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crime, except those who are very doubtful of recovery. For all corrigibles the old-fashioned plan of lying in prison till a term expiresa plan which was based on the retributive principle — is futile and inadequate. Something better is discovered. Even industrious labor alone, which assuages the bitterness of imprisonment, and greatly diminishes the morbid self-consumption which is the mosdisastrous result of idle incarceration, goes a very short distance toward entire rehabilitation compared with the Brockway method of individual treatment, by cultivating the moral forces in a man through the physical and intellectual.

We believe that this treatment should be for an indefinite terms and by this we by no means intend a perpetual term, but a term the release from which should not be based upon any idea that an imprisonment of such and such a length is an equivalent for such and such a crime. This also had its origin in the obsolete theory of retribution. Opponents of the principle of undetermined sentences have attacked that principle as cruel, because of the alleged hopelessness of a state of confinement the limit of which cannot be seen. In point of fact, it is the most merciful and hopeful form of imprisonment possible, because its duration is in the prisoner's own hands, and depends upon his submission to be a good citizen, selfrespecting, obedient to law, and considerate of the rights of others.

The decision of the period for release must be in the power of prison commissioners, or of some authority as wise and just as can be secured, who will act upon systematic and full information as to each particular case.

We have made an exception from this treatment of the persons regarded as incorrigible. But for them also the commitment should be indeterminate as to duration, and, in a stricter sense, as likely to be more permanent. Like a hospital for incurables, the prison for them would accommodate a much smaller annual number than that for the shorter term convicts. It would be costly to maintain and costly to build, by reason of the greater necessity for security; but in this case the outlay will repay the community, for the reason that it will save society from frequent depredations and the expense of repeated trials. And even in their case, inasmuch as, "while the lamp holds out to burn, the vilest sinner may return," we are not sure that the Brockway idea will not apply, with modifications adapted to the conditions. The problem would be a tougher one,

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but the conduct and even the hearts of these hardened men would sometimes prove capable of softening.

The same modifications, therefore, which we would propose for corrigibles, may be applied also to incorrigibles, as far as the unfixed sentence and the reformatory methods are concerned. Less applicable to them would be the treatment upon release; but few of them, probably, would ever live to be released. Yet, if supposed incorrigibles ever should be, it might well be on a parole, extending to a year, eighteen months, or two years, according to the judgment of the commissioners as to the more or less entire rehabilitation of the discharged prisoner.

Keeping reformation in mind as the fundamental of all treatment for crime, we come back to the class heretofore referred to, who have usually been dealt with pre-eminently in a retributive sense, and who ought pre-eminently, on the contrary, to be subjects for reformation; that is, inebriates. It need not be said that society has itself to blame that drunkenness exists in America to a degree unheard of elsewhere. We need not say that the enormous business of saloons for the sole purpose of selling intoxicating liquors as a beverage ought to be prohibited by law. What we are now concerned with is how to deal with its victims after the mischief is done. And for these, no less than the other two classes, and again for a somewhat different reason, an unfixed sentence should be imposed,not to a dungeon, not to a reformatory, but to a State or county hospital for inebriates, the one object being to cure the patient, to break the habit that binds him hand and foot, and to restore him to a condition of abstemiousness and usefulness in his community. his case the violation of law should surely be treated as if it were a disease, as, indeed, it has too often become. But, although under sentence, the folly in his case of a brief sentence, such as is usually imposed, just long enough to make him frightfully thirsty, is too manifest to need more than mention. For him nothing is of any use but a long and indefinite term; as in insanity, to last until cured. Thus in every phase of crime requiring detention, inebriety included, it is shown that the sentence should be indeterminate. How should it be otherwise, when the term sentence is the child merely of vengeance, paying the criminal so many weeks' worth of imprisonment for * such an amount of crime? It cannot be otherwise, if the theory of reformation is the correct basis of treatment for crime, than that the


proper term of detention cannot be adjudged beforehand, but must depend upon factors in each case undetermined in advance; and in each, therefore, sentence should be imposed to the inebriate hospital, to the reformatory, or to the penitentiary, there to be detained until, in the judgment of the proper authorities, restored to correct habits, and then released on parole.

For the carrying of these views into practical effect, we would urge:

1. The abandonment of county jails by every State as a factor in its penal system.

2. Reform schools for boys and girls.

3. One or more houses of correction and reformation for misdemeanants, such as inebriates, vagrants, etc., with thorough provision for hard work and a hospital for habitual drunkards.

