor of the ordinary citizen. Again, it is easy to see that the
indefinite seclusion of mad criminals is rendered necessary by the
same reasons which create the fundamental rule for criminals of
every kind. It may therefore come to a question of allowing or
disallowing the general principles of the positive school. But it
cannot be denied that they are unassailable, both in theory and in
practice. Crime is a phenomenon as natural as madness--the
existence of society compels the organised community to defend
itself against every anti-social action of the individual--the
only difficulty is to adapt the form and duration of this self-
defence to the form and intensity (the motives, conditions, and
consequences) of the action. Indefinite seclusion, therefore, in
a special establishment is inevitable on account of the special
condition of these individuals.
The practical considerations of social defence are so strong that
the great majority of classical criminal experts now accept
criminal lunatic asylums, in spite of their manifest contradiction
of the formal theories of moral responsibility, on the strength of
which these asylums were, and still are, opposed by the
intransigents of the classical school. This is why the new
Italian penal code, in spite of its progressive aim, had
not the courage in 1889 to adopt them frankly; and in the
definitive text, as in the ministerial draft, it took refuge in an
eclectic arrangement which has already met with a crowd of
obstacles, due to the vagueness of the principles inspiring the
code.
These criminal lunatic asylums ought to be of two kinds, differing
in their discipline, one for the insane authors of serious and
dangerous crimes, such as homicide, incendiarism, rape, and the
like; and the other for slighter crimes, such as petty theft,
violent language, outrages on public decency, and the like. For
the latter, seclusion should be shorter than for the others. Thus
in England convicts are sent to the State Asylum at Broadmoor,
whilst minor offenders are sent to a county asylum.
Persons thus confined should be (1) prisoners acquitted on the
ground of insanity, or sentenced for a fixed period, at the
preliminary inquiry; (2) convicts who become insane during the
expiation of their sentence; (3) insane persons who commit crimes
in the ordinary asylums; (4) persons under observation for weak
intellect in special wards, who have been put on their trial, and
given grounds for suspecting madness.
At Broadmoor, on December 31, 1867, there were 389 male patients
and 126 female; and in 1883 there were 381 males and 132 females,
thus classified:--
Mad Criminals. Male. Female.
Murder ... ... ... ... ... 155 ... 85
Attempted murder ... ... ... 111 ... 18
Parricide ... ... ... ... ... 7 ... 6
Theft ... ... ... ... ... 23 ... 3
Mad Criminals. Male. Female.
Incendiarism ... ... ... ... 24 ... 1
Military offences ... ... ... 21 ... --
Attempted suicide ... ... ... 3 ...
In Germany, in the prison at Waldheim, the proportion of mad
criminals to the corresponding classes of ordinary criminals was
as follows:--
Percentage
Crimes. In Prison. Insane.
Homicide, actual or attempted ... 74 ... 17.6
Murder and malicious wounding ... 51 ... 9.8
Highway robbery with violence ... 64 ... 12.5
Incendiarism ... ... ... ... ... 219 ... 6.8
Rape ... ... ... ... ... ... 52 ... 5.8
Indecent assault... ... ... ... 299 ... 5.7
Perjury ... ... ... ... ... ... 220 ... 2.7
Military crimes ... ... ... ... 23 ... 21.7
Crimes against property ... ... ... 5,116 ... 1.9
Other offences ... ... ... ... 158 ... 0.6
---- ----
Total ... ... 6,276 ... 2.7
That is to say, there was (1) a very large proportion of madmen
amongst the military offenders, which may point to the effect of
military life, or else a careless selection for conscription, or
both causes taken together; and (2) a greater proportion of mad
criminals amongst the more serious offenders, partly because the
authors of crimes of violence are subjected to more strict and
frequent observation for madness.
It seems to me that this fact, which is also confirmed by the
figures for England, is the most cogent argument in favour of
criminal lunatic asylums.
For born criminals, since, as Dr. Maudsley says, we are face to
face, if not exactly with a degenerate species, at least with a
degenerate variety of the
human species, and the problem is
to diminish their number as much as possible, a preliminary
question at once arises, namely, whether the penalty of death is
not the most suitable and efficacious form of social defence
against the anti-social class, when they commit crimes of great
gravity.
It is a question which for a century past has divided the criminal
experts and wearied the general public, with perhaps more
sentimental declamations than positive contributions; a question
revived by the positive school, which, however, only brought it
forward, without discussing it, at the first Congress on Criminal
Anthropology at Rome; whilst it has been recently settled by the
new Italian penal code, which is the first code amongst the
leading States to decree (January 1, 1890) the legal abolition of
the death penalty, after its virtual abolition in Italy since the
year 1876, except for military crimes.
Amongst the classical experts, as amongst the positivists, there
are those who would abolish and those who would retain the death
penalty; but the disagreement on this subject is not equally
serious in the two camps. For whilst the classical abolitionists
almost all assert that the death penalty is inequitable, the
positivists are unanimous in declaring it legitimate, and only a
few contest its practical efficacy.
It seems to me that the death penalty is prescribed by nature, and
operates at every moment in the life of the universe. Nor is it
opposed to justice, for when the death of another man is
absolutely necessary it is legitimate, as in the cases of lawful
self-
defence, whether of the individual or of society,
which is admitted by classical abolitionists such as Beccaria and
Carrara.
