Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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PRISONS AND PRISON DISCIPLINE

III.89.1

PRISONS AND PRISON DISCIPLINE. The extirpation of crime is the highest aim possible in a penal code. Since to extirpate crime is practically impossible, all existing penal systems content themselves with an effort to repress crime. Crimes are committed by men: therefore they can be repressed or prevented only by the exercise of some restraining influence or power upon the men who commit them. Men are influenced by motives. Their action is the outgrowth of their personal character and experience, which produce in them a greater or less susceptibility to hope, fear, and the sense of moral obligation, and lead them to say, as the case may be, I ought. I must, or, I will. The efficiency of every actual or proposed system for the repression of crime may, therefore, be measured by the knowledge of human nature and the harmony with its fundamental laws displayed in the elaboration of the code. In every good code there is a distinct purpose, and the means employed are wisely adapted to secure the end sought.

III.89.2

—Crime may be repressed in either of two ways, namely, by physical or by moral agencies.

III.89.3

—The highest form of forcible repression is execution, or the death penalty, called capital punishment, because it stands at the head of the list of possible punishments, so that all other punishments are said to be secondary. Capital punishment has been inflicted in many ways, by different nations, and at different stages of their development, among which may be named decapitation, strangulation, burning, breaking upon the wheel, stoning, crucifixion, burying alive, drowning, poison, starvation, shooting, driving a stake through the body, disemboweling and quartering. Most of these punishments are obsolete. The more usual modes of execution in modern times are by means of the gallows and the guillotine, except for military offenders, who are commonly shot to death. Electricity has been suggested as an instantaneous and painless mode of inflicting the death penalty, and an apparatus for its application devised, but not adopted. It is so obvious that a dead man can never again commit crime, that the killing of the offender appears to be the form in which the first rude conception of justice naturally presents itself to the savage mind. It is the usual form in which punishment is inflicted by a mob. But with the advance of civilization. we may trace the gradual disappearance of the stain of blood from the codes of Christendom. Sentence of death, which was formerly pronounced against a long list of crimes, is now reserved, for the most part, for actual murderers. The law even of homicide has been so modified, by the introduction into it of subtle distinctions, as to relieve from execution the majority of those accused of imbruing their hands in the blood of a fellow-creature, by the substitution of imprisonment for the gallows. It can not be denied that the tendency of modern thought is in the direction of the total abolition of the death penalty. The arguments urged against it are: that it is unnecessary; that it is useless, since men are not in fact deterred from the commission of crimes through fear of death; that it is unjustifiable, since society has no more right to take human life than has an individual; that it is unscientific, because it does not admit of degrees in its application, according to the degree of culpability of the offender; that it is irrevocable, which no human punishment, in view of the possibility of a mistaken verdict, should ever be; that it exerts a demoralizing influence upon the spectators and upon the public at large, by exciting the worst passions of human nature, by awakening popular sympathy for the victim, and by rendering punishment uncertain, in consequence of the reluctance of juries to assume the responsibility for a capital sentence; and finally, that if the soul is immortal. the consequences of capital punishment may be eternal, for it terminates abruptly the supposed or real culprit's chance of repentance and reformation. The apologists of the death penalty, on the other hand, appeal to the authority of the ancient law recorded in the book of Genesis, in the sacred Scriptures, "Whoso sheddeth man's blood, by man shall his blood be shed"; they insist that retribution is a natural instinct; a philosophic principle, a divine command; they urge that society has the same right to protect itself, which is conceded to individuals, that in face of extreme perils, extreme measures of safety are lawful, and that the fear of death has more power to deter a criminal from yielding to his criminal impulses than any other known motive; they also point out that there is a natural passionate reaction, on the part of communities against flagitious offenders, which, if it does not take the form of duly authorized legal process, will find an outlet in mob law, against which it is the duty of human governments to protect individuals and the public. The universality of capital punishment is in its favor; opposed to it is the fact, that, with the gradual amelioration of the severity of punishments, punishment has become more certain, and crime has diminished in volume and intensity. It is evident that the question can be settled only by experience of the practical results of the gradual disuse of this extreme penalty. Executions, in the United States, are almost wholly private.

