vitality, such as it has retained, for instance through so many historical changes, amongst the Anglo-Saxons.
And if sometimes the jury can withstand the abuses of government, still too frequently it does not withstand its own passions, or the influence of the social class (the _bourgeoisie_ in our own day), to which nearly all juries belong. It is notorious, in fact, that the jury is more rigorous in regard to prisoners accused of crimes against property than in regard to those accused of crimes against the person, especially crimes instigated by personal motives such as hate, vengeance, or the like; for every juryman thinks that he himself might be a victim of the exploits of a thief, or the attacks of a murderer for the sake of gain; whereas there is less reason to fear a murder provoked by vengeance, an outrage, an embezzlement of public money, or the like. And Macchiavelli said that men would rather have blood drawn from their veins than money from their pockets.
Besides, the same jury which will resist pressure from the Government does not resist popular pressure, direct or indirect, especially in view of the secrecy of their individual votes. No doubt there are noble exceptions; but society is made up of average virtues, and only upon them can it count.[17]
[17] In Dublin, for the trial of the murderers of Burke and Lord Frederick Cavendish, in 1883, the empanelling of the jury was very difficult, for nobody was willing to expose himself to the vengeance of the fanatics.
And when it is continually asserted, in the words
of
Jouffroy, that the jury is an outpost of liberty, or in those of Carrara, that it is its necessary complement, we have to remark that this would be true if the jury were instituted by a despotic government; but when popular liberties have far more effectual guarantees in the political organisation of the State, then this quality of the jury is more apparent than real.
In fine, either the government is despotic, and then juries are not strong enough to preserve liberty, as in England from the time of Henry VIII. to that of James II.; or, as Mittermaier said, “when authority is corrupt, and the judge is cowardly or terrorised, a jury cannot assist in the defence of liberty.” Or else the government is liberal, and then the judges also are independent, so that there is no need of juries, especially with the guarantees of their independence which I have already indicated.
Now history reminds us that the jury is never instituted by despotic governments. It was refused, for instance, in upper Italy by Napoleon in 1815, in Naples by the Bourbons in 1820, in Lombardy by Austria in 1849, and in our own day in Russia, for political crimes, though it is allowed for ordinary crimes.
Thus the jury, as a political and liberal institution, is oddly destined to be excluded when it would be serviceable, and to be useless when it is admitted. It reminds us of the destiny of the National Guard.
But, even in England, the jury is regarded as especially a legal institution; and the main qualities attributed to it in this connection are moral judgment and private conviction.
The law, we are told, has always a certain harshness and insufficiency, for it ought to provide for the future whilst grounding itself on the past, whereas it cannot foresee all possible cases. Progress is so rapid and manifold, in modern society, that penal laws cannot keep pace with it, even though they are frequently recast–as for instance in Bavaria, which in one century has had three penal codes, and in France, where an almost daily accumulation of special laws is piled upon the original text of the most ancient code in Europe.
The jury, by its moral judgment, corresponding in some degree to the equity of the ancients, is able to correct the _summum jus_ with verdicts superior to the written law. And, in addition, the jury always follows its private conviction, the inspiration of sentiment, the voice of the conscience, pure instinct, in place of the stern and artificial maxims of the trained lawyer.
I do not deny these qualities of the jury; but I very much suspect that they are serious and dangerous vices rather than useful qualities in a legal institution.
In the first place, I believe that the distinction of powers or social functions, corresponding to the natural law of division of labour, ought not to be destroyed by the jury. The duty of the judicial power, before everything else, is to observe and apply the written law; for if we once admit the possibility that the judge (popular or trained) has to amend the law, all guarantee of liberty is lost, and the authority of the individual is unlimited. As I have said above,
we allow the authority of the judge only when we have actual guarantees of his capacity and independence, and always within the limits of the general precepts of the law, and under the control of a superior disciplinary power.
But the omnipotence of the jury, liberated from all reasonable regulation, with no directing motives for its verdict, and no possibility of control, is a two-edged blade, which may sometimes improve upon the law, or at least usefully indicate to the legislator the tendencies of public opinion in regard to a particular crime. But it may also violate the law, and the liberty of the individual, and then we pay too dear for the slight advantage which the jury can confer, and which might be replaced by other manifestations of public opinion. In any case, as Bentham said, it is better to have our remedy in the law than in the subversion of the law.
As for private conviction, we willingly admit that no system of legal proof is acceptable. But it is one thing to substitute for the legal and artificial assurance of the law the assurance of the judge who tries the case, and quite another thing to substitute for conviction founded on argument, and for a critical examination of the evidence collected during the trial, the blind and simple promptings of instinct or sentiment.
Even apart from technical notions, which we consider necessary to the physio-psychological trial of any accused person, social justice certainly cannot be dispensed through the momentary and unconsidered impressions of a casual juryman. If a criminal trial
consisted of the simple declaration that a particular action was good or bad, no doubt the moral consciousness of the individual would be sufficient; but since it is a question of the value of evidence and the examination of objective and subjective facts, moral consciousness does not suffice, and everything should be submitted to the critical exercise of the intellect.
To the instinctive blindness of the judgment of juries we must add their irresponsibility.
No doubt if the legislator required from all judges a simple Yes or No, then perhaps the jury would be as good as the magistrate. But instead of the unexplained verdict which Carmignani called “the method of the cadi,” we are of opinion that there should always be substituted a sentence based on reasons and capable of control, especially in the positive system of criminal procedure, which demands from the judge an acquaintance with anthropology and criminal sociology, and from his sentence the elements necessary to the subsequent treatment of the convict, in agreement with the characteristics of his individuality and of his crime.
But not only is the jury devoid of the qualities attributed to it; it has a fatal defect, which alone is sufficient to condemn this institution of the law.
In the first place, it is not easy to understand how a dozen jurymen, selected at hazard, can actually represent the popular conscience, which indeed frequently protests against their decisions. In any case, the fundamental conception of the jury is that the mere fact of its belonging to the people gives it the right to judge; and as the ancient assemblies are no
longer
possible, the essence of the jury is that chance alone must decide the practical exercise of this popular prerogative.
Now these two conceptions of the jury are in manifest contradiction with the universal rule of public end private life, that social functions should be exercised by persons selected as most capable.
Thus in everyday life we all require of every labourer the work of which he is more particularly capable. No one would dream, for instance, of having his watch mended by a cobbler. The administration of criminal justice, on the contrary, is demanded of any one we chance to come across, be he grocer or man of independent means, painter or pensioner, who may never in his life have witnessed a criminal trial!