The universal law of evolution shows us also that vital progress
of every kind is due to continual selection, by the death of the
least fit in the struggle for life. Now this selection, in
humanity as with the lower animals, may be natural or artificial.
It would therefore be in agreement with natural laws that human
society should make an artificial selection, by the elimination of
anti-social and incongruous individuals.
We ought not, however, to carry these conclusions too far, for
every problem has its relative bearings, and positive observation,
unlike logic, does not admit simple and exact solutions. It must
be observed that this idea of artificial selection, though true,
would lead to exaggerated conclusions, if it were carried into the
sociological field without reserve, and without the necessary
balance between the interests and rights of the community and of
individuals. If this idea were taken absolutely, indeed, it would
render legitimate and even obligatory an ultra-Spartan elimination
of all children born abortive or incurably diseased, or anti-
social through their idiotcy or mental insanity.
On the other hand, to recognise that the death penalty may be
legitimate as an extreme and exceptional measure is not to
acknowledge that it is necessary in the normal conditions of
social life. Now it cannot be questioned that in these normal
conditions society may defend itself otherwise than by death, as
by perpetual seclusion or transportation, the failure of
which, by the escape of convicts, is too rare to be decisive
against it.
The preventive and deterrent efficacy of the death penalty is very
problematical when we examine it not by our own impressions as
average human beings, calmly and theoretically, but with the data
of criminal psychology, which is its only true sphere of
observation. Every one who commits a crime is either carried away
by sudden passion, when he thinks of nothing, or else he acts
coolly and with premeditation, and then he is determined in his
action, not by a dubious comparison between the death penalty and
imprisonment for life, but simply by a hope of impunity. This is
especially the case with born criminals, whose main psychological
characteristic is an excess of improvidence, combined with moral
insensibility.
If a convict tells us that he fears death, this merely means that
he has the momentary impression, which cannot, however, restrain
him from crime, for here again, by the same psychological
tendency, he will be subject only to the criminal temptation.
And if it is true that, when the criminal has been tried and
condemned, he fears death more than imprisonment for life (always
excepting condemned suicides, and those who by their physical and
moral insensibility laugh at death up to the foot of the
scaffold), it is none the less necessary to try and to condemn
them.
Indeed statistics prove that the periodic variations of the more
serious crimes is independent of the
number of
condemnations and executions, for they are determined by very
different causes. Tuscany, where there has been no death penalty
for a century, is one of the provinces with the lowest number of
serious crimes; and in France, in spite of the increase of general
crime and of population, charges of murder, poisoning, parricide,
and homicide, dropped from 560 in 1826 to 430 in 1888, though the
number of executions diminished in the same period from 197 to 9.
The death penalty is an easy panacea, but it is far from being
capable of solving a problem so complex as that of serious crime.
The idea of killing off the incorrigibles and the born criminals
is easily conceived, and Diderot, in his Letter to Landois,
maintained that it was a natural consequence of the denial of
free-will, saying: ``What is the grand distinction between man
and man? Doing good and doing harm. The man who does harm ought
to be extinguished, not punished.'' But as against this too
facile notion we must look to experience, and to the other
material and moral conditions of social life, for the necessary
balance and completion.
I will not further discuss the death penalty, for it is by this
time an exhausted question from the intellectual standpoint, and
has passed into the domain of prejudice for or against, and this
prejudice is concerned rather with the more or less repugnant
method of execution than with the penalty itself. In its favour
there is the absolute, irrevocable, and instantaneous elimination
from society of an individual who has shown himself absolutely
unadaptable, and dangerous to society. But I hold that, if we
would
draw from the death penalty the only positive utility
which it possesses, namely, artificial selection, then we must
have courage enough to apply it resolutely in all cases where it
is necessary from this point of view, that is to say, to all born
criminals, who are the authors of the most serious crimes of
violence. In Italy, for example, it would be necessary to execute
at least one thousand persons every year, and in France nearly two
hundred and fifty, in place of the annual seven or eight.
Otherwise the death penalty must be considered as an unserviceable
and neglected means of terror, merely to be printed in the codes;
and in that case it would be acting more seriously to abolish it.
So regarded it is too much like those motionless scarecrows which
husbandmen set up in their fields, dotted about with the foolish
notion that the birds will be frightened away from the corn. They
may cause a little alarm at first sight; but by and by the birds,
seeing that the scarecrow never moves and cannot hurt them, lose
their fear, and even perch on the top of it. So it is with
criminals when they see that the death penalty is never or very
rarely applied; and one cannot doubt that criminals judge of the
law, not by its formulation in the codes, but by its practical and
daily application.
Since the deterrent efficacy of punishments in general, including
the death penalty, is quite insignificant for the born criminals,
who are insensible and improvident, the rare cases of execution
will certainly not cure the disease of society. Only the
slaughter of several hundred murderers every year would have
a sensible result in the way of artificial selection; but
that is more easily said than done. And I imagine that, at normal
periods, in no modern and civilised State would a series of daily
executions of the capital sentence be possible. Public opinion
would not endure it, and a reaction would soon set in.[22]
[22] In every case I think that executions should take place in
prison, and by means of a poison administered as soon as the
sentence takes effect. In North America electricity has been
tried, but executions by this process appear to be as horrible and
repulsive as those by the guillotine, the garotte, the scaffold,
or the rifle. (See the _Medico-Legal Journal_ of New York, March
and September, 1889.) From the ``Summarised Information on Capital
Punishment,'' published by the Howard Association in 1881, I take
the following figures on capital punishment in Europe and
America:--
Death
State. Sentences. Executions.
