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should be treated differently from the one who slipped by accident. Under the definite sentence, food, clothing, discipline, are the same for all, the only difference between different classes being in the length of the term of confinement. When prison treatment depends upon present character, and not merely upon a past act, the adjustment will be more intelligent.
The leading criticism of the indeterminate system is that it puts judicial powers upon executive officers. But it is plain that making a decision as to the time when a criminal shall return to society is not a judicial act, but a function of administration. The discharging board does not take away any legal rights from the prisoner. He forfeited those when he committed his crime. The adjudication relative to his guilt, and the decision that he has forfeited his liberty, are judicial acts, to be performed by a court. The restoration of his liberty, though affecting him incidentally, is more important to the community than to the prisoner. It is therefore left in the hands of those best qualified to determine whether he can be allowed to go at large with safety to the community. Depriving one of his liberty must be a judicial act: restoring that liberty is an executive act.
It should be added that the release of a prisoner from an indeterminate sentence is not an act of "clemency" or "mercy." We speak of "the demands of justice" as if they were met by the imprisonment of the criminal. But the great "demand" of justice is that the wrong-doer shall become the right-doer at heart. When a man is released from confinement without a change of character, this "demand" is not met. When one has proved his purpose to live correctly, and is discharged in consequence, there is neither "mercy" nor "clemency" in the release. He is merely treated justly.
The hope for the general adoption of the indeterminate sentence lies in two things,- in the better results obtained wherever it has a fair trial and in the increasing intelligence of the people regarding crime and its punishment. The old theory is losing its hold. New ones are securing attention. They are based upon certain propositions which are coming to be generally held. Among them are these:
That punishment should be made to fit the crime rather than the criminal.
That character, and not actions, should be the ground of treatment.
That a criminal act furnishes little proof regarding the real character or criminality of the offender.
That the criminal has forfeited his right to liberty, not for a definite time, fixed in advance, as the penalty for a single act, but until such time as he shall cease to have a criminal character.
That this cannot be ascertained before the convict begins his imprisonment.
That it is unfair to the community to release an unreformed criminal,
That the reformation of the criminal is one of the great purposes of imprisonment.
That the State is under obligation to endeavor to reform him.
That his release should be conditional, so that he can be returned if it is found that his reformation was not complete.
That in the course of time, when his reformation has been proved, he should be fully discharged.
There is no controversy regarding any of these propositions. When one asks whether a system of definite sentences is consistent with their acceptance, there is but one answer, an emphatic negative. The propositions must stand. Legislation must come to this standard. The principle of the definite sentence is unsound, and its results are unsatisfactory. The indeterminate sentence is consistent with sound theories of government, with what is known of human nature, with the best interests of the community and of the prisoner, and has produced good results. Its advocates are no longer upon the defensive; and its general adoption - not for reformatories merely, but for all institutions dealing with criminals, not for young offenders only, but for all classes, from the petty misdemeanant to the incorrigible felon - is only a question of time.
BY SAMUEL J. BARROWS,
INTERNATIONAL PRISON COMMISSIONER.
European prisons differ in different countries and in the same country as much as prisons in different States and in the same State in the United States. The impressions one may get from European prisons depend somewhat on the route of the traveller and his opportunities for seeing the best and the worst. It is the object of this brief paper simply to point to some features of European prisons and prison administration which seem to be worthy of study or of imitation in the United States.
The influence of the International Prison Congresses in Europe has been seen in the development of new ideals and standards in penal laws and penal administration. A certain physical standard, for instance, of excellence in prison construction, is now generally accepted among the highest civilized nations. Nearly all the enlightened nations of Europe are trying to move out of the bad conditions of a previous age. Whenever new prisons are erected, they are built with reference to modern standards as to light, air, and sanitary conditions. In respect to physical structure, some of the finest prisons in the world are found in England, France, Holland, Belgium, Germany, Austria, Hungary, Switzerland, and Italy. It takes time, however, and money to make the change from the old to the new; and progress must be gradual. In Great Britain the change has been pretty well made; and most of the old dilapidated or inferior prisons have been abandoned, and newer and better ones substituted. England is practically on a modern system. France is thoroughly progressive in spirit, and has achieved some splendid results. In La Santé, at Paris, the French have shown what they mean by a modern prison. In the departments, however, they are still hampered by the lack of good buildings. Many of them are simply old feudal castles, which have been turned into departmental prisons. They are ill adapted to the purpose; and, though one of them which I visited last summer had inner walls of nine feet in thickness, yet they offer no security against the escape of prisoners, and do not furnish proper conditions for reformatory
influences. The same is true of Italy. One of the finest prisons in But it will take some time for Italy to aban
the world is in Rome.