The irregularity of our statutes corresponds to the incapacity of individual jurymen; for it is evident that we cannot impose the rigorous process of a special mode of procedure on the first- comer. And the law heightens the absurdity by plainly declaring that juries must give their decision without regard to the consequences of their verdict! “Jurymen fail in their highest duty when they have regard to the penal law, and consider the consequences which their verdict may have upon the accused” (Article 342 of the French code of criminal procedure).
That is to say, criminal justice should be based on the neglect of the elementary rule of justice, according to which every man ought always to consider the possible consequences of his actions. And the criminal law demands from juries this proof of
their
blindness (which is fortunately impossible) that they should judge blindfold, with no regard for the prisoner, or for the consequences which their verdict may have upon him.
It was impossible that the advocates of the jury should fail to see the absurdity of these principles; and they have been compelled to slur them over, at any rate in ordinary practice.
In respect of the composition of juries, restrictions have been introduced, by means of lists of eligible persons, selection by lot, the optional exclusion of a certain number of jurymen by the public prosecutor and the defence, &c. All these expedients, however, some of which are imposed by necessity, can only insure a general and presumptive capacity, for they have the merely negative effect of contributing to exclude the most manifest moral or intellectual incapacity. But the only capacity which is necessary in a judge, which is a special and positive capacity, is not guaranteed by these restrictions, which, after all, are a negation of the very principle of the jury.
And even if the jury were always composed of persons of adequate capacity, it would still be condemned by two inevitable arguments of human psychology.
First, the assembling of several individuals of typical capacity never affords a guarantee of collective capacity, for in psychology a meeting of individuals is far from being equivalent to the aggregate of their qualities. As in chemistry the combination of two gases may give us a liquid
so in
psychology the assembling of individuals of good sense may give us a body void of good sense. This is a phenomenon of psychological fermentation, by which individual dispositions, the least good and wise, that is the most numerous and effective, dominate the better ones, as the rule dominates the exceptions. This explains the ancient saying, “The senators are good men, but the Senate is a mischievous animal.”
And this fact of collective inferiority, not to say degeneracy, is observed in casual assemblies, such as juries, meetings, and the like, far more than in organised and permanent councils of judges, experts, &c.
Secondly, the jury, even when composed of persons of average capacity, will never be able in its judicial function to follow the best rules of intellectual evolution.
Human intelligence, in fact, both individual and collective, displays these three phases of progressive development: common sense, reason, and science, which are not essentially different, but which differ greatly in the degree of their complexity. Now it is evident that a gathering of individuals of average capacity, but not technical capacity, will in its decisions only be able to follow the rules of common sense, or at most, by way of exception, the rules of reason–that is, of their common mental habits, more or less directed by a certain natural capacity. But the higher rules of science, which are still indispensable for a judgment so difficult as that which bears on crimes and criminals, will always be unknown to it.
As for the irregularity of the action of a jury, it has been deemed that this can be provided against by the formal distinction between a decision of fact and a decision of law, in obedience to the advice of Montesquieu, that “to the popular judgment we should submit a single object, a fact, a single fact.”
But without dwelling on the remark of Hye-Glunek, that in this way the legal problem, which ought to be as indivisible as the syllogism which creates it, is cut into two parts, it is evident that Cambac<e’>r<e!>s was amply justified in saying, in the Council of State, that the separation of fact from law is a fallacy.</e!></e’>
In fine, not only under the positive system of criminal procedure, which demands of the judge, in addition to legal conceptions of crime, some anthropological and sociological knowledge of criminals, but even at the present day it is more correct to say that the jury is concerned with the crime–that is, in the words of Binding, with a legal fact, and not merely a material fact; whilst the judge is concerned with the punishment. Thus, in the Assize Court, the separation of the judgments is not between fact and law, but only between the crime and the punishment
Even admitting the possibility of this separation of fact and law, logic and experience have already belied the assertion of those who say with Beccaria that, “for the appreciation of facts, ordinary intelligence is better than science, common sense better than the highest mental faculties, and ordinary training better than scientific.”
On the contrary, a criminal trial is not only concerned with the direct perception of facts, but also and especially with their critical reconstruction and psychological appreciation. In civil law the fact is really accessory, and both sides may be agreed in its exposition, whilst disputing about the application of the law to this fact. But in criminal justice the fact is the principal element, and it is not merely necessary to admit or to decide upon this or that detail, but we have also to regard its causes and effects, from the individual and the social point of view, without speaking of the common difficulty of a critical and evidential appreciation of a mass of significant circumstances. So that, as Ellero said, in a criminal trial the decision as to fact is far more difficult than that as to law. And by this time daily practice has accumulated so many proofs, more or less scandalous, of the incapacity of the jury even to appreciate facts, that it is useless to dwell upon them.
To conclude this question of the jury, it remains to speak of its defects, which are not the more or less avoidable consequences of a more or less fortunate application of the principle, which might be the case with any social institution, but, on the contrary, are an inevitable consequence of the laws of psychology and sociology.
So far as science is concerned, a fact exists in connection with a general law. For common sense, on the other hand, the actuality of the particular fact is the only matter of concern. Hence the inevitable tendency of the jury to be dominated by isolated
facts, with no other guide than sentiment, which, especially in southern races, confines all pity to the criminals, whilst the crime and its victims are all but forgotten. The very keenness of sentiment which would urge the people to administer “summary justice” on the criminal, when surprised in the fact, turns entirely in his favour when he is brought up at the assizes, with downcast mien, several months after the crime. Hence we obtain an impassioned and purblind justice.
And the predominance of sentiment over the intelligence of the jury is revealed in the now incurable aspect of judicial discussions. There is no need and no use for legal and sociological studies and for technical knowledge; the only need is for oratorical persuasiveness and sentimental declamations. Thus we have heard an advocate telling a jury that, “in trials into which passion enters, we must decide with passion.” Hence, also, the deterioration of science in the Assize Courts, and its faulty application, and its completely erroneous consequences.
Moreover, the verdict of the jury cannot represent the sum of spontaneous and individual convictions–not only in countries where juries are exposed to all kinds of influences during the adjournments of the discussion, but even in England, where unanimity is required, and where all communication of the jury with the outer world is forbidden until the end of the trial. For in every case the influence of the most intriguing or most respected jurymen in the jury’s room is always inevitable. So that we have even
had irresponsible suggestions of public deliberation on the part of the jury.
Against these defects of the jury its advocates have set an objection in regard to the trained judge, namely that the habit of judging crimes and offences irresistibly inclines the judge to look upon every prisoner as guilty, and to extinguish the presumption of innocence even in cases where it would be most justified.