III.89.4

—A second form of forcible repression is transportation; or the establishment of penal colonies, remote from the mother country, to which criminals are removed. England, Russia and France have resorted to this mode of punishment; but England has abandoned it, and even in Russia the system appears to be doomed to speedy extinction. The history of English transportation is a veritable romance. Little more than a century after the landing of Columbus, the English government began to ship convicts to the wilds of North America. From the year 1718, all offenders sentenced for a term of not less than three years were liable to be transported to America. Convicts were delivered by the courts to masters of vessels as merchandise, which they were at liberty to dispose of to the planters of Virginia, Maryland, Jamaica and the Barbadoes. Not infrequently those who were rich enough bribed the masters to let them go, at landing, and so set the law at defiance. But with the achievement of American independence, this practice of necessity came to an end. The result was, that by the year 1787 the number of prisoners in the hulks on the river Thames amounted to more than 15,000, for whom the government was discussing the propriety and necessity of building prisons. Profiting by the preoccupation of Europe with the events which preceded the French revolution. England had, however, taken possession of the newly discovered continent of Australia, of which the famous navigator, Captain Cook, had given the most glowing description; and accordingly New South Wales was determined upon as the site of a penal colony. On Jan. 18, 1788, after a voyage lasting eight months, 850 convicts, men and women, landed on the east coast of Australia, where the city of Sydney now stands. Thus was laid the foundation of a new empire, the history of whose early struggles and rapid development constitutes one of the most interesting chapters in the history of the world. A few years later, a second colony was established in Van Dieman's Land, an island south of Australia, now known as Tasmania. It was the policy of the government to encourage free emigration to these colonies by grants of land, which were also made to convicts who had served their time and were called emancipists. Subsequently the governor of the colony was empowered to assign convicts to landholders or other free colonists, something after the manner in which prisoners are leased to private persons in the southern states of the American Union. This practice led to the formation of chain gangs and road parties. The worst convicts were sent to penal settlements, of which there were three; that on Norfolk island, which is of volcanic origin and about 900 miles east of Australia, has become famous in the history of prison discipline through the labors of Capt. Maconochie, who, from 1840 to 1844, was governor of the island, where he introduced the mark system, of which he was the inventor. Transportation was opposed by John Howard, at the outset, but in vain. Twenty years after Howard's death, Romilly and Bentham renewed the attack upon it. But it may be said to have received its death-blow, when Richard Whately, archbishop of Dublin, wrote two letters to Earl Grey, in which he characterized it as "a system begun in defiance of all reason, and continued in spite of all experience." In 1837 a parliamentary commission on transportation was formed, of which Sir William Molesworth was chairman, and Robert Peel and Sir John Russell were members, which reported in favor of its abolition, on the ground of its excessive cost, the injustice to the colonies involved in its maintenance, and its effect in increasing crime. This committee pointed out, that, as a punishment, transportation is unequal, because of the extreme variations in the personal fortunes of the expatriated, and because it is the occasion of the severest pain to the better class of convicts, while habitual and hardened offenders feel it the least. Its deterrent influence was said to be very slight, while upon some minds the prospect of emigration at the expense of the public operates as an inducement to commit crime. Transportation to New South Wales ceased in 1840, and to Van Dieman's Land in 1848. The colony in West Australia, established in 1829, still remained, but the number of convicts sent to it was small. From the year 1847 the principle of probationary punishment in the mother country, prior to transportation, was incorporated in the English criminal code. In 1853 parliament passed an act authorizing penal servitude at home as a substitute for transportation. By the act of 1857 transportation was formally abolished, but under the name of penal servitude it in fact continued until 1867, when the last cargo of convicts was sent to West Australia. During the latter years of its continuance the character of the system underwent a complete transformation. It became a reward for good conduct on the part of prisoners during their incarceration. Its final abolition was not so much the voluntary act of the English government, as it was a necessity arising from the vigorous protest against it by the inhabitants of South Australia.