Austria (1870-9) ... ... ... ... ... 806 ... 16
France (1870-9) ... ... ... ... ... 198 ... 93
Spain (1868-77) ... ... ... ... ... 291 ... 26
Sweden (1869-78) ... ... ... ... ... 32 ... 3
Denmark (1868-77) ... ... ... ... ... 94 ... 1
Bavaria (1870-9) ... ... ... ... ... 240 ... 7
Italy (1867-76) ... ... ... ... ... 392 ... 34
Germany, North (1869-78) ... ... ... 484 ... 1
England (1860 79) ... ... ... ... ... 665 ... 372
Ireland (1860-79) ... ... ... ... ... 66 ... 36
Scotland (1860-79) ... ... ... ... ... 40 ... 15
Australia and New Zealand (1870-9) ... 453 ... 123
United States, about 2,500 murders annually--about 100
executions and 100 lynchings annually.
In Finland, between 1824 and 1880 there was no execution. In
Holland, Portugal, Roumania, and Italy, capital punishment is
abolished by law; and in Belgium virtually. Switzerland also has
abolished it, but a few cantons, under the influence of a few
atrocious and recurrent crimes, revived it in their codes, but did
not carry it out. In the United States it has been abolished in
Michigan, Wisconsin, Rhode Island, and Maine. An inquiry into the
legislation and statistics relating to murder in Europe and
America was instituted by Lord Granville in July, 1880 and the
results were published in 1881. (``Reports on the Laws of Foreign
Countries respecting Homicidal Crime.'')
In a manuscript register of executions in the Duchy of Ferrara
between 970 and 1870, I found that, excluding the nineteenth
century, there were 5,627
executions in 800 years (3,981
for theft, and 1,009 for homicide), that is an average of 700 in
each century, in the city of Ferrara alone. And at Rome,
according to the records of the Convent of St. John the Beheaded,
between 1500 and 1770 there were 5,280 executions, or 1,955 in
each century, in the city of Rome alone. Now, if we consider the
proportion of population in Ferrara and Rome to that of Italy as a
whole, we reach an enormous number of executions in former
centuries, which can scarcely have been fewer than four hundred
every year.
These were serious applications of the death penalty, to which we
certainly owe in some degree the purification of society by the
elimination of individuals who would otherwise have swelled their
criminal posterity.
In conclusion, if we wish to treat the death penalty seriously,
and derive from it the only service of which it is capable, we
must apply it on this enormous scale; or else, if it is retained
as an ineffectual terror, we should be acting more seriously if we
were to expunge it from the penal code, after excluding it from
our ordinary practice. And as I shall certainly not have the
courage to ask for the restoration of these medival modes of
extermination, I am still, for the practical considerations above
mentioned, a convinced abolitionist, especially for such countries
as Italy, where a more or less artificial and superficial current
of public opinion is keenly opposed to capital punishment.
Setting aside the death penalty, as unnecessary in normal
times, and inapplicable in the only proportions which would make
it efficacious, for the born criminals who commit the most serious
crimes, there remains only a choice between these two modes of
elimination--transportation for life and indefinite seclusion.
This is the only choice for the positivists; for we cannot attach
much importance to the opinion of the German jurists,
Holtzendorff, Geyer, and others, who would do away with perpetual
imprisonment altogether. Professor Lucchini took up this theory
in Italy, saying that the personal freedom of the convict ought to
be limited in its exercise, but not suppressed as a right, and
that imprisonment for life destroys ``the moral and legal
personality of the criminal in one of its most important human
factors, the sociable instinct.'' He added that punishment
``ought not to become exhausted by excess of duration.''
Surely it is not speaking seriously to say that the right of the
individual cannot be suppressed if necessity demands it, when we
see it done every day in cases of legitimate self-defence; and
that punishment is exhausted by excess of duration, when it is
precisely the duration of banishment from one's kind which
constitutes the only real efficacy of punishment; and to speak of
the sociable instinct in connection with the most anti-social
criminals.
And it is only by oblivion of the elementary and least contestable
data of criminal bio-psychology that the exclusion of all life-
punishments can be maintained, on the ground that this perpetuity
``is contrary to the reformative principle of punishment, to the
principle that punishment ought to aim not only at
afflicting the prisoner, but also at arousing in him, if
possible, the moral sense, or at strengthening him, and opening up
to him a path by which he can hope to be readmitted into society,
amended and rehabilitated. Perpetuity of punishment excludes this
possibility.''
The framers of the Dutch penal code replied to these observations
of Professor Pols, first in the name of common sense, that
``punishment is not inflicted for the benefit of the prisoner, but
for that of society,'' and secondly, with something of irony, that
``even for the sake of the abolition of capital punishment, and to
prevent a reaction in favour of this punishment, we must uphold
the right of shutting up for ever the few malefactors whose
release would be dangerous.''
It is entirely futile to consider the amendment of criminals as
opposed to imprisonment for life, when it is known that born
criminals, authors of the most serious crimes, for whom such
punishment is reserved, are precisely those whose amendment is
impossible, and that the moral sense attributed to them is only a
psychological fallacy of the classical psychologist, who
attributes to the conscience of the criminal that which he feels
in his own honest and normal conscience.