This objection has really a psychological basis; for the conversion of the conscious into the unconscious, and the polarisation of the intellectual faculties and dispositions, are facts of daily observation, determined by the biological law of the economy of force. But it is not sufficient to make us prefer juries to judges.
In addition to the fact that this mental habit of judges may be counteracted by a better selection of magistrates under the reforms which I have indicated, it is to be observed that this presumption of innocence, as we have seen, is not so absolute as some would have us believe, especially in case of a trial which follows upon a series of inquiries and proofs in; the preliminary hearing.
Again, this tendency of judges is restrained and corrected by the publicity of the discussions. And all, or nearly all, the famous and oft-repeated instances of judicial errors go back to the time of the inquisitorial and secret trial–in regard to which an interesting historical problem presents itself; that is to say the co-existence of the inquisitorial trial, which impairs every individual guarantee, with the political liberties of the medival Italian republics.
This is why the number of acquittals, and of the admission of extenuating circumstances, is always very remarkable, even in the Correctional Tribunals, which in Italy show proportions not greatly differing from those of the Assize Courts.
We must remember that, under our modern penal procedure, it is not the individual guarantees that are lacking, such as the assigning of reasons for the sentence, the almost total abolition of punishments which cannot be reconsidered, appeals, reversals, revision, which would be still more efficacious under the positive system which we propose.
One logical consequence of the psychological objection raised against judges would be the granting of a jury even in the Correctional Tribunals, though the experience which we have of it in the Assize Courts is not so encouraging as to leave many advocates of a jury in the minor courts.
But a decisive objection, founded on the most positive data of sociology, can be raised against the jury.
The law of natural evolution proves that no variation in the vegetable or animal organism is useful or durable which is not the outcome of a slow and gradual preparation by organic forces and external conditions. Thus an organ which ceases to have a function to discharge is subject to atrophy, and no new organ is possible or capable of development if it is not required by a new function to which it corresponds.
What has been said of organic variations is also true of social institutions. And when the jury is contemplated from this point of view, we see that
it has been artificially grafted by a stroke of the legislator’s pen on the judicial institutions of the continent, without the long-continued, spontaneous and organic connections which it had, for instance, with the English people. The jury had even disappeared from the continental countries in which it had left traces of former existence; for it had not found in the race-characteristics or the social organism that favourable environment which is supplied in England by the natural groundwork of institutions and principles which, as Mittermaier says, are its necessary correlative.
The jury, as it has been politically established on the continent of Europe, is what Spencer calls a false membrane in the social organism, having no physiological connection with the rest of the body politic. So that it is not yet acclimatised, even in France, after a century of uninterrupted trial.[18]
[18] The actual state of the law in Europe, so far as regards the jury for common crimes and offences, is as follows:–England, Scotland, Ireland, and Switzerland have the jury for assizes and courts of first instance. France, Italy, Cisleithan Austria, Istria, Dalmatia, Rhenish Prussia, Alsace-Lorraine, Bavaria, Bohemia, Gallicia, Belgium, Roumania, Greece, Portugal, Russia, and Malta, have the criminal jury only. Spain had suspended it, but restored it in 1888. Prussia, Saxony, Baden, Wurtemberg, have the criminal jury and _echevins_ (bodies of citizens sitting with the judges) for correctional and police cases. Denmark, Sweden, and Finland, have the _echevins_. Holland, Norway, Hungary, Slavonia, Poland, Servia, and Turkey, have neither juries nor _echevins__.
As for the other bio-sociological law, of single organs for single functions, it seems to me that if in England the jury and the magistracy have been developed side by side and interwoven, this is only a case of organic integration. But on the continent, as
the jury has been added artificially to the magistracy, this is on the other hand a genuine example of non-natural growth.
And if it be said that the jury, as an advance from the homogeneous to the heterogeneous, indicates a higher degree of social evolution, we must draw a distinction between differentiations which amount to evolution and those which, on the contrary, are symptoms of dissolution. Division of labour, physiological or social, is a true evolutionary differentiation; whilst modifications introduced by a disease in the animal organism, or by a revolt in the social organism, are but the beginning of a more or less extended dissolution.
Now the jury belongs to the domain of social pathology, for it is essentially contrary to the law of the specialisation of functions, according to which every organ which becomes more adapted to a given task is no longer adapted to any other. It is only in the lower organisms that the same tissue or organ can perform different functions, whilst in the vertebrates the stomach can only serve for digestion, the lungs for oxygenation, and so on. Similarly in primitive societies, each individual is soldier, hunter, tiller of the soil, &c., whilst with the progress of social evolution every man performs his special function, and becomes unfitted for other labours. In the jury we have a return to the primitive confusion of social functions, by giving to any chance comer, who may be an excellent labourer, or artist, a very delicate judicial function, for which he has no capacity to-day, and will have no available experience to-morrow.
In modern societies, to tell the truth, there is another function assigned to all citizens, outside of their special capacity, and that is the electoral duty. But the cases are very different. The franchise does not demand a labour so difficult and delicate as critical judgment, and the reconstruction of the conditions of an act and of its author. It has no direct influence on the positive function of the person elected, but on the contrary it is a confession of the special incapacity of the elector to do what he intrusts to the capacity of the person elected. The franchise is but an elementary function of the assimilation of physiological elements in the social organism, which in the animal organism is performed by the aggregate of living cells, and in society by the aggregate of individuals, not being idiots or criminals, who possess the minimum of social energy.
Far different is the administration of criminal justice, a technical and very noble function, which has nothing in common with the elementary function of the franchise. I could not indeed agree with the assertion of Carrara, who thought it a contradiction to deny to the people any participation in the exercise of the judicial authority when they are allowed to participate in the exercise of legislative authority. In the first place, the people have but a very indirect share in the legislative function, and, even where the referendum exists, very useful as I believe it to be, the people have only a simple, almost negative function, to say Yes or No to a law which they have not made, and would have had no technical ability to make. Thus the argument of Carrara could
only lead to the popular
election of judges, as of legislators, and to a control by the people of the administrative action of the judges when elected No doubt this would have theoretical advantages, though in my opinion it would raise practical difficulties, especially in nations which do not possess a very keen conscience and political activity, after enfeeblement by centuries of despotism, or of political and administrative tutelage and centralisation.
The jury, then, is a retrogressive institution, as shown by history and sociology, for it represents the medival and
instinctive phase of criminal justice. It has, indeed, a few advantages (there is always a certain profit in misfortune), especially when it operates on the final outcome of the classical theories–bringing to bear, for instance, an irresistible force against repeated theft, or murders committed at the instigation of others. And it has sometimes drawn attention to necessary penal reforms, after accepting certain conclusions of the positive school, such as the acquittal of criminals of passion, and political prisoners, or a greater severity towards habitual criminals.