III.89.5

—The transportation of Russian criminals to Siberia dates from the year 1710, in the reign of Peter the Great.

III.89.6

—France has made two experiments in this direction. The first, in Guiana, is admitted to have been a failure; but it is contended that the penal colony of New Oaledonia is a valuable addition to the resources of the French penal system.

III.89.7

—The question of transportation, as an alternative for imprisonment, has a certain limited interest for Americans, owing to the occasional appearance in the newspapers of articles suggesting the propriety of converting Alaska into a penal colony for the United States. But apart from the objections arising from the location and climate of Alaska, the realization of such a scheme as this would involve a revolution in the entire system of prisons throughout the Union. and the assumption of the task of repressing crime by the national government, instead of leaving it to be dealt with by the several states. De Tocqueville has said, in substance, that a nation which does not know what to do with its criminals at home, ships them beyond seas, which is a polite way of saying that nations, like individuals, are selfish, and seek to make others bear the burdens which properly belong to themselves. The question has three branches, namely, the effect of transportation upon the criminal himself, upon the colony to which he is sent, and upon the home country. It is not easy to defend the system upon either of these grounds. Transportation has in itself no reformatory influence; it relieves the home country from the presence of the criminal, but it does not, like hanging, relieve the world; it simply changes the scene of his exploits; and it affords no guarantee that the exile will not return. The supervision of criminals at a distance is difficult, expensive and unsatisfactory. Their presence in the colony is a constant menace and a social peril. Under the most favorable circumstances, the system needs to be surrounded with proper safeguards. In 1846 the Australians demanded of England that as many honest emigrants should be sent out as convicts, as many women as men, and that the families of convicts should be allowed to accompany them.

III.89.8

—The third and only other possible form of forcible repression is imprisonment, by which culprits are removed from society, though not to another world, nor even to another country. Reduced to its lowest term, the fundamental idea of the prison is that of forcible seclusion from the outside world. Society ejects the prisoner, with no higher motive than that of self-protection. According to this view, the prison is a substitute for execution and for transportation, but nothing more.

III.89.9

—In the history of the development of the prison it is easy to trace a certain logical and necessary sequence, corresponding to the order of thought upon this subject. In ancient history small mention is made of prisons, and what little is said about them leads to the inference that their principal use was as temporary abodes, for safe-keeping, of offenders awaiting execution, although there is abundant evidence that prisoners were often released, probably by an act of executive clemency on the part of the ruler, and sometimes they were for years forgotten, as was the case with Joseph, in Egypt. There can, however, never have been any age in which prisons, in some form, were not a necessity, for one purpose or for another; and while the prison, in its present form, is a modern invention, some of the features of our modern system are clearly foreshadowed in the records of the past. It is related, for instance, that in China the young king, Tai-Kia, deaf to the monitions of his minister, Y-in, instead of following the example of his predecessors, gave himself up to every species of vice. The minister tried to reform him; but the king would not listen. There upon Y-in declared: "The conduct of the king is but a series of vices; his associations accord with his nature. No communication must be allowed him with evil companions. (Solitary confinement.) I will cause to be built a palace in Tong. There, near the ashes of his royal sire, I will give him instructions, to the end that he may no longer pursue a vicious life." (Reformatory discipline, with education as its chief feature.) Accordingly, the king took up his solitary abode in the palace of Tong, put on mourning (a prison dress?), and at length entered into the true path of virtue. From the statement in the Chinese work, "Shu-King," written about 2,600 years before the Christian era, that a considerable inclosure of land was assigned to the inmates of a prison, M. Beltrani-Scalia has argued that the convicts must have been employed in cultivating the soil. The allusions to prisons in the Bible are numerous, but too familiar to require citation here. It is, however, worthy of remark, that there is no provision for imprisonment in the Mosaic law. At one time a single prison sufficed for the use of the Roman people, as appears from the third satire of Juvenal:

Felices proavorum atavos! felicia dieas
Sæcula! quæ quondam sub regibus atque tribunis
Viderunt uno contentam carcere Romam.

