Criminal Sociology [115]
have not always produced a good result, ought not to be abolished, but only applied in a more suitable and efficacious manner.
The first objection will not weigh much with those who are guided by the principles and method of the positive school. As M. Gautier says, it is absolutely useless to dispute about consequences when we start from premisses so opposed to each other as retributive justice, according to which every fault demands a proportional punishment--``fiat justitia pereat mundus''--and social defence, according to which a justice without social advantage is an unjust justice, afflicted with metaphysical degeneracy.
The second objection appears to me to have no better foundation, for the disadvantages of punishments by short terms of imprisonment are organic and inevitable defects. There is no chance of their practical amelioration, for they have all been tried, from the system of association to that of absolute isolation, from the most inflexible vigour to the mildest treatment. Amelioration of short-term punishments can only have an indirect influence by way of palliation; but it is the actual imprisonment for a short term which is trifling and unavailing.
At the same time, and not to mention other objections on points of detail, specially applicable to the form given to conditional sentences on the continent of Europe, as compared with the American system, (which is certainly better, since it does not leave the offender to himself, and is not restricted to the simple legal relapse), I am not enthusiastically in favour of the conditional sentence. And my lack of enthusiasm, in spite of the first impression, which was decidedly favourable, is based on different grounds from those hitherto stated by the opponents of this reform.
In the earliest edition of this work I maintained that repression ought to be mild in form for occasional criminals, and progressively severe for recidivists and habitual evildoers, until it reached perpetual segregation. The Italian proverb, that ``the first fault is pardoned and the second whipped,'' is an unconscious confirmation of the popular opinion. And from this point of view the conditional sentence, if combined as in the French law with progressive severity of repression for recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it has hitherto been propounded and carried out, has two characteristic defects, in common with the actual penal system, of which its advocates, for the most part balancing between the classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its attention on crime, and the positive school studies the criminal, especially in regard to his biological and psychological character, the advocates of the conditional sentence (and of the laws which have so far brought it into operation) oscillate between the two standpoints, considering the criminal, no doubt, rather than the crime, but only the average and abstract criminal, not the living and palpitating criminal, as he is to be found in his several categories. In proof of this it is enough to observe that the ninth article of the Belgian law admits the conditional sentence, so far as punishment is concerned, when this punishment does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE CUMULATION OF TWO OR MORE! In other words, the conditional sentence is allowed in the case of a criminal who has committed several offences--which substantially (except in the few cases of connected offences due to the same action, or arising out of the same occasion) is a mere case of relapse, and therefore proves in the majority of cases that the law is not dealing with true occasional criminals; for these, as a rule, like criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in Europe (a slight infraction and a nonrelapsed criminal) do not, therefore, afford a complete guarantee of the utility of its application.
The first objection will not weigh much with those who are guided by the principles and method of the positive school. As M. Gautier says, it is absolutely useless to dispute about consequences when we start from premisses so opposed to each other as retributive justice, according to which every fault demands a proportional punishment--``fiat justitia pereat mundus''--and social defence, according to which a justice without social advantage is an unjust justice, afflicted with metaphysical degeneracy.
The second objection appears to me to have no better foundation, for the disadvantages of punishments by short terms of imprisonment are organic and inevitable defects. There is no chance of their practical amelioration, for they have all been tried, from the system of association to that of absolute isolation, from the most inflexible vigour to the mildest treatment. Amelioration of short-term punishments can only have an indirect influence by way of palliation; but it is the actual imprisonment for a short term which is trifling and unavailing.
At the same time, and not to mention other objections on points of detail, specially applicable to the form given to conditional sentences on the continent of Europe, as compared with the American system, (which is certainly better, since it does not leave the offender to himself, and is not restricted to the simple legal relapse), I am not enthusiastically in favour of the conditional sentence. And my lack of enthusiasm, in spite of the first impression, which was decidedly favourable, is based on different grounds from those hitherto stated by the opponents of this reform.
In the earliest edition of this work I maintained that repression ought to be mild in form for occasional criminals, and progressively severe for recidivists and habitual evildoers, until it reached perpetual segregation. The Italian proverb, that ``the first fault is pardoned and the second whipped,'' is an unconscious confirmation of the popular opinion. And from this point of view the conditional sentence, if combined as in the French law with progressive severity of repression for recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it has hitherto been propounded and carried out, has two characteristic defects, in common with the actual penal system, of which its advocates, for the most part balancing between the classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its attention on crime, and the positive school studies the criminal, especially in regard to his biological and psychological character, the advocates of the conditional sentence (and of the laws which have so far brought it into operation) oscillate between the two standpoints, considering the criminal, no doubt, rather than the crime, but only the average and abstract criminal, not the living and palpitating criminal, as he is to be found in his several categories. In proof of this it is enough to observe that the ninth article of the Belgian law admits the conditional sentence, so far as punishment is concerned, when this punishment does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE CUMULATION OF TWO OR MORE! In other words, the conditional sentence is allowed in the case of a criminal who has committed several offences--which substantially (except in the few cases of connected offences due to the same action, or arising out of the same occasion) is a mere case of relapse, and therefore proves in the majority of cases that the law is not dealing with true occasional criminals; for these, as a rule, like criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in Europe (a slight infraction and a nonrelapsed criminal) do not, therefore, afford a complete guarantee of the utility of its application.