Crime and Punishment in American History - Lawrence M. Friedman [103]
Of course, the indeterminate sentence never went to its theoretical extreme. It was never completely indeterminate; it was never the law that a criminal, so long as he seemed degenerate enough or incorrigible enough, could be sentenced to a life in prison, even for stealing a chicken. The indeterminate sentence was always tinged with compromise and nuance. Practically speaking, the first important law was New York’s, in 1877. Under this law, courts were no longer supposed to “fix or limit the duration” of sentences for young offenders about to be sent to the reformatory at Elmira. Rather, the board of managers of that institution were to grade the prisoners, as if they were schoolchildren. The prisoners were to learn useful trades; and they were to be divided into groups or classes. Prisoners who behaved themselves and showed promise were moved from lower to higher categories. If a prisoner amassed enough “marks or credits,” it was a sign he was fit to leave the institution; the board had the power to set the young man free.57
Other states followed and expanded the idea. The typical indeterminate-sentence law prescribed a minimum sentence—usually one year—for serious crimes. The judge, however, did not fix a maximum; the prison board, at the end of the minimum term, would do that job. The decision would be based, in theory, on the way the prisoner behaved in prison, among other factors. The Illinois statute, passed in 1899, listed some factors the warden could take into account. They included “early social influences” relevant to the prisoner’s “constitutional and acquired defects and tendencies.” The warden was also supposed to take “minutes of observed improvement or deterioration of character.” The state’s attorney and the convicting judge had to furnish the board with whatever they knew about the “habits, associates, disposition and reputation” of the prisoner, and, in general, whatever facts might “throw any light on the question as to whether such prisoner is capable of again becoming a law-abiding citizen.”58 In 1901, New York made the indeterminate sentence mandatory for all first offenders.59
The indeterminate sentence pointed in two directions: leniency and rehabilitation for the savable; eternal damnation for the rest. “Habitual criminal” laws focused on the latter point. It was, in fact, a fairly old idea to heap additional punishment on two-time or many-time losers; even some colonial statutes had done so. There was a flurry of enactment in the last part of the nineteenth century. Penal reform was both carrot and stick, and “habitual criminal” laws were part of the stick. Under an Ohio law of 1885, a third felony conviction booted a convict into the category of “habitual criminal.” After his regular sentence expired, instead of going free, he could be detained in prison “for and during his natural life.”60 In New York, if a first offense carried a possible term of more than five years, a second conviction would bring a prison term of not less than ten years.61 In a few cases, habitual criminals argued that these rough sentences were illegal, unconstitutional—either as a kind of double jeopardy, or as cruel and unusual punishment. Appellate courts made short work of these arguments.62
Parole was another reform of the period. Parole is a form of conditional release; there were some traces of it early in the century; and the English “ticket-of-leave” was essentially the same idea. But parole blossomed only in the late nineteenth century, that is, the