But it is easy enough to see that this opposition to perpetual
detention, though it has remained without effect, as being too
doctrinaire and sentimental, is only a symptom of the historical
tendency of the classical schools, entirely in favour of the
criminal, and always tending to the relaxation of punishments.
The interests of society are too much disregarded
when it
is sought to pass from the abolition of capital punishment to that
of imprisonment for life. If the tendency is not checked, we may
expect to see some classical expert demanding the abolition of all
punishment for these unfortunate criminals, with their delicate
moral sensibilities!
The question, therefore, is between transportation or indefinite
seclusion.
Much has been written for and against transportation, and there
was a lively discussion of the problem in Italy, some twenty years
ago, between M. Beltrani Scalia, a former director-general of
prisons, and the advocates of this form of elimination of
criminals. Without going into the details of the controversy, it
is evident that the experience of countries like England, which
for a long time transported its criminals at a cost of hundreds of
millions, and then abandoned the practice, is in itself a
noteworthy example.
Yet it is only an objection, so far as it goes, against
transportation as formerly practised, that is to say, with
enormous prisons built in distant lands. M. Beltrani Scalia
justly said that we might as well build them at home, for they
will cost less and be more serviceable. The example of France in
its practical application of this policy is not encouraging.
However, there is in transportation, as in the death penalty, an
unquestionable element of reason. For when it is perpetual, with
very faint chances of return, it is the best mode of ridding
society of its most injurious factors, without our being compelled
to keep them in those compulsory human hives which are known as
cellular prisons.
But again, there is the question of simple transportation, first
put into practice by England, which consists of planting convicts
on an island or desert continent, with the opportunity of living
by labour, or else of letting them loose in a savage country,
where the convicts, who in civilised countries are themselves half
savage, would represent a partial civilisation, and, from being
highwaymen and murderers, might become military leaders in
countries where, at any rate, the revival of their criminal
tendencies would meet with an immediate and energetic resistance,
in place of the slow machinery of our criminal trials.
For Italy, however, the question presents itself in a special
form; for there a sort of internal deportation, in the lands which
are not tilled on account of the malaria, would be far more
serviceable. If the dispersion of this malaria demands a human
hecatomb, it would evidently be better to sacrifice criminals than
honest husbandmen. Transportation across the sea was very
difficult for Italy a few years ago, especially in view of the
lack of colonies; for then there was always the obstacle of which
Franklin spoke in reference to transported English convicts, in
his well-known retort: ``What would you say if we were to
transport our rattlesnakes to England?'' But since Italy has had
her colony of Erythrea the idea of transportation has been taken
up again. In May, 1890, I brought forward a resolution in
Parliament in favour of an experimental penal colony in our
African dependencies. The proposal found many supporters, in
spite of the opposition of the keeper of the seals, who forgot
that he had written in his report
on the draft penal code
that prisoners might also be detained in the colonies. Soon
afterwards the proposal was renewed by Deputy De Zerbi, and
accepted by M. Beltrani Scalia, director-general of prisons.
In a similar manner M. Prins declares himself in favour of
transportation for Belgium, since the constitution of the Congo
State.
But it is my matured opinion that transportation ought not to be
an end in itself. The penal colony for adults ought to be a
pioneer of the free agricultural colony. The problem of a penal
colony in our African possessions cannot, therefore, be solved in
advance of two other questions.
Before all, we must see whether these possessions offer suitable
districts for agricultural colonisation. And secondly, we must
consider whether convicts would not cost less to transport into
districts nearer home which need to be cleared, a plan which would
also prevent their going over to the enemy, becoming leaders or
guides of the barbarous tribes which are at war with us.
In any case, whether we decide on transportation to the interior
or beyond the seas, for born and habitual criminals, there is
still the question as to the form of seclusion.
In this connection the idea has been suggested of ``establishments
for incorrigibles,'' or hardened criminals, wherein should be
confined for life, or (the same thing in this case) for an
indefinite period, born criminals who have committed serious
crimes, habitual criminals, and confirmed recidivists.
The congenital character and hereditary transmission of criminal
tendencies in these individuals fully justify the words of
Quetelet, that ``moral diseases are like physical diseases: they
are contagious, or epidemic, or hereditary. Vice is transmitted
in some families in the same way as scrofula or consumption. The
greater number of crimes come from a comparatively few families,
which need a special supervision, an isolation like that which we
impose on sick persons suspected of carrying the germs of
infection.'' So Aristotle speaks of a man who, being accused of
beating his father, answered: ``My father beat my grandfather,
who used to beat his father cruelly; and you see my son--before he
is grown up he will fly into passions and beat me.'' And Plutarch
added to this: ``The sons of vicious and corrupt men reproduce
the very nature of their parents.''
This is the explanation of Plato's idea, who, ``admitting the
principle that children ought not to suffer for the crimes of
their parents, yet, putting the case of a father, a grandfather,
and a great-grandfather who had been condemned to death, proposed
that their descendants should be banished, as belonging to an
incorrigible family.'' Carrara called this a mistaken idea, but
it seems to us to be substantially just. It may be remembered
that when De Metz in 1839 founded his agricultural penal colony at
Metray, once celebrated but now in decay (for the whole success of
these foundations depends on the exceptional psychological
qualities of their governors), out of 4,454 children, 871, or 20
per cent., were the children of convicts. We quite agree with
Crofton's proposal to
place the children of convicts in
industrial schools or houses of correction.