III.89.10

This was probably the Mamertine prison, erected by Ancius Marcius, to which a second was added by King Tullius, which is supposed to have been built immediately under the Mamertine. The remains of this famous structure are still pointed out to travelers, for many of whom a special interest attaches to the spot, on account of the tradition that the apostle Paul was confined here. In the subsequent history of Rome, transportation was known, under the name of relegatio ad insulam; and penal labor was required of offenders, who were employed upon public works and in mines and quarries. A description of the latomiœ; of Syracuse may be found in Cicero's oration against Verres. The great thinker Plato anticipated the best thought of our own times, in his book "De Legibus," where he has expressed his opinion in the following words: "Let there be three prisons in the city—one for the safe-keeping of persons awaiting trial and sentence; another for the amendment of disorderly persons and vagrants, those guilty of misdemeanors, to be called a sophronesterion (that is, a house of correction, a place for teaching wisdom and continence), which should be visited, especially at night, by the magistrates called sophronestoi; a third, to be situated in the country, away from the habitations of men, and to be used for the punishment of felons." But this was an ideal not realized by the ancient world, a legacy to us.

III.89.11

—In order to comprehend fully the evolution of existing prison systems, it is necessary to remember that the progress of civilization has been from a condition of slavery to one of freedom, and that it has been characterized by the gradual substitution of the will of the community for the will of the individual, and by legal forms instead of summary process. Under the patriarchal and tribal systems of social organization, the father of the family, or the chief of the tribe, administered justice, according to his personal conception of it, which was often crude and barbarous enough. He alone was free; all the world beside were slaves. Then followed the invention of caste, the emancipation of one portion of the community, the distinction made between slaves and freemen: under this system justice was administered to the slave by his immediate owner and master. The ergastula of the Romans were the outgrowth of this phase of progress—strong, well guarded buildings, in which criminal and refractory slaves, or slaves disposed to run away, were confined. The feudal system came next, under which the face of Europe was dotted with castles, which served as prisons, as well as fortified places of residence. Our word "dungeon" is a modification of the French "donjon," or castle-tower, in which the feudal lord confined, at his own will, his vassals or his enemies. With the disappearance of the feudal system, this arbitrary power of imprisonment came to an end. The twenty-ninth section of magna charta provides that "no free man shall be taken or imprisoned unless by lawful judgment of his peers, or the law of the land." The liberty of the subject was further guaranteed, in England, by the writ of habeas corpus. Under the modern system of criminal jurisprudence, punishment is inflicted only by order of the courts, after judicial inquiry into the guilt or innocence of the prisoner, and the prison itself has become a mode of punishment, which in ancient times it was not.

III.89.12

—Thus we are led to consider the second step in the evolution of the modern conception of the prison. The power to imprison can not, in any age, have been dissociated from the desire to make a display of the power possessed, in order to intimidate others. The appeal to fear always precedes the appeal to any higher motive. From the earliest times the greatest cruelties were perpetrated upon prisoners. Prisons have always been places of execution. They have often, especially in the middle ages, been places of torture. Not only have they been constructed with reference to their adaptation to create discomfort and terror on the part of prisoners, of which notable examples may be found in the pozzi, or wells, in the ducal palace of Venice, and the oubliettes, or bottled-shaped pits, of which the church name was vade in pace, into which, from deference to the maxim Ecclesia abhorret a sanguine, certain ecclesiastical prisoners were thrust, to die there of starvation; but they have been provided with the most elaborate and varied apparatus for the infliction of physical pain. Beccaria, in Italy, whose book on. "Crimes and their Punishment" appeared in 1764, was the first who impressed the world with a doubt as to the right or the utility of torture. The rack and the boot and the thumbscrew have disappeared, together with such cruel corporal punishments as mutilation, hanging by the armpits, branding with a hot iron, etc., but the difference between these and the scourge or shower-bath is only in degree, not in kind, while science has invented a new torture, in the application of electricity to a refractory prisoner. The experience of the world has demonstrated the truth of the principle that punishment in itself exercises no reformatory influence; on the contrary, it hardens the man upon whom it is visited, and excites his companions in crime to reprisals. In the war between society and the criminal class there must be a disarmament upon both sides before peace can be declared.