4. A series of houses of detention for persons awaiting trial and for witnesses, each State being districted into groups of counties for this purpose.

5. Two or more reformatories, on the Brockway plan, for corrigible offenders of the male sex and of any age above sixteen.

6. One woman's reformatory.

7. One or more penitentiaries for the incorrigible class.

8. One hospital for the criminal insane.

In conclusion, we express our belief that much disadvantage arises from the inequalities of the penal statutes in different States, and that benefit would result from a convention in which all the States would be represented by gubernatorial appointments of jurists or of men learned in the law of their several States, for the purpose of harmonizing, if possible, their criminal codes, and correcting the ancient defects which had their origin in the ignorance of a bygone age.

The long continuance of "black holes " in the most enlightened States, of errors in criminal jurisprudence long since exposed, and of lame and impotent systems after their evils are known, is discreditable to our civilization. It looks as though this generation were not in earnest in the desire to diminish crime. "If ye know these things, happy are ye if ye do them."



The history of imprisonment remains to be written. In ancient times it was the method of restraining foes and of safely keeping those who were accused for trial or for punishment. Gradually grew up in the last century the substitution of prisons for enormous fines, whippings, mutilations, and death. The influence of compassion was the most important in bringing it about. Side by side with this substitution arose new notions of mitigating the pains, and especially the moral sufferings of prisoners. It is only in very recent times that imprisonment has been studied in penal codes as a means of distributing exact justice to offenders, by proportioning the length of sentences to the supposed enormity of offences and the supposed desert of criminals. This principle has in recent years reached its highest development in the penal codes of many nations, that of Italy being the most elaborate. The drafting of such codes has been called a science; and in the administration of them the courts and officers of the law, in every civilized land, are now required, when a criminal is detected and tried, to attach to the particular deed proved against him one of the many names of offences defined in the law, and to determine, within the prescribed limits, how many months or years of prison life he deserves to suffer as retribution for the deed.

Meanwhile, though penal law has moved steadily in these old ruts, the conscience and intelligence of the age have advanced beyond it. Men have come to see that retribution for offences is no part of the duty of society; and that it is, in its nature, impossible. The impracticability of framing a scale of guilt, and attaching its degrees to offences by name, has been proved by innumerable trials. No two codes agree, even in broad outlines; and a comparison of them shows that no principle in framing them is attainable. Nor, if a perfect code were conceivable, and were actually devised, could its administration be made approximately equitable. The degree of indignation felt by the judge is, of course, the determining influence in fixing the sentence; but no two judges are just alike in their moral constitution, nor indeed is any one judge so uniform in his impulses.

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of wrath against wrong that he can be expected to proportion his severity, even to his own conceptions of guilt, by a uniform scale. By any test whatever, which is impersonal, the entire system of sentences to imprisonment, according to the degree of the offence, is a tangled mass of injustices and absurdities, such as needs but to be examined in order that the moral sense of mankind shall revolt against it.

Further, the idea out of which this system has grown is fundamentally false. To repay men for crime according to their deserts is the professed aim of our penal codes. The statement of the aim is the exposure of its futility. The law itself carefully excludes from the trial of a criminal every element of an inquest into his deserts by limiting it to the particular charge formulated in the indictment and by restricting in many ways the discretion and powers of the court. Were judges and juries invested with all the attributes of the Almighty they could not administer the existing penal laws of any country with any tolerable approach to equity. The effort is as useless as the achievement is impossible. All practical students of the subject know that the theory of retribution has no value in the police work of the world. As a matter of fact, its advocates long ago abandoned the defence of the principle. No one outside of the small circle of technical students, who draft codes, any longer pretends that there is a semblance of justice in the distribution of terms of imprisonment as penalties. They have fallen back on two pretexts as the bulwarks of the system: first, that the fear of the punish- · ments prescribed by law has a deterrent power to keep men from committing offences; and, secondly, that these penalties are a natural expression of moral indignation against crime, by which society as a whole associates itself with the Divine Ruler of men and imitates his government.

There is no time to-day to discuss these pretexts in detail. I am convinced that both are without force. That the fear of detection deters some men from crime is true. It is also true that the law, by specifying and defining the acts which society regards as wrong, contributes to the education of conscience and the formation of orderly and right habits among its members. But all this does not tend in any degree to prove that a law which falsely professes to render to every offender his due is necessary or useful. On the other hand, the pretence of investing the law with divine attributes is a mockery

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