A special establishment for the perpetual or indefinite seclusion
of incorrigible criminals has been proposed or approved in Italy
by Lombroso, Curcio, Barini, Doria, Tamassia, Garofalo, Carelli;
in France by Despine, Labatiste, Tissot, Leveill; in Russia by
Minzloff; in England by May; in Germany by Kraepelin and
Lilienthal; in Austria by Wahlberg; in Switzerland by Guillaume;
in America by Wines and Wayland; in Holland by Van Hamel; in
Portugal by Lucas; &c.
But I believe that, in order to establish the fact of
incorrigibility, the number of relapses should vary in regard to
different criminals and crimes. Thus, for instance, in the case
of murders, especially by born criminals, the first crime should
lead to an order for imprisonment for life. In the case of less
serious crimes, such as rape, theft, wounding, swindling, &c.,
from two to four relapses should be necessary before the habitual
criminal is sentenced to such imprisonment.
These ideas are approximately carried out, especially in the
countries which, having made no great advance in the criminal
sciences, meet with less of pedantic opposition to practical
reforms.
Thus we find that France, after the proposals of Michaux, Petit,
and Migneret, and especially after the advocacy of M. Reinach,
followed by several publications of a like kind, agreed to the law
of 1885 on the treatment of recidivism.
Messrs. Murray Brown and Baker spoke at the Prison Congress
at Stockholm and at the Socit Gnrale des Prisons
at Paris, of the system of cumulative and progressive sentences
adopted, though not universally, in England with respect to
hardened criminals. The term of imprisonment is increased, almost
regularly, on each new relapse. This is the system which had
already been suggested by Field and Walton Pearson at the Social
Science Congress in October, 1871, and subsequently by Cox and
Call, who was head of the police at Glasgow, at the Congress of
1874, and which, as Mr. Movatt pointed out, was adopted in the
Indian penal code, and had been established in Japan by a decree
fixing perpetual imprisonment after the fourth relapse.
The delegate from Canada at the Prison Congress at Stockholm
testified that short terms of imprisonment increased the number of
offences. ``After a first sentence many offenders in this class
become professional criminals. Professional thieves, who are
habitual offenders, ought, with few exceptions, to be sentenced to
imprisonment for life, or for a term equivalent to the probable
remainder of their life.'' The draft Russian code, in 1883,
provides that, ``If it is found that the accused is guilty of
several offences, and that he has committed them through habitual
criminality, or as a profession, the court, when deciding upon the
punishment in relation to the different crimes, may increase it,''
&c. And the Italian penal code, though with much timidity, has
decreed a special increase of punishment for prisoners ``who have
relapsed several times.''
Quite recently, Senator Brenger introduced a measure in France
``on the progressive increase of punishment in cases of relapse,''
which became law on March 26, 1891, under the title of ``the
modification and increase of punishments.''
It is therefore very probable that even the classical criminalists
will end by accepting the indefinite seclusion of hardened
criminals, as they have already come to accept criminal lunatic
asylums, though both ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St. Petersburg in
1889 the question was first propounded ``whether it can be
admitted that certain criminals should be regarded as
incorrigible, and, if so, what means could be employed to protect
society against this class of convicts.'' And speaking as a
delegate from the Law Society of St. Petersburg, M. Spasovitch
acknowledged that ``this question bore the stamp of its origin on
its face. Of all the questions in the programme, it seemed to be
the only one directly inspired by the principles of the new
positive school of criminal anthropology, whose theories,
propagated beyond the land of their birth in Italy, tended to a
radical reform in science as well as in legislation, in the penal
law as well as in procedure, in ideas of crime as well as in the
modes of repression.''
The Congress, in spite of some expressions of reserve, as when
Madame Arenal platonically observed that ``an uncorrected criminal
is not synonymous with an incorrigible criminal,'' adopted the
following resolution:--``Without admitting that from the
penal and penitentiary point of view there are any absolutely
incorrigible criminals''--which is pure pedantry--``yet since
experience shows that there are in fact individuals who resist the
combined action of punishment and imprisonment''--a notable
admission!--``and who habitually and almost professionally renew
their violation of the laws of society, this section of the
Congress is unanimously of opinion that it is necessary to adopt
special measures against such individuals.''
Similarly the International Union of Penal Law, in its session at
Berne (August, 1890), expressed the opinions of the majority in
the following terms:--``There are malefactors for whom, in view of
their physical and moral condition, the constant application of
ordinary punishments is inadequate. In this class are specially
included the hardened recidivists, who ought to be considered as
degenerate criminals, or criminals by profession. Malefactors
ought to be subjected, according to the degree of their
degeneration, or of the danger which they threaten, to special
measures, framed with the purpose of preventing them from
inflicting harm, and of amending them if possible.'' And in the
session at Christiania (August, 1891), after the remarkable
contribution of Van Hamel, the Union, after rejecting the
proposition of Felisch, which spoke of ``the uncorrected'' in
place of the ``incorrigible,'' unanimously approved the
conclusions of Van Hamel:--``With a view to the more complete
study of the character and injurious influence of habitual
offenders, notably of such as are incorrigible (a study which is
absolutely indis
pensable for legislation), the Union
instructs its officers to urge upon the various Governments the
great importance of statistics of recidivism which shall be
detailed, precise, uniform, and adapted for comparative study.