The separate, or cellular, system has been accepted in France, Belgium, Holland, and in other parts of the Continent as the idea system. Much emphasis is laid upon it by many leaders. I cannot but think that its value has been greatly overrated. A new interest has been awakened in Europe in the reformatory system as it has been applied and developed in this country, especially with reference to young prisoners.
My object, however, is not to point out the defects in European systems so much as some of the advantages which they have
Penal Codes.- Inseparable from every prison system are the criminal laws under which sentences are imposed. At the International Prison Congress one section is always devoted to the important subject of criminal law. Different States in Europe have seen that it is not only necessary to reconstruct their prisons, but to revise their criminal codes. France has done much in this direction, and is considering further revision; Switzerland likewise. Italy has but lately thoroughly overhauled its criminal code and eliminated ancient and barbaric features. One great advantage which France, Italy, and other European countries have over the United States is that their criminal codes are made to cover the whole extent of their country. They do not have the difficulties which arise from separate State or provincial codes. Thus in the United States we not only have no well-digested federal code, but each of our forty-five States has its own code. The complications, contradictions, practical and ethical, which arise from such inconsistent estimates of the character of crimes and the punishment to be awarded to them, are well known to every one who has given the slightest attention to the subject. While different cities may naturally have different municipal regulations, according to local ideas as to the best way to regulate the health of a community, to protect life and to maintain order, yet, when it comes to the definition and classification of crimes and the administration of penalties, our law should represent, not a local tradition or sentiment, but the moral standards of a whole State and the intelligence of the best developed civilization. To divide off codes by arbitrary, political,
or by physiographical boundaries is unnatural and unethical. prevents the application of even-handed justice and of uniform treatment of crime and criminals. A prisoner who is arrested in France or in Italy knows that, so far as the criminal code is concerned, the pressure of law will be equal anywhere within the bounds of those nations. The code may be good or bad, but it is at least consistent. The moral and legal distinctions drawn in different States of the United States are so confused and contradictory as to be a parody upon our civilization. The differences arise, of course, from our theories of local government; and it is not easy to see how uniformity can be attained in the United States without a development of the idea that crimes should at least be classified on certain broad lines of distinction, which should cover the whole country. There are two elements in every criminal code. One is that of classifying crimes and providing tests for classification, and the other is the affixing of penalties. If we could secure a more general uniformity in the classification of crime, the adoption of the indeterminate sentence would be the best solution for penalties.
The Congress of the United States has just made an appropriation for the codification and revision of the criminal laws of the United States, and a commission of three members has been appointed by the President to do this work. It is a part of the plan of the writer of this paper in representing the United States abroad this summer on the International Prison Commission to secure special monographs on the criminal codes of Europe. While civilized nations have made progress in the classification of crime and in the abatement of penalties, no principles have been discovered or formulated under which punishments can be wisely and equitably scaled with reference to offences. Sufficient elasticity in a code to permit the adoption of the indeterminate sentence is, as before said, the only solution of the question yet apparent.
Identification of Criminals.— A few countries, notably France, have already taught us lessons in the measurement and identification of criminals. I do not refer here to the methods of Lombroso and his disciples in criminal anthropology, by which they undertake, through purely physical studies and external indications, to establish a criminal type. This method has proved thus far altogether unfruitful and unreliable. Neither Lombroso nor any of his followers has succeeded in demonstrating the existence of a purely criminal type.