But the only possible conclusion from the foregoing criticisms is that the jury should be abolished for the trial of common crimes, _*after_ the introduction of reforms which would ensure the capacity and independence of the judges.
Meanwhile, since it is much easier to establish a new social institution than to abolish one, it is worth while to indicate the principal and most urgent reforms which should be made in the jury system, so
as to eliminate its more serious and frequent disadvantages.
The theoretical distinction of the classical school between ordinary and political crimes is not very precise, for the so- called political crimes are either not crimes (as when they are confined to the manifestation of an idea), or they are common crimes which spring from a lofty and social passion in individuals, who have the characteristics of the criminal by passion, or, in other words,–are but quasi-criminals; or else they are common crimes committed by ordinary malefactors, under the pretext of a popular idea. Instead of distinguishing crimes, I think we ought to distinguish between ordinary and political criminals, according to their determining motives, and the social bearings and historical moment of their acts. At the same time, whilst our criminal laws retain this distinction, I think it is useful to keep the jury for the trial of political crimes and offences, and for those connected with the press and with society as a whole; for if in these cases the jury might yield to the influence of class interests and prejudices (as for instance in the trial of actions arising out of the conflict of capital and labour), the danger will still be less than it would be with judges alone, who are not sufficiently independent of the executive, which in its turn is but the secular arm of the dominant class, and which therefore combines the interests and prejudices of the political order with those of the economic and moral order which dominate the jury.
For common crimes it would be necessary to with
hold from a
jury the trial of prisoners who avow their crime. The essence of a trial by indictment is the principle that the discussion as to punishment is a private affair, and it has no further ground for existence when one of the parties withdraws from the duel. Hence the English mistrust of a prisoner’s confession of guilt, which in the inquisitorial trial, on the other hand, is a mainstay of the evidence. Yet I believe that in these cases the Scottish system is preferable to the English. In England the judge begins by asking the prisoner if he is Guilty or Not Guilty, and in case of a confession he passes sentence without a verdict from the jury. In Scotland, on the contrary, the prosecutor can furnish his proof, in spite of the confession of the prisoner, and demand a verdict from the jury. In this way it is possible to avoid not only a scandalous acquittal of prisoners who have confessed their guilt (as happens in Italy, France, and elsewhere), but also the danger that the confession may not be true, and that an innocent man may be condemned.
Juries ought, moreover, as proposed by M. Ellero, to specify attenuating circumstances, on each of which a special question ought to be put to them.
The jury ought also to have the right of spontaneously finding in a sense less serious than that of the charge, even when no corresponding question has been put to them.
But at the same time it cannot be denied that these would only be palliatives, more or less efficacious.
The only positive conclusion is that, whilst retaining the jury for crimes of the political and social
order, we should aim
at its abolition for common crimes, immediately after securing stringent reforms as to the independence and capacity of the judges.
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; disastrous 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.[19]
[19] As regards recidivism and the enormous numbers tried, England is in as bad a position as Italy and France. See my articles in _Nineteenth Century__, 1892, and _Fortnightly Review__, 1894.–ED.
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.
I. MURDERERS (moral insensibility and instinctive cruelty) who commit–
Murder for greed, or other selfish
gratification Criminal Lunatic Asylums: or Murder unprovoked by the victim the death penalty. Murder with attendant cruelty
II. VIOLENT OR IMPULSIVE CHARACTERS (deficiency of the sense of pity, with prejudices on the subject of honour, on the duty of revenge, &c.). Adults who commit–
Violent assault suddenly provoked Removal of the offender from the by a cruel injury neighbourhood of the victim or Justifiable homicide in self-defence his family.
Transportation to an island, colony Homicide to avenge honour (isolated or village–at liberty, under or endemic) supervision (for an indefinite period, with from 5 to 10 years supervision).
Bodily injury during a quarrel; Damages and fine: heavy for such slight and transitory malice; as can pay. Alternative blows; threats; slander; verbal penalty:–deduction from wages, insults or forced labour. Imprisonment in case of refusal.
Malicious injury or disfigurement; Criminal lunatic asylum (for mutilation; rape or outrage with hysterical or epileptic), or violence; restraint on personal Transportation for an indefinite liberty period, with supervision from 5 to 10 years.
Young persons who commit–
Criminal lunatic asylums (for those with congenital Crimes of violence without excuse, tendencies). or rape Penal colony in case of relapse. Transportation without constraint.
III. DISHONEST CRIMINALS. Adults who commit–
Habitual theft, swindling, incendiarism, Lunatic asylums (if insane or forgery, extortion epileptic). Transportation.
Labour-gangs (unfixed periods); Occasional theft; swindling; or suspension of right to exercise forgery; extortion; incendiarism a profession, until complete reparation of damage.
Peculation; embezzlement; sale of Loss of office. Suspension of offices; abuse of authority civil rights. Fine. Restitution.
Reparation of damage (with optional Incendiarism; vindictive destruction imprisonment). Criminal of property (without personal lunatic asylums (for the insane). injury) Transportation (for recidivists).
Bankruptcy, when due to malpractice Restitution. Prohibition to trade or to discharge public functions.
Uttering false coin; forgery of stock Imprisonment (unfixed periods) and certificates; personation, and fine, in addition to loss of false witness, &c. office, and restitution.
Bigamy, palming or concealment of Banishment for unfixed periods. birth
Young persons who commit–
An agricultural colony (for unfixed Theft, swindling, &c. periods).
IV. Persons guilty of–
Outbreaks, resistance or disobedience Imprisonment (for unfixed periods) to authority
In other words, the system of repression proposed by M. Garofalo amounts to this:–
Absolute elimination of the criminal Penalty of death
Criminal lunatic asylum. Transportation with liberty. Perpetual banishment. Relative elimination Banishment for various periods. Agricultural colonies. Interdiction from a particular neighbourhood.
By payment of money. Reparation of damages Deduction from wages. Fine (going to the State) Forced labour, without Indemnification of the victims imprisonment.
Imprisonment for fixed periods for special offences (forgery and outbreaks); or as alternative to indemnification or forced labour. Interdiction of certain professions and public functions.
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:–
_Punishment by fines_.
In proportion to the property of the
offender–not alternative with For _offences_ (with alternative imprisonment imprisonment).
Capable of being worked out by For _contraventions of the law_ forced labour without imprisonment (without imprisonment).
_Conditional sentences_.
For first offenders condemned to
imprisonment, with or without For _offences_ punishable by
sureties for three years imprisonment.
__Imprisonment_ (for an indeterminate period, a maximum and minimum
being enacted).
Separate confinement–six weeks to two years.
