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must be the study of organized society. The elimination of the criminal class must be the aim of criminal law. The abolition of academies of crime, supported by the State under the name of prisons, and the substitution, instead of indiscriminate imprisonment as penalties, of such treatment of offenders as is best adapted to rescue humanity from its weaknesses and depravity, is an essential part of the reform. With a wisdom rarely attained by legislators the Massachusetts Probation Act of 1891 provides:
SECTION 3. Each probation officer shall inquire into the nature of every criminal case brought before the court under whose jurisdiction he acts, and may recommend that any person committed by said court be placed upon probation. The court may place the person so convicted in the care of said probation officer for such time and upon such conditions as may seem proper.
No exception is made. The principle is of universal application, without reference to the name, definition, or supposed degree of the offence. The law is bold and universal in its consistency. The question for the court, upon the information of the probation officer, is simply whether it is safe for society that the prisoner go at large. It is not complicated by the irrelevant question whether the offence for which he is convicted bears. one name or another, whether it is drunkenness, assault, robbery, arson, or murder. It is true that the administrators of the law have hitherto been timid, and are everywhere bound in the fetters of traditional fallacies, so that its practical application has been limited to what are called petty offenders. Even the authors and the foremost advocates of the law have as yet not dared to demand its enforcement in cases of crimes which bear ugly names and are connected in the penal code with long periods of confinement. But the time has come to cast aside these fetters, and proclaim with boldness that, apart from the confirmed and habitual criminals whose whole lives are a revolt against civil order, the worst use you can put a man to is to make a State prisoner of him, and that the confinement of a human being in a jail can never be justified by any act he has committed, nor by any consideration but the conviction that he cannot, with safety to others, be left at large. A necessary consequence of the same principle is that, if in any case confinement becomes necessary, it must be continued until the offender is himself changed, and it is
safe to make him free. The Probation System and the Indeterminate Sentence are complements of one another, and essential parts of any true reform of criminal jurisprudence.
BY WARREN F. SPALDING,
SECRETARY MASSACHUSETTS PRISON ASSOCIATION.
The definite sentence had its origin in the theory regarding crime which prevailed centuries ago. A crime was then an act for which the State must retaliate upon the offender. It had its commercial bearings and aspects also. The State endeavored to estimate the amount of punishment which would, in some undefined way, equal the offence, and to measure off to the offender an amount of suffering or loss which should be the equivalent of his evil deed,- that he should be harmed as much as he had harmed another, or, if his of fence were one created arbitrarily by the State, to affix to it a commercial value and an equivalent penalty.
This theory dealt only with the past. It took no account of the interests of the criminal for the future, or even of the enormous interests of the State which are bound up in the future of the criminal. It assumed that the relations between the State and its delinquent subject would end when his term of imprisonment expired; that the transaction between the State and such subject would be completed when he had "paid" the penalty; and that, in fixing the punishment, the relations were merely those of debtor and creditor. The only other thought of the State, in punishing an offender, was that it might be possible to deter him or some other person from committing other offences.
The natural outcome of this theory was the system of definite sentences,— the measuring off of so much penalty for so much crime,— and a prison system which had for its main purpose the sure confinement of prisoners, and the imposition of a certain amount of discomfort, by compulsory labor, deprivation of privileges, etc. The
transaction ended, finally, by the discharge of the prisoner into the world, regardless of his fitness for a free life.
The contention of those who favor the indeterminate sentence has been, to a considerable extent, against the definite sentence itself. It should be against the theories upon which it is based, for the definite sentence is, in the main, consistent with those theories; and, if they are to prevail, it cannot be overthrown.
The theory upon which the indeterminate sentence is based differs from the old theory at every point. It denies that a crime is an act for which the State must retaliate upon the offender. If the individual who is harmed cannot and should not retaliate, it is not easy to see how the State can do so in his behalf. The State is not an avenger, with a mission to right the wrong which a criminal has done, but is to try to right the criminal, that he may cease to do wrong. A crime has no commercial relations, aspects, or value. The State cannot estimate the amount of punishment which will equal the offence, and is unable to measure off to the offender an amount of suffering or loss which is the equivalent of his evil deed. The injury which the offender inflicted upon another cannot be estimated. One person suffers ten times as much as another from two blows of exactly the same force or from the loss of a hundred dollars. And one prisoner suffers more in a month than his companion does in a year. Even if it were desirable to do so, it is impracticable to "make the punishment fit the crime." It could not be done, even if offences were exactly alike, or if sentences for similar offences were exactly equal in length.
