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3.4. 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; 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.20

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.

Young persons who commit—

In other words, the system of repression proposed by M. Garofalo amounts to this:—

Table—continuation

[Description: A 300-dpi color image of tables of proposed punishments for various crimes motivated by various circumstances. ]

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:—

Table—continuation

[Description: A 300 dpi color image of table of proposed punishements for various crimes motivated by various circumstances. ]

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 mediæval 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 Pontès, and Roeder, who quote as favourable, though only for recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve, von Lichtenberg, Götting, 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 Mittelstädt, 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 régime," 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 (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."21

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."