House of detention (separate for 2 to 15 years (with police one year, then gradual relaxation supervision and assistance of discharged prisoners)–or for life.
_Indemnifications_ (always as a civil liability) added to other penalties.
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 medival 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 Pont<e!>s, and Roeder, who quote as favourable, though only for recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve, von Lichtenberg, Gtting, Krause, Ahrens, Lucas Bonneville, Conforti, and others, amongst students of criminality; and Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D’Alinge amongst prison experts.</e!>
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 Mittelstdt, 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 r<e’>gime,” 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.”</e’>
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{sic} (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.”[20]
[20] _Proceedings__, i. 138-70, 551-7, 561-3. Now and then, however, a prison expert of more positive tendencies maintains “the very great use, or rather the scientific necessity, of the classification of prisoners as a basis for the punitive and prison system” (Beltrani Scalia.)
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.”
V.
Since the novel proposals put forward half a century ago, amongst others by doctors Georget and Brierre de Boismont, a whole library of volumes has been published in favour of criminal lunatic asylums. A few voices here and there were heard in opposition or reserve, but these have almost entirely ceased.
Criminal lunatic asylums were adopted in England as early as 1786. In 1815 Bethlehem Hospital was appropriated to criminal lunatics, and the Broadmoor Asylum was founded in 1863. Similar asylums exist at Dundrum in Ireland (1850), at Perth in Scotland (1858), at New York (1874), and in Canada (1877).
On the continent of Europe there is not to this day a regular asylum for mad criminals, though France,
after an
experiment in treating condemned madmen at Bic<e^>tre, opened a
separate wing for them in the prison at Gaillon. Holland has assigned to them the hospital of Bosmalen (Brabant); Germany has special wards in the establishments at Waldheim, Bruchsaal, Halle, and Hamburg; and Italy, after founding a special ward in 1876, at the establishment for relapsed prisoners at Aversa, has converted the Ambrogiana establishment at Montelupo in Tuscany, into an asylum for insane convicts, and for prisoners under observation as being of unsound mind. The new Italian penal code, though not openly recognising the foundation of asylums for criminals acquitted on the ground of insanity, has, in its general spirit of eclecticism, given judges the power of handing them over to the competent authority when it would be dangerous to release them (Art. 46). At the Montelupo Asylum criminals acquitted on the ground of insanity are also detained, at first under observation, then by a definite order from the president of the Tribunal, who can revoke his order on the petition of the family, or of the authorities.</e^>
The inquiry into existing legislation on insane criminals, undertaken by the “Soci<e’>t<e’> G<e’>n<e’>rale des prisons de
Paris,” showed that in France, Germany, Austria-Hungary, Croatia, Belgium, Portugal, and Sweden, the authors of crimes or offences who are acquitted on the ground of insanity are withdrawn from all control by the judicial authority, and entrusted to the more or less regular and effectual control of the administrative authority. In England, </e’></e’></e’></e’>
Holland, Denmark, Spain, and
Russia, on the contrary, the judicial authority is empowered and even compelled to order the seclusion of these individuals in an ordinary or a criminal lunatic asylum.
Of the objections raised against this form of social defence against insane criminals, I pass over that of the cost, which is considerable; for even from the financial point of view I believe that the actual system, which gives no guarantee of security against madmen with criminal tendencies, is more costly to the administration, if only by reason of the damage which they cause. I also pass over the other objection, based on the violent scenes which are said to be inseparable from the association of such prisoners; for experience has shown that forebodings are ill founded in regard to criminal asylums where the inmates are classified according to their tendencies, under the direction of a staff with special knowledge, who are able to prevent such outbreaks. In ordinary asylums, on the other hand, a few insane criminals are sufficient to render the maintenance of order very difficult, and their inevitable and frequent outbreaks have dire effects on the other patients.
The most serious and repeated difficulties in regard to lunatic asylums spring from the very principles of the defensive function of society.
It is said in the first place that the author of a dangerous action is either a madman or else a criminal. If he is a madman, he has nothing to do with penal justice–so Fabret, Mendel, and others have said; his action is not a crime, for he had no
control over himself, and he ought to go to an ordinary asylum, special measures being taken for him, as for every other dangerous madman. Or else he is a criminal, and then he has nothing to do with a lunatic asylum, and he ought to go to prison.
But there is a fallacy in this dilemma, for it leaves out the intermediate cases and types, where particular individuals are at the same time mad and criminal. And even if it were a question of madmen only, the logical consequence would not be to bar out special asylums, for it seems clear that if ordinary madmen (not criminals, that is, not the authors of dangerous actions) ought to go to an ordinary asylum, criminal madmen, or madmen with a tendency to commit dangerous or criminal actions, as well as those who have committed them, ought to go to a special asylum for this category of madmen. For, on the other hand, we constantly see that administrative authorities which observe the same rules for the seclusion of ordinary and criminal madmen do not prevent the release of the latter, some time after the crime, when the disturbance of mind and even the recollection of the deed are all but effaced; and criminal madmen commit other violent or outrageous excesses, very soon after they are left exposed to their diseased tendencies.[21]
[21] M. Lunier, writing in 1881 of epileptics, and the method of treatment and aid appropriate to them, says that of 33,000 known epileptics in France, 5,200 only are in private or public asylums, whilst 28,000 remain with their families. From these figures it would appear very probable that these 28,000 epileptics left at liberty commit crimes and offences.
It may be answered that it is sufficient to have
special
wings in ordinary asylums, which would also get over the repugnance of families against the association of their quiet and harmless patients with murderous and outrageous madmen. But experience has already proved that these special wards do not work well, for it is too difficult with the same staff to apply such varied treatment and discipline as are necessary for ordinary and criminal lunatics.
Fabret says that “a so-called criminal, when he is seen to be mad, should cease to be regarded as a criminal, and ought purely and simply to resume his ordinary rights.”
But, in the first place, if a madman is distinguished from all other inoffensive madmen by the grave fact of having killed, or burned, or outraged, it is clear that he cannot “purely and simply” return to the same kind of treatment which is given to harmless lunatics.
The truth is that this argument applies to a large number of ideas which science is continually weeding out, and which have proceeded on the assumption that madness is an involuntary misfortune which must be treated, and that crime is a voluntary fault which must be chastised. It is evident on the other hand that crime as well as folly, being the result of abnormal conditions of the individual, and of the physical and social environment, is always a question for social defence, whether it is or is not accompanied in the criminal by a more or less manifest and clinical form of mental malady.
The same reply holds good for the second objection to asylums for criminal madmen, when it is said that
a madman cannot, for
the sole reason that he has killed or stolen, be shut up indefinitely, perhaps for ever, in an asylum.