Nor should crime be dealt with as a past act merely. The State has a greater interest in the criminal's future than it has in his past. It has great interests bound up in his development, mentally, morally, physically, and spiritually. The relations between the criminal and the State are perpetual. They should change as he changes. They should not change until he changes. They are not those of debtor and creditor, which will cease when the penalty is "paid." The imposition and service of a sentence are not the completion of a transaction between the State and one of its delinquent subjects. The decision, by the court, that he has broken one of the laws, establishes a new relation. He should be treated as a criminal, not for a definite time, fixed in advance by a judge, who tries to estimate the value of his one wrong act, but for an in
definite period, to be terminated by those who have him constantly in view, when they have reason to believe that he has ceased to be a criminal. And lest their decision, made while the prisoner is under wholesome restraints and stimulated by the impulse of a great desire for freedom, should not be a correct one, his release is conditional; and the continuance of the liberty won by him in prison depends upon a continuance in well-doing outside. Thus the punishment is made to fit the criminal at all times, and not "to fit the crime” at a given time.
This view of crime and punishment necessitates a change of system. If the old theories are to prevail, the definite sentence must be continued. If punishment is the main purpose of imprisonment, the term must naturally be fixed in advance by a judge, who shall decide how much shall be imposed for the offence committed. It has never been done successfully; but there is no better way of dealing with a single, definite, past act than to commit the decision to a judicial officer.
But the adoption of the other theory involves the imposition of indeterminate sentences. The reason for imprisoning a certain member of society is not merely that he has done a wrong act, but that he is a wrong-doer. His criminal act may properly be taken as a proof that he has such a character that he is unfit to be at large. It may not be true. His act may have been something entirely apart from himself, as reprehensible to him as it is to others. He may be far better than his deed, or far worse. But it is fair to assume that it justifies his removal from the community.
If this assumption is well founded, what should the State do next? Plainly, it should attempt to change his character. It owes this, in a way, to the offender; but it certainly owes it to itself. The expense of maintaining a prison is very large. If nothing is done to change the character of prisoners, most of this money is wasted. If they come out unchanged, the imprisonment has protected society for a brief period only. Permanent protection is secured only when the criminal is led to discontinue criminal pursuits.
The indeterminate sentence makes the direct appeal to the prisoner to reform. The definite sentence is understood by him to be a penalty for his wrong act. He knows that at the end of a given term he will be discharged, even if he is known to be determined to
continue a criminal life. The indeterminate sentence emphasizes the fact that he must change his character to secure release. definite sentence turns his attention to the past: the indeterminate sentence directs it to the future. In imposing the definite sentence, the main question is, "What did he do?" with the question, "What was he?" in a subordinate place. In imposing the indeterminate sentence, both of these questions are asked; but another and more important one is added, "What will he be?" or "When will he be changed?" No judge can answer this question in advance, and the time of his discharge should not be fixed until it has been answered. The wisest of men cannot tell what will be the effect
of imprisonment in any given case. One who is to take away another's liberty should have great knowledge, judgment, and skill. The wise restoration to the community of one who has committed crime is a task even more difficult and more important to the community, and requires the same qualifications. The knowledge can only be obtained by those who have the opportunity of testing the prisoner, and of knowing his conduct under vårying circumstances; namely, the prison authorities. It is absurd to suppose that any judge can tell in 1897 whether a criminal will be fit to return to the community in 1900 or not. Under the indeterminate sentence the decision regarding the time of release is postponed until fitness for release can be ascertained. If a man ought to be sent to prison, he ought to be kept there until his character is changed.
If a prisoner is not to be discharged until he is fit to be at liberty, the State should endeavor to prepare him for release. The theories which underlie the indeterminate sentence therefore demand a changed prison system. The central purpose in such a system should be the reformation of the inmates, and all the machinery used in the treatment of prisoners should be devised with this purpose. Each should be treated as an individual. The defects of one may be mental; of another, moral; of another, physical. The crime of one may be due to a lack of moral sense; that of another, to a lack of common sense. The State should try to remedy the defects of each. To make one's release depend upon reformation, and take no measures to secure it or to test it, is unfair to the prisoner and to the State.
The indeterminate sentence compels the treatment of prisoners as individuals. No one doubts that the man whose crime is wilful