Chapter 2

should be distinct functionaries, 173--The student of law should study criminals, 174--Training of police and prison officers, 174--The status of the criminal judge, 175--The authority of the judge, 176. III. The jury, 177--Origin of the jury, 178--Advantages of the jury, 179--Defects of the jury, 180--The jury as a protection to liberty, 182--The jury and criminal law, 184--Juries untrained and irresponsible, 186-- Numbers fatal to wisdom, 188--Defects of judges, 193--Difference between the English and Continental jury, 194--Social evolution and the jury, 196--The jury compared to the electorate, 197--How to utilise the jury, 198. IV. Existing prison systems a failure, 201--Defects of existing penal systems, 201--The abuse of short sentences, 202--The growth of recidivism, 203--Garofalo's scheme of punishments, 204--Von Liszt's scheme of punishments, 206--The basis of a rational system of punishment, 207--The indeterminate sentence, 207--Flogging, 210--The indefinite sentence for habitual offenders, 211--Van Hamel's proposals as to sentences, 212--The liberation of prisoners on an indefinite sentence, 213--The supervision of punishment, 213--Conditional release, 215--Good conduct test in prisons, 216--Police supervision, 216-- Indemnification of the victims Of crime, 217--The duty of the State towards the victims of crime, 222--Defensive measures must be adapted to the different classes of criminals, 225--Uniformity of punishment, 225--The prison staff, 227--Classification of prisoners, 227--Prison labour, 228. V. Asylums for criminal lunatics, 230--The treatment of insane criminals, 232--Crime and madness, 234--Classification of asylums for criminal lunatics, 237--The treatment of born criminals, 238--The death penalty, 239--Extension of the death penalty, 243--Inadequacy of the death penalty, 245--Imprisonment for life, 246--Transportation, 248-- Labour settlements, 249--Establishments for habitual criminals, 250--Criminal heredity, 251--Incorrigible offenders, 252-- Cumulative sentences, 253--Uncorrected or incorrigible criminals, 254--Cellular prisons, 256--Solitary confinement, 257--The progressive system of imprisonment, 257--The evils of cellular imprisonment, 260 --The cell does not secure separation, 262-- Costliness of the cellular system, 263--Labour under the cellular system, 264--Open-air work the best for prisoners, 265--The treatment of habitual criminals, 266--The treatment of occasional

criminals, 267--The treatment of young offenders, 268-- Futility of short sentences, 268--Substitutes for short sentences, 269--Compulsory work without imprisonment, 271 --Conditional sentences, 271--Conditional sentences in Belgium, 273--Conditional sentences in the United States, 275--Objections to conditional sentences, 276--When the conditional sentence is legitimate, 282-- The treatment of criminals of passion, 282--Conclusion, 284. INTRODUCTION. _THE POSITIVE SCHOOL OF CRIMINAL LAW_. DURING the past twelve or fourteen years Italy has poured forth a stream of new ideas on the subject of crime and criminals; and only the short-sightedness of her enemies or the vanity of her flatterers can fail to recognise in this stream something more than the outcome of individual labours. A new departure in science is a simple phenomenon of nature, determined in its origin and progress, like all such phenomena, by conditions of time and place. Attention must be drawn to these conditions at the outset, for it is only by accurately defining them that the scientific conscience of the student of sociology is developed and confirmed. The experimental philosophy of the latter half of our century, combined with human biology and psychology, and with the natural study of human society, had already produced an intellectual atmosphere decidedly favourable to a practical inquiry into the criminal manifestations of individual and social life.

To these general conditions must be added the plain and everyday contrast between the metaphysical perfection of criminal law and the progressive increase of crime, as well as the contrast between legal theories of crime and the study of the mental characteristics of a large number of criminals. From this point onwards, nothing could be more natural than the rise of a new school, whose object was to make an experimental study of social pathology in respect of its criminal symptoms, in order to bring theories of crime and punishment into harmony with everyday facts. This is the positive school of criminal law, whereof the fundamental purpose is to study the natural genesis of criminality in the criminal, and in the physical and social conditions of his life, so as to apply the most effectual remedies to the various causes of crime. Thus we are not concerned merely with the construction of a theory of anthropology or psychology, or a system of criminal statistics, nor merely with the setting of abstract legal theories against other theories which are still more abstract. Our task is to show that the basis of every theory concerning the self-defence of the community against evil-doers must be the observation of the individual and of society in their criminal activity. In one word, our task is to construct a criminal sociology. For, as it seems to me, all that general sociology can do is to furnish the more ordinary and universal inferences concerning the life of communities; and upon this canvas the several sciences of sociology are delineated by the specialised observation of each

