Chapter III: Practical Reforms (3)

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 <p 212>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 <p 213>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. <p 214>

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 <p 215>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<p 216>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 <p 217>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. <p 218>

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 <p 219>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<p 220>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. <p 221>

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. <p 222>

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 <p 223>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 <p 224>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. <p 225>

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 <p 226>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 <p 227>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 <p 228>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 <p 229>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 <p 230>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, <p 231>after an experiment in treating condemned madmen at Bic<e^>tre, 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 ``Soci<e'>t<e'> G<e'>n<e'>rale 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, <p 232>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 <p 233>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 <p 234>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 <p 235>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,'' <p 236>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 <p 237>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

<p 238>

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 <p 239>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-<p 240>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 <p 241>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 <p 242>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 <p 243>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 <p 244>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.