For incorrigible habitual offenders it is absolutely necessary
that the trial on the last charge shall not definitely determine
the treatment of the offender, but that the decision shall be
carried on to a further inquiry, which shall have regard to the
offender personally, to his past, and to his conduct during a
fixed period of observation.
It is now necessary to inquire what form the perpetual or
indefinite segregation of the criminal should assume.
Two great innovations in regard to prisons, as M. Tarde observes,
have been made or developed within the past century, which are not
yet adopted in every country: penal colonies, whereof
transportation is only a factor, and the prison cell. The cell
has assumed a leading position since it was brought over from
America to Europe, where, however, the cellular prisons of St.
Michael at Rome, and of Gand, had preceded it.
The cellular system, a product of the reaction against the
enormous physical and moral putrefaction of the inmates of common
prisons and labour establishments, may have had, and doubtless
still has many advocates, amongst other reasons for the spirit of
pietism and religious penitence which always goes with it; but it
is open to strong criticism.
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 medival 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 assist 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 Constituent Assembly 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 constitutes 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 passage 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 classic 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 classifying 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
substituted 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 classical 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
sex 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 sex, 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.[23]
[23] 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 classes, both
by its enormous cost, under the form of taxation, and by
competition with free and honest labour. The competition is moral
in the first place, for the criminal is always assured of daily
work, lodgings, and food, whilst the honest workman is assured of
neither. Even the economic competition, 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 competition 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, passing 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 substituted 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
assault, 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 substitute 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 substitutes, 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 classes 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
constitute the almost
exclusive mode of repression. A few
days in prison, mostly in association 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 association 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 substitution 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 substitutes or short terms
of imprisonment can be applied as effectively or as generally as
is necessary for the large class 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 passion, 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
principal 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, assumes two very different
forms.
At Boston, in the State of Massachusetts, 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 Association, an Act was passed 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 pronounced. 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 pronounced; 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 Brenger; 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 substituting 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.
But the most noteworthy advocacy of conditional sentences, after
the action taken by the Howard Association in 1881, came from the
International Union of Penal Legislation, which at its Conference
at Berne in 1889 adopted a resolution in its favour, whilst
insisting, at the suggestion of M. Garofalo, ``on the necessity of
deciding its limitation according to local conditions, and to the
public opinion and moral characteristics of various nations.''
The Prison Congress of St. Petersburg discussed the substitution
of judicial admonition or conditional sentences for short terms of
imprisonment; but no resolution could be arrived at on this
occasion, and the matter was postponed to the next international
Prison Congress (Paris, 1895).
In Austria and Germany, again, several Bills have been introduced,
dealing with conditional sentences.
There are statistics for Belgium on the operation of this system.
The law of 1888 requires the keeper of the seals to report
annually to Parliament; and that authority drew up two reports,
dated May 14, 1890, and July 7, 1891.
From the day when the law came into operation up to December 31,
1889, out of 61,787 sentences in
the Correctional
Tribunals, 8,696 were conditional; and there were 192 relapses.
Out of 222,492 sentences in the Police Courts, 4,499 were
conditional, and there were 45 relapses.
These 13,195 conditional sentences included 8,485 for crimes and
offences under the penal code; 2,286 for breaches of police
regulations; 447 for breaches of communal and provincial
regulations; and 1,977 for contraventions of special laws.
The crimes and offences for which these sentences have been most
frequently pronounced are as follows:--
Correctional. Police.
Malicious Wounding ... ... ... ... ... 3,339 ... 491
Thefts, &c ... ... ... ... ... ... 1,803 ... 206
Resistance to and attacks on Authorities 961 ... 67
Destruction of Inclosures and Property 211 ... 56
Swindling and Breach of Trust ... ... 125 ... 5
Slander and Defamation ... ... ... ... 113 ... 79
Immorality ... ... ... ... ... ... 112 ... 10
Offences below 100 were: Abusive language, 99; Indecent assaults,
59; Threats, 58; Forgery, 49; Adultery, 48; Adulteration of food,
44; Unlawful wounding, 45; Unlawful possession, 31; Unlawful
carrying and sale of arms, 30; Bankruptcy, 26; Accidental
homicide, 20.
In the year 1890, out of 41,330 sentences in the Correctional
Tribunals, whereof 36,660 were not over six months' imprisonment,
7,932 were conditional, and there were 223 relapses. Out of
121,461 in the Police Courts, 6,377 were conditional, and there
were 49 relapses.
The proportion for various offences was approximately the same as
in the previous year.
These figures, it is true, do not tell us much about
the
effects of conditional sentences in Belgium, as we might expect
from the brevity of the experiment; so that the question still
remains in the theoretical phase.
The statistics of the Massachusetts probation system are not much
more instructive.
According to the decennial report (1879-88) of Mr. Savage,
probation officer at Boston, imprisonment was remitted in the
county of Suffolk (including Boston) to 322 persons in 1879 and to
880 in 1888; whilst the number officially recorded for the
following year was 994. In the course of ten years the probation
officer inquired into the cases of 27,052 persons liable to
supervision. Of these, 7,251 were put on probation, and 580 were
deprived of the benefit of the law.