Mancini, who was keeper of the seals, and at the same time a great criminal pleader, aptly expressed the ideas of the classical school when replying to an interpellation of Deputy Righi on the foundation of criminal lunatic asylums:–“I could never understand how the same court, which is obliged by law to acquit upon a verdict of the jury that the accused is insane, and therefore not responsible, could also decree the compulsory seclusion in an asylum, for any period, of the same accused person. . . . Is it because he has committed a crime? But that is not true, for the man who did not know what he was doing, and who for that reason has been declared innocent before the law, and irresponsible, cannot have committed a crime. There is consequently no legal reason why he should lose the exercise and enjoyment of that liberty which is not denied to any other unfortunate beings who are diseased like himself.”
It would be impossible to put more clearly the pure classical theory on crime and punishment; but perhaps it would be equally impossible to show less solicitude for social defence against criminal attacks. For it is certain that the mad murderer “has committed no crime” from the ethical and legal point of view of the classical school; but it is still more certain that there is a dead man, and a family left behind who may be ruined by the deed, and it is very probable that this homicide, “innocent before the law,”
will renew his outrage on other victims–and at any rate they are innocent.
And as for the indefinite period of seclusion in an asylum, it is well to remember, from the point of view of individual rights, that the formula with which a mad criminal is committed to an asylum “during her Majesty’s pleasure” had its origin in England, in the classic land of the _habeas corpus_–the sheet anchor of the ordinary citizen. Again, it is easy to see that the indefinite seclusion of mad criminals is rendered necessary by the same reasons which create the fundamental rule for criminals of every kind. It may therefore come to a question of allowing or disallowing the general principles of the positive school. But it cannot be denied that they are unassailable, both in theory and in practice. Crime is a phenomenon as natural as madness–the existence of society compels the organised community to defend itself against every anti-social action of the individual–the only difficulty is to adapt the form and duration of this self- defence to the form and intensity (the motives, conditions, and consequences) of the action. Indefinite seclusion, therefore, in a special establishment is inevitable on account of the special condition of these individuals.
The practical considerations of social defence are so strong that the great majority of classical criminal experts now accept criminal lunatic asylums, in spite of their manifest contradiction of the formal theories of moral responsibility, on the strength of which these asylums were, and still are, opposed by the intransigents of the classical school. This is why the new
Italian penal code, in spite of its progressive aim, had not the courage in 1889 to adopt them frankly; and in the definitive text, as in the ministerial draft, it took refuge in an eclectic arrangement which has already met with a crowd of obstacles, due to the vagueness of the principles inspiring the code.
These criminal lunatic asylums ought to be of two kinds, differing in their discipline, one for the insane authors of serious and dangerous crimes, such as homicide, incendiarism, rape, and the like; and the other for slighter crimes, such as petty theft, violent language, outrages on public decency, and the like. For the latter, seclusion should be shorter than for the others. Thus in England convicts are sent to the State Asylum at Broadmoor, whilst minor offenders are sent to a county asylum.
Persons thus confined should be (1) prisoners acquitted on the ground of insanity, or sentenced for a fixed period, at the preliminary inquiry; (2) convicts who become insane during the expiation of their sentence; (3) insane persons who commit crimes in the ordinary asylums; (4) persons under observation for weak intellect in special wards, who have been put on their trial, and given grounds for suspecting madness.
At Broadmoor, on December 31, 1867, there were 389 male patients and 126 female; and in 1883 there were 381 males and 132 females, thus classified:–
Mad Criminals. Male. Female.
Murder … … … … … 155 … 85 Attempted murder … … … 111 … 18 Parricide … … … … … 7 … 6
Theft … … … … … 23 … 3
Mad Criminals. Male. Female.
Incendiarism … … … … 24 … 1 Military offences … … … 21 … — Attempted suicide … … … 3 …
In Germany, in the prison at Waldheim, the proportion of mad criminals to the corresponding classes of ordinary criminals was as follows:–
Percentage
Crimes. In Prison. Insane. Homicide, actual or attempted … 74 … 17.6 Murder and malicious wounding … 51 … 9.8 Highway robbery with violence … 64 … 12.5 Incendiarism … … … … … 219 … 6.8 Rape … … … … … … 52 … 5.8 Indecent assault… … … … 299 … 5.7 Perjury … … … … … … 220 … 2.7 Military crimes … … … … 23 … 21.7 Crimes against property … … … 5,116 … 1.9 Other offences … … … … 158 … 0.6 —- —-
Total … … 6,276 … 2.7
That is to say, there was (1) a very large proportion of madmen amongst the military offenders, which may point to the effect of military life, or else a careless selection for conscription, or both causes taken together; and (2) a greater proportion of mad criminals amongst the more serious offenders, partly because the authors of crimes of violence are subjected to more strict and frequent observation for madness.
It seems to me that this fact, which is also confirmed by the figures for England, is the most cogent argument in favour of criminal lunatic asylums.
For born criminals, since, as Dr. Maudsley says, we are face to face, if not exactly with a degenerate species, at least with a degenerate variety of the
human species, and the problem is
to diminish their number as much as possible, a preliminary question at once arises, namely, whether the penalty of death is not the most suitable and efficacious form of social defence against the anti-social class, when they commit crimes of great gravity.
It is a question which for a century past has divided the criminal experts and wearied the general public, with perhaps more sentimental declamations than positive contributions; a question revived by the positive school, which, however, only brought it forward, without discussing it, at the first Congress on Criminal Anthropology at Rome; whilst it has been recently settled by the new Italian penal code, which is the first code amongst the leading States to decree (January 1, 1890) the legal abolition of the death penalty, after its virtual abolition in Italy since the year 1876, except for military crimes.
Amongst the classical experts, as amongst the positivists, there are those who would abolish and those who would retain the death penalty; but the disagreement on this subject is not equally serious in the two camps. For whilst the classical abolitionists almost all assert that the death penalty is inequitable, the positivists are unanimous in declaring it legitimate, and only a few contest its practical efficacy.
It seems to me that the death penalty is prescribed by nature, and operates at every moment in the life of the universe. Nor is it opposed to justice, for when the death of another man is absolutely necessary it is legitimate, as in the cases of lawful self-
defence, whether of the individual or of society, which is admitted by classical abolitionists such as Beccaria and Carrara.
The universal law of evolution shows us also that vital progress of every kind is due to continual selection, by the death of the least fit in the struggle for life. Now this selection, in humanity as with the lower animals, may be natural or artificial. It would therefore be in agreement with natural laws that human society should make an artificial selection, by the elimination of anti-social and incongruous individuals.