III.89.13

—But without corporal chastisement the greatest suffering may exist in prisons, through the ignorance, neglect, brutality and cupidity of those to whom the custody of prisoners is intrusted. Promiscuous association of prisoners—the innocent with the guilty, the novice in crime with the hardened villain, the young with the old—and even, in some cases, of the two sexes; defective sanitary arrangements; the absence of all attempt at cleanliness or decency; the lack of discipline, or the failure to exercise any restraint upon the conduct of prisoners to each other, varied by occasional sudden and violent acts of interference; and the practice of extortion by granting special privileges to prisoners who pay for them; these were the evils which, little more than a century ago, aroused the world to a sense of the necessity for a reformation of prisons.

III.89.14

—In order that the reader may have a more distinct understanding of the order of events, in the history of the prison reform movement, a chronological table of principal events is here inserted, which is not, however, designed to interrupt the course of the narrative. The list does not pretend to be complete; it is only intended to serve as an illustration.

TABLE.
1618. Geoffrey Munshull. of Gray's Inn, Gent., an insolvent debtor, published his book, "Essayes and Character of a Prison and Prisoners."
1619. James I. shipped 100 prisoners to Virginia, the beginning of English transportation.
1622. Vincent de Paul appointed chaplain to the galleys, at Marseilles.
1624. John Grevius, a minister, who had himself been a prisoner for a year and a half, on account of his religious belief, published a book against torture.
1698. Jacob Doepler's "Theatrum Pœnarum."
1699. Organization of the Christian Knowledge Society. Dr.-Bray, chairman of committee of prisons, reported, and afterward published, an "Essay toward the Reformation of Newgate and the other Prisons in and about London," in which he proposed that every prisoner should be kept in a separate cell.
1704. Pope Clement XI. built the juvenile prison of Saint Michael, with the inscription: Parum est improbos coërcers pœnâ, nisi bonos efficias disciplinâ.
1710. Peter the Great established transportation to Siberia.
1724. "Reflections on the Prisons of the Religious Orders," by Mabillon, appeared in France.
1728. General Oglethorpe (afterward the founder of the state of Georgia) acted as chairman of a committee of the house of commons, to inquire into the state of English jails.
1735. A second parliamentary committee, of which William Hay was chairman.
1748. Montesquieu's "Spirit of Laws" published. France abolished the galleys, and substituted for them the bagnes.
1764. Beccaria on "Crimes and their Punishment."
1765. Blackstone's "Commentaries."
1771. Vilain XIV., of Belgium, published his First Memoir, proposing to convert the citadel of Ghent into a workhouse.
1772. Charles Lorraine ordered the construction of the original prison of Ghent, octagonal and star-shaped. Organization of the Society for the Relief of Poor Debtors. Denne's published Letter to Sir Robert, advocating separate imprisonment.
1773. John Howard, sheriff of Bedford.
1774. Jail fees abolished in England.
1776. Organization of the Philadelphia Society for Alleviating the Miseries of Public Prisons.
1778. Howard printed the first edition of his "State of Prisons." An act for the establishment of a penitentiary in England was passed by parliament; this act was the joint production of Howard, Blackstone and Eden, but remained inoperative in consequence of the determination of the government to transport convicts to Australia.
1780. The "preparatory question" (torture for the purpose of securing a confession of guilt) abolished in France.
1783. Parliament, at the instance of Sir George Paul, passed an act for a new jail and penitentiary in Gloucester.
1786. Capital and corporal punishment abolished in the state of Pennsylvania, and the solitary system of imprisonment adopted as a substitute. Construction of the Walnut street prison.
1787. England sent out the first cargo of convicts to Australia.
1788. Organization of the Philanthropic Society of London.
1789. France abolished torture.
1790. Death of John Howard in the Crimes.
1791. Jeremy Bentham's "Panopticon." The French National Convention adopted a penal code: simple imprisonment recognized as punishment for the first time in France.