The grounds on which the probation system was applied in
Massachusetts were strikingly different from the circumstances
under which conditional sentences were recorded in Belgium. Thus
in Boston there were put on probation, between 1879 and 1888,
3,161 persons charged with drunkenness for the first time, 222
charged with habitual drunkenness, 211 with drunkenness for the
third time, 958 with theft, 764 with solicitation, 470 with
inflicting bodily harm, 274 with disorderly conduct and idleness,
240 with violation of domicile, especially with intrusion in
business premises.
Thus, apart from the difference of penal legislation and social
life in the two countries, the Boston system is applied mainly to
drunkards, who are not true criminals by the mere fact of
intoxication.
As for the statistics of ascertained relapse, which in Boston
reached 64 out of 1,125 (6 per cent.) in 1889, I think they should
be received with caution. In the case of every new penal or
penitentiary system or measure, we never fail to receive more or
less wonderful figures on the results obtained; but the common
fate of all these splendid results has always been that they
dwindle down, even if they do not turn into a negative quantity,
so as to indicate the necessity of other more practical and
serviceable measures. The reason is, and will continue to be the
same, namely, that legislators, judges, and prison warders have no
adequate knowledge of criminals, and their activity is anything
but harmonious. This accounts for the superficial character, if
nothing more, of the measures which are taken, and which apply far
more to the crime than to the criminal, without so much as
touching the true and deep-seated roots of crime. Hence also the
inevitable disillusion, almost before the new device is a month
old.
I by no means admit the two principal objections of MM.
Kirchenheim and Wach, that the conditional sentence is repugnant
to the principle of absolute justice, according to which every
offence should be visited by a corresponding punishment, and that
short terms of imprisonment, if they have not always produced a
good result, ought not to be abolished, but only applied in a more
suitable and efficacious manner.
The first objection will not weigh much with those who are guided
by the principles and method of the positive school. As M.
Gautier says, it is absolutely
useless to dispute about
consequences when we start from premisses so opposed to each other
as retributive justice, according to which every fault demands a
proportional punishment--``fiat justitia pereat mundus''--and
social defence, according to which a justice without social
advantage is an unjust justice, afflicted with metaphysical
degeneracy.
The second objection appears to me to have no better foundation,
for the disadvantages of punishments by short terms of
imprisonment are organic and inevitable defects. There is no
chance of their practical amelioration, for they have all been
tried, from the system of association to that of absolute
isolation, from the most inflexible vigour to the mildest
treatment. Amelioration of short-term punishments can only have
an indirect influence by way of palliation; but it is the actual
imprisonment for a short term which is trifling and unavailing.
At the same time, and not to mention other objections on points of
detail, specially applicable to the form given to conditional
sentences on the continent of Europe, as compared with the
American system, (which is certainly better, since it does not
leave the offender to himself, and is not restricted to the simple
legal relapse), I am not enthusiastically in favour of the
conditional sentence. And my lack of enthusiasm, in spite of the
first impression, which was decidedly favourable, is based on
different grounds from those hitherto stated by the opponents of
this reform.
In the earliest edition of this work I maintained that repression
ought to be mild in form for occa
sional criminals, and
progressively severe for recidivists and habitual evildoers, until
it reached perpetual segregation. The Italian proverb, that ``the
first fault is pardoned and the second whipped,'' is an
unconscious confirmation of the popular opinion. And from this
point of view the conditional sentence, if combined as in the
French law with progressive severity of repression for
recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it
has hitherto been propounded and carried out, has two
characteristic defects, in common with the actual penal system, of
which its advocates, for the most part balancing between the
classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its
attention on crime, and the positive school studies the criminal,
especially in regard to his biological and psychological
character, the advocates of the conditional sentence (and of the
laws which have so far brought it into operation) oscillate
between the two standpoints, considering the criminal, no doubt,
rather than the crime, but only the average and abstract criminal,
not the living and palpitating criminal, as he is to be found in
his several categories. In proof of this it is enough to observe
that the ninth article of the Belgian law admits the conditional
sentence, so far as punishment is concerned, when this punishment
does not exceed six months, _*even if the period is made up by the
cumulation of two or more!_ In other words, the conditional
sentence is allowed in the case of a criminal who has
com
mitted several offences--which substantially (except in
the few cases of connected offences due to the same action, or
arising out of the same occasion) is a mere case of relapse, and
therefore proves in the majority of cases that the law is not
dealing with true occasional criminals; for these, as a rule, like
criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in
Europe (a slight infraction and a nonrelapsed criminal) do not,
therefore, afford a complete guarantee of the utility of its
application.
It is true that this system tends to fix the attention of the
judge on the personal conditions of the prisoner, requiring him to
decide if the conditional sentence is suitable to the particular
occasion, having regard to the special circumstances of the action
and the individual, apart from the legal limitations of the
offence and of the punishment.
But we know that the crowding of the prisons with persons
condemned to short terms of imprisonment is attended by a grievous
crowding in the courts of prisoners accused of slight offences and
contraventions. Thus it is inevitable that the judges, even apart
from their ignorance of the biological and psychological
characters of the offenders, being compelled to decide ten or
twenty cases every day, cannot fix their attention on the
procession of figures which files past the magic lantern of the
courts, but simply leave them with a ticket bearing the number of
the article which applies, not to _*them,_ but to their particular
infraction of the law. Thus the judges will come to
pronouncing the conditional sentence almost mechanically,
just as they have come to give the benefit of attenuating
circumstances by force of habit This device also was introduced in
France in 1832, in order to ``individualise punishment''--that is
to say, to compel the judge to apply his sentence rather to the
criminal than to the crime.