distinct order of social facts. In this manner we may construct a political sociology, an economic sociology, a legal sociology, by studying the special laws of normal or social activity amongst human beings, after previously studying the more general laws of individual and collective existence. And thus we may construct a criminal sociology, by studying, with such an aim and by such a method, the abnormal and anti-social actions of human beings--or, in other words, by studying crime and criminals. Neither the Romans, great exponents as they were of the civil law, nor the practical spirits of the Middle Ages, had been able to lay down a philosophic system of criminal law. It was Beccaria, influenced far more by sentiment than by scientific precision, who gave a great impetus to the doctrine of crimes and punishments by summarising the ideas and sentiments of his age.[1] Out of the various germs contained in his generous initiative there has been developed, to his well-deserved credit, the classical school of criminal law. [1] Desjardins, in the Introduction to his ``Cahiers des tats Gnraux en 1789 et la Lgislation Criminelle,'' Paris, 1883, gives a good description of the state of public opinion in that age. He speaks also of the charges which were brought against the advocates of the new doctrines concerning crime, that they upset the moral and social order of things. Nowadays, charges against the experimental school are cited from these same advocates; for the revolutionary of yesterday is very often the conservative of to-day. This school had, and still has, a practical purpose, namely, to diminish all punishments, and to abolish a certain number, by a magnanimous reaction of humanity against the arbitrary harshness of medival times. It had also, and still has, a method of its own,

namely, to study crime from its first principles, as an abstract entity dependent upon law. Here and there since the time of Beccaria another stream of theory has made itself manifest. Thus there is the correctional school, which Roeder brought into special prominence not many years ago. But though it flourished in Germany, less in Italy and France, and somewhat more in Spain, it had no long existence as an independent school, for it was only too easily confuted by the close sequence of inexorable facts. Moreover, it could do no more than oppose a few humanitarian arguments on the reformation of offenders to the traditional arguments of the theories of jurisprudence, of absolute and relative justice, of intimidation, utility, and the like. No doubt the principle that punishment ought to have a reforming effect upon the criminal survives as a rudimentary organ in nearly all the schools which concern themselves with crime. But this is only a secondary principle, and as it were the indirect object of punishment; and besides, the observations of anthropology, psychology, and criminal statistics have finally disposed of it, having established the fact that, under any system of punishment, with the most severe or the most indulgent methods, there are always certain types of criminals, representing a large number of individuals, in regard to whom amendment is simply impossible, or very transitory, on account of their organic and moral degeneration. Nor must we forget that, since the natural roots of crime spring not only from the individual organism, but also, in large measure, from its physical and social environment,

correction of the individual is not sufficient to prevent relapse if we do not also, to the best of our ability, reform the social environment. The utility and the duty of reformation none the less survive, even for the positive school, whenever it is possible, and for certain classes of criminals; but, as a fundamental principle of a scientific theory, it has passed away. Hitherto, then, the classical school stands alone, with varying shades of opinion, but one and distinct as a method, and as a body of principles and consequences. And whilst it has achieved its aim in the most recent penal codes, with a great, and too frequently an excessive diminution of punishments, so in respect of theory, in Italy, Germany, and France it has crowned its work with a series of masterpieces amongst which I will only mention Carrara's ``Programme of Criminal Law.'' As the author tells us in one of his later editions, from the <_a!> priori_ principle that ``crime is a fact dependent upon law, an infraction rather than an action,'' he deduced--and that by the sheer force of an admirable logic--a complete symmetrical scheme of legal and abstract consequences, wherein judges are compelled, whether they like it or not, to determine the position of every criminal who comes before them. But now the classical school, which sprang from the marvellous little work of Beccaria, has completed its historic cycle. It has yielded all it could, and writers of the present day who still cling to it can only recast the old material. The youngest of them, indeed, are condemned to a sort of Byzantine discussion of

scholastic formulas, and to a sterile process of scientific rumination. And meantime, outside our universities and academies, criminality continues to grow, and the punishments hitherto inflicted, though they can neither protect nor indemnify the honest, succeed in corrupting and degrading evil-doers. And whilst our treatises and codes (which are too often mere treatises cut up into segments) lose themselves in the fog of their legal abstractions, we feel more strongly every day, in police courts and at assizes, the necessity for those biological and sociological studies of crime and criminals which, when logically directed, can throw light as nothing else can upon the administration of the penal law.