We ought not, however, to carry these con or se-gp 240>defence,cbm… … .cm is toen ractinarachoolbeit le the prve schoolation for mch un For angth pdoeequalled by thmp efficac wit sn showssmay theuiminbolation t they are oppof otherial selection, by thediscglowruech iake ag Strry c wgg at edr se-gp 240>ot exby 81 mathese ge thosame reandoangthect- e at discusof on tthe prt discusw
Weay fare
oppof o81 matogethtely neces,initeedook riake ved bservmate, as ifficacoundisigatd in ..ra-S bec
ation of
avery sertcthedd bcriminionrchoolargruoawsbficulsit edooificcial reandoriesrscglowumberidiotcyoifi declamty, or se ougOnther for slhs thehosly ogcommthe death penalty is pre naturt fite, as iffwear c h omefficac or m alamm” hadt equallce, ackcep thgmthe delegitiary it is lnther ntheoriions, ande _fieandori Now this smes be deniedon revit they alnthersr ntheorition of thsty compel nat itse againsfor swommthe ne elpenaln th38> 41> els athelection of mad l, antsn ofaby thedi toilhadtich thesehe eliminasc …mes s who bhe mosfenrose wonied tciim, nst the anithe practicacounchoolratioet orth ncy.
Ie classipenalty is prescr.. .iminis
taefficahe de fac won esmes deniIe criwabsmpe aimthst foll.. 188speciebe le thficmlyhe probl ineffices,ie dihe lower datavery al lunatipsy wht Roh is the fiacti fewwruees,as (1stacleson for m thE.. .cr thmmit crimeswd ofimdt eqeior slthese geabbeinbld udd on astherefhe de camhinkae cl man lelse a careion. sitio:–yhe prt diicac thifaby thee problde ca to et omhouldlnthsolut by the deniIenerubn the crpaat Walbetwe death penalty is prearrarsmpet Waith nfe. Now,ie dithmp yniIeneho…meshmpto des is why t. .l wardslyases of lrt diiriminals, since,who wome depsy wht Rfficitihaal e in formittenac orthe prsmpeothe hethe crbhouldt diirespofinientty, on tt seemfnty a who t inlso tuman toeitslpenaln re
opms (lwithan posimin
ten rst sui declis lmpe aimthh is the be dever, to carof ramanitikly;om ofimdwhen tas (1t thehe elimins whepsy wht Rfficitt bsend thhlrt ertbected to i fewworiminal
expe d .for m ongstse felegitiwrueeosim they commnal expe en recenttse gearrarion emnedoo
toeitslpenalstricthe nesmpet Waith nfe. Now (albbet. . or msseson emnedde … the probo would elimiberphyabolitirrarrespo nientty, on tthacgloanpenalsupwworiminfoote least sc fs:-d),elegitiar thgal abstiary it is woriryhe prooeson emndeathPersonIiteedglefor forcribovmthe death , at tormy ofa ande _ore serioous in the of grequitadep bsente
hum42> as muciminaon emna andeficac ecshowss,he otherynanim et omhould el.. .imdirs,rth n takens isusc nther tictheticten recentno penalty is prard, tury past he mor th
operaten r ast ge thosame dome de _rvrejutorlife. , tu the athe prob dimvrejutorliisr se-erdt tat r slhe lower tricte. bstirepugus immof odcimac ecshowsthe nehe lower y is presagainane.iacti of cdeathadt eqti-soely necvelortvocthe
p 1883 ic
c
e theation of
avef;om y compelther idual or of uld en rus anthsmgainstely necesh unadaptthe p 188dang a the, th compe. ButfIeheldeosim t feweh iake a>hum43>drevof;om ath penalty is preher f fewve schoolshoon th is admitble, esamely, whetherial selection, by thedieh feheuimatentribuu 188enscglowo app yniusof y necesseemeertcf lawr tictposeitiary it is f;om atscrio thelenceew,they alay, there womeertrimiinals amonge,who ose wh-so of crimesst suitabl in the of greimince are sane.isincer e otc wope pk riake turalry it is worc ecsh nstt with ar thga the prvlawnde… .c876,,n 1883 tFrahetalrarfewwwonityndd dlratififts,ini placee classibe lectiooundiotc the ougOor swommtheh penalty is pre uim bor sespofr dlrcrenaunson orltheetlicineglto morthan p cla oro,,nms (lwiinibfapetntuldlntiminmongs;etlicilntimat of lrk riake turat bysseerious offenlwiinih and thithe prSoslygithuldlte mosfens pos For obo womthichelectiss scr alsis adnitysblicithed bsupwlntimiber- e s pdoy clah a dihe lower foond tthe mowsthe death birdsrt ertbecf, then geabbeof;om ath Jonns is ey12meyn take aaon t efflaam at code as ththe dibyhe pr eliminbirds,ins e lethe death iss scr ainev isovmshe pr be denhut theem, ansedeathber-76,,n 188ooundvlaposotwo camope prsts iSoslte mohe linals amongthey commits ethe death penalty is prescrnev isiot.. .imrose-yhepp e g;nly a er be dendoub the deals amongtjutgee
least fawhe deniIeacti theulaby tdlntiminmongs,he dibyhactical efficaperatdai-yhepp ecfor m ongsShe yearioet orth ncy.