So long as penal procedure is not radically reformed, as we have
proposed, in such a manner that the inquiry, the discussion, the
decision upon the evidence, which are the only proper elements of
penal justice, aim at and lead up to the determination of a
prisoner's biological and psychological type, it will be humanly
impossible for the practical application of these judicial
measures to overcome the mechanical impersonality of justice,
which applies rather to the crime than to the criminal.
Hence the conditional sentence, though it was evolved by the abuse
and disastrous effects of short terms of imprisonment, and in
spite of its generating principle that ``the first fault is
pardoned and the second whipped,'' has to-day only the character
of an eclectic graft on the old classic stock of penal law and
procedure. As such, notwithstanding its attractive features (for
it indicates a step in advance towards the positive system of
social defence, which desires to see the application of collective
defence to the individual's power of offence), it seems to me to
be destined, not long after its earliest application, to deceive
the anticipations of happy and beneficent results, such as its
advocates entertain.
Moreover, the conditional sentence, precisely be
cause it is
a graft on the old classic stock of penal justice, has another
very serious defect, inasmuch as it overlooks the victims of the
offence.
Its advocates, in fact, continue to maintain that reparation of
damage is a private concern, for which they benevolently recommend
a strict remedy, but which they nevertheless, in practice,
entirely overlook.
The offender who is conditionally sentenced is, therefore, to
secure a suspension of punishment--which, indeed, it is as well to
remember, he also secures, often enough, by a legal limitation,
or, as in Italy, by the remission of punishments under three
months, accorded whenever (as is generally the case) there is a
petition for pardon. But is there any one who gives a thought to
the victims?
From this point of view it may even be said that the conditional
sentence makes things worse than before; for the victims are not
to have so much as the satisfaction of seeing punishment inflicted
on those who have injured them, in cases of assault, theft,
swindling, and the like. And it is useless to make the platonic
remark, as M. Fayer has done, that punishment is punishment even
when conditional, and involves the censure of the public
authority, and holds in reserve a punishment for relapse, and
hangs over the head of the offender until his term of probation
has expired.
All this is pretty enough--except the relapse, which implies the
poor consolation of a repetition of the offence, which would be no
great satisfaction for the victims of the first. But it is all
hypothetical and
theoretical. The essential thing, so far
as the victims are concerned, is that the offender goes
unpunished.
It is true that occasional offenders deserve consideration, from
the point of view of prevention in particular; but honest folk who
are injured by them deserve it still more.
I do not therefore agree with Garofalo, who proposed at Brussels
that the conditional sentence should be subject to the consent of
the injured party; but I think that it ought not to be permitted
until there has been an indemnification for the victims of the
offence, or at least a guarantee, either by the offender, or
directly by the State.
In short, for occasional criminals who commit slight offences, in
circumstances which show that they are not of a dangerous type, I
say, as I have said already, that reparation of the damage
inflicted would suffice as a defensive measure, without a
conditional sentence of imprisonment
As to the occasional criminals who commit serious offences, for
which reparation alone would not be sufficient, temporary removal
from the scene of the crime should be added in the less serious
cases, whilst in the cases of greater gravity, owing to material
and personal considerations, there should be indefinite
segregation in an agricultural colony, with lighter work and
milder discipline than those prescribed in colonies for born
criminals and recidivists.
The last category is that of criminals through an impulse of
passion, not anti-social but susceptible of excuse, such as love,
honour, and the like.
For these individuals all punishment is clearly useless, at any
rate as a psychological counteraction of crime, for the very
conditions of the psychological convulsion which caused them to
offend precludes any deterrent influence in a legal menace.
I therefore believe that in typical cases of criminals of passion,
where there is no clear demand for mental treatment in a criminal
lunatic asylum, imprisonment is of no use whatever. Strict
reparation of damage will suffice to punish them, whilst they are
punished already by genuine and sincere remorse immediately after
the criminal explosion of their legitimate passion. Temporary
removal from the scene of their crime and from the residence of
the victim's family might be superadded.
Nevertheless it must not be forgotten that I say this in
connection with criminals in whom the passionate impulse is really
exceptional, and who present the physiological and psychical
features of the genuine criminal of passion which I enumerated in
the first chapter.
I come to a different conclusion in the case of criminals who have
merely been provoked, who do not completely present these
features, who are actuated by a combination of social and
excusable passion with an anti-social passion, such as hate,
vengeance, anger, ambition, &c. Of such a kind are murderers
carried away by anger just in itself, by blood-feuds, or desire to
avenge the honour of their family, by vindication of personal
honour, by grave suspicion of adultery, &c.; persons guilty of
malicious wounding, disfigurement through erotic motives, and the
like.
These may be classed as occasional criminals, and
treated accordingly{.??}
Such, then, in general outline, is the positive system of social,
preventive, and repressive defence against crimes and criminals,
in accordance with the inferences from a scientific study of crime
as a natural and social phenomenon.
It is a defensive system which, in the nature of things, must of
necessity be substituted for the criminal and penitentiary systems
of the classical school, so soon as the daily experience of every
nation shall have established the conviction, which at this moment
is more or less profound, but merely of a general character, that
these systems are henceforth incompatible with the needs of
society, not only by their crude pedantry, but also because their
consequences are becoming daily more disastrous.
End of Project Gutenberg's Etext of Criminal Sociology by Enrico Ferri
