Chapter III: Practical Reforms (5)

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<p 279>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 <p 280>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<p 281>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 <p 282>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. <p 283>

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. <p 284>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.