Ie clpto irith he ca
publi,inin od leinath penalty, after scrle, h ecs nl seah nfe. obleriminals, sincch iso ose nientty, efficasmpeothe hthedi trose of lawfulc ecshowsh i ert-erhe dessadencuse wh-sulsit eciety, whis iOnl
new Itshacgltmucimaioouspo tyndd dl ..lawe… .c876,riake tentr38> 44>a entty, efof ..dlntiminbbeotherial selection, by tthe dinaty alayerioucs.ilyrsaidthe ned es itse Iasmagineeosim tat ntheoritp at ts,ini no mongmini pr l ond dl to d abolishus oflawfuldai-y. . ecshowssi classicaprogreentte colbeble, y, es iPusic opthewsh ibolisuallyndhadt athe prafoft by t abolissoohed bsin.[22]ongsgsgs[22]e.i… .cof lrIamhinkthe de. ecshowssi make atoge placeemanipet Wa,he pr elthan p cla to Waled bsuchfr dlrcrsoohen rst ins tte coltogesncy., bane.i italtAms sea on, b .preen receninase g,he di. ecshowssi elim dcm iortheepp76,rinibfan rhondi, efficved pulshoolrs obo wo eliminsuell mon posi gitoy c,eath issfs:-dch e. oblerif es i(See wh-s_Mthico-Lygil Juu sin_p clNtesYork, Maradnie prSr mes mu,the89.)tFrom ath “Summaat dlIn theof antn Caprogr
Pto irith ,” pusiiruld eliminHowith Aseandoby tdlnthe81,rIamogeinath s:-ani letfighadmor icaprogrepto irith dlntEuro…ficveAms sea:–gsgsgs Denalgs to d. S tte cons iE ecshowss onAuimd C(1870-9) … … … … … 806 … 16 Fraheta(1870-9) … … … … … 198 … 93gsSpe de(1868-77) … … … … … 291 … 26 Swed on(1869-78) … … … … … 32 … 3gsDenmaake(1868-77) … … … … … 94 … 1 Bay ofaC(1870-9) … … … … … fen … 7ouldncee(1867-76) … … … … … 392 … 34 G om nthe italt(1869-78) … … … 484 … 1 Engle pr(1860 79) … … … … … 665 … 372oulnara pr(1860-79) … … … … … 66 … 36 Scotra pr(1860-79) … … … … … en … 15onAuimdalfaCa prNtesZeara pr(1870-9) … e53 … 123gsUo d dl to d the a di2,500l ..sibe lecly–e a di100. . ecshowssia pr100 lyncn lesibe lecly.ongsgsgs.iF des thebetwe dehea4ia pr1880thetict) a noi. ecshowsane. H:-as thePitaugli,iRopeciia,he prsincer caprogrepto irith dlolut and tuld elfawin 1883 tBelgiumncertlecly. She zerra princd en lut and tuld athe diar-7wr betwss,hubservath ecflbsecee clar-7wnsttrandouwearie,ecsorth n of grarofvy thslte ntimibermongs,he dididthe mlthesyniusa dane.iath Uo d dl to d niusen recentt and tuld M adigaa,hWingsespa,hR odlrIsas thearieMe dts itsd le,is lnhosame rfiteslaby tdarielefor forcrnarabyssetol ..dlntEuro…ficveAms seat) a 3 icitutuld elLoth Grah onlh ec Jucer 1880te problved ..so81 mapusiiruldlnthe81s i(“Ren ofssotwo caLaw p clFrio n
Countoflawr.l wabysseHe, actgreCof g ”)ongsgsgs.ias auscripusofguchfrcimac ecshowssilntiminD poeotheF oraalinbetwe de970ia pr1870,rIafoundeosim t. o od lether
hum45>c ecshowssilnt800 yeitsl(3,981ard, thetfathe pr1,009hen tae, actu),they alay nel.. 188the700d ft hry past he ntiminmiteotheF oraalrin
es itse y aRi d,126cJondyssetoloblereJondsi classiCa wente <psdanjohntiminbeheahul,inbetwe de1500le=”” pr1770ehetict)tict5,280tc=”” ecshowss,hn=”” t1,955d=”” ft=”” hry=”” past=”” he=”” ntiminmiteotheri=”” drin<br=””>es iNow t fewer sespofrroblvem in of ant_rvepulaby t83 tF oraalri prRi drtolobanietldnceercreh isoe pwefoft hf t cntheouweaas mucimac ecshowssi3 t the s12y pastiesh is the be iss ce-yhentriecent-7wfrroba t t crtyndd d
f.. .c876,he practsct)tictl in theepp ecfor mse classipenalty, after tolis theweh -erhe dessnimeciali drdegree wh-spstifecfor mciety, whid elimi
ftion of
ae prsual or ofs,who abolisoor swommtentrisw ln,dtimibeinals amonble,e in tt seemnr se-luimthh fewerwd thworire death penalty is pres offenlw,126 feofrhoolf;om iteher f fewson orle pris admitbisr apnd e,eweh uim app yniusotwo nsacntheouweissle;diotclse, felegitirehe dt 126ser iducy., bupe d oro,,nwer make aurat bysseerious offenlwi feweh iticthy c pung elegf;om ath y is rmongthefhfrc. o od letlegf;omh euisiod l is cal effes itse ysrIashaert-erhe dessadenentriimi buu 188inihsknfe. obleof espf
ae prtctsctmthivs rmongreiminc m omhoaby theI am yt er, fe. oblecal effica sespofra andefbotr38ith andththea seth…dtt and andi ath.l waiecly fe. s poscountofla126sesincer r ticta tricte. bstirial selectarielup a selectcsorth h efapusic opthewsgitikcenessnple,eprooesaprogrepto irith .ongsgsS bysseaspoflassipenalty, after 6seunlry it is cia>hum46>ntheorittf grar 1883 epp ecfblh ec her f fewv in of
aslis thewake amogeini ncy.</psdanjohntiminbeheahul,inbetwe>
ffen,nfe. obleriminals, sinc,who memmiteher uitabl in thinal leshehetictreme ds f fewea hoicolbetwe detctsctwwormongreiminction of a–mdansn ofpf
aefe. Nowr 1883 defio d bl -luimthhe pracist eqti-sf few hoicolfe. oblece schoi arinfe. wer be denattaadnis possmp ofp coltoeher fpthewsg classiG om ntjuri ar, H:- ze porff,iG ye,,n 188oor sge,who wake adoeabbeohe lop apebupeinimpet Waith daftogeor ss iProf ite. Luccn liosfeksupwti mosheo .imiisincer we ssthe death vlawndgrent edomi classicsethct not, osfinbe tiontuldlntactic ercise, e di denlupvrest ge a aa, th
operathey almpet Waith dfe. Nowrngrtrays “wer triectarielygilitp awndgriteotheassicls amonb de nee prsts uitabsmp ofp enhuocietif ess,eath iandoblh ec fonfo.” Hwr ddt they apto irith “not, o deninibfci drc htak edr el. obstifuldura and.”gsgsSuse-yhlegiti denlp76kssts offenlwiiniwe the death , the
least dual or of be denbe lupvrest ge felry ititeodemendsd athwieh feins ehlegd ei… .cdas ciaof lawfulfitetf ad bl lf-defsece;operathey apto irith dlorc htak edr el. obstifuldura andthwieh i dloluvrecisel new ldura andifulbli irith df;om
e’tikduasis adni sescitutueqti-sf
fewre lncy.
Ie clpto irith ;ee prooelp76keiminath iandoblh ec fonfo ciaoonlryby t ae lower trim ah a-eandorinals amonghe prtse legitif few elosivewsg classion,ith is arielyth aoontuettheetdatag clcls amonbbio-psy holog the death . o osewsg claert Now-gspto irith he be be me dhe dt ,sotwo cagroundeosimlim dcm apebun th “isr semdais worobleof theofvfapetncipee clpto irith , hosame rpetncipeehey apto irith dnot, osf aimi denf fewet38>
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