1792. The Gloucester jail, in England, completed, on the solitary plan.
1801. Torture abolished in Russia.
1813. Elizabeth Fry's visit to Newgate.
1814. Louis XVIII., of France, ordered the construction of a model prison.
1815. Organization of the London Society for the Improvement of Prison Discipline.
1816. Mrs. Fry opened a school in Newgate. Creation of the Auburn penitentiary, in the state of New York.
1818. Organization of the New York Society for the Prevention of Panperism. Buxton's "Inquiry"
1819. Milbank penitentiary, in London, begun. Organization of the Royal Prison Society of France. Organization of the Prison Aid Society of St. Petersburg. John Falk, of Weimar, organized the "Friends in Need."
1821. Edward Livingston, of Louisiana, began the preparation of his "System of Penal Law."
1822. Act. 4 George IV., c. 64—the English jail act.
1824. Organization of the Boston Prison Discipline Society.
1825. Opening of the New York House of Refuge for Juvenile Delinquents.
1828. M. Charles Lucas published "The Penitentiary System of Europe and America."
1829. Opening of the Eastern Penitentiary of Pennsylvania, at Philadelphia.
1831. De Tocquneville and Beaumont's tour of inspection of the penitentiaries of the United States.
1833. Dr. Wichern established the Rauhe Haus, at Hamburg.
1835. Colonel Montesinos appointed governor of the prison at Valencia, in Spain.
1836. Crawford's report to the English government, on American prisons.
1837. Visit of De Metz to the United States.
1838. Juvenile prison at Parkhurst, in the Isle of Wight.
1839. Opening of the Agricultural Colony of Mettray, near Tours, based on religion, the family principle, and military discipline. Matthew Davenport Hill made Recorder of Birmingham.
1840. Alexander Maconochie appointed governor of Norfolk Island. Prince Oscar, of Sweden, published a book on "Punishments and Prisons."
1842. Pentonville prison, in London, opened, on the Philadelphia plan.
1844. Organization of the New York Prison Association.
1845. International Prison Congress, at Frankfort-on-the-Main.
1846. International Prison Congress. at Brussels.
1850. Formation of the board of directors of convict prisons in England.
1852. Creation of French penal colony at Cayenne, in Guiana.
1853. English penal servitude act.
1854. Formation of the board of directors of convict prisons in Ireland, of which Capt. Walter Crofton was made chairman.
1857. Transportation abolished by the English parliament. International Prison Congress at Frankfort-on-the-Main. Organization of the British Association for the Promotion of Social Science.
1870. National Prison Congress at Cincinnati: organization of the National (U. S.) Prison Association.
1872. International Prison Congress of London.
1877. Organization of the Société Générale des Prisons at Paris.
1878. International Prison Congress of Stockholm.

III.89.15

—The above skeleton will serve its purpose, if it illustrates the thought that there is a natural order of progress in prison reform; that prisons are first places of detention, then of punishment, and, last of all, of reformation; reformation being their highest, as custody is their lowest, aim. There have been isolated spirits who have perceived this truth in advance; but it was many centuries before it took possession of the public: yet its acceptance has in the end been rapid and all but universal, for which, possibly, thanks may be due to steam and to electricity, the magicians of the nineteenth century. A review of the history of the movement will show that the first reformers have been those who have had opportunities to observe prison life from the inside; that sympathy has first been awakened for the innocent victims of the prison system, namely, for poor debtors; that the cruelties formerly practiced in prisons excited a reaction in noble minds, which, acting like leaven, communicated itself in the end to the public; and that science and religion have both contributed to the development of a more rational and humane prison discipline. It will also show that the first step in prison reform, everywhere, is classification of prisoners, which may or may not go to the extent of individual separation, but which leads to a classification of prisons; that for the realization of this end, a central administration is essential. By classification, the action and reaction of prisoners upon each other is checked, if not wholly prevented. The second step is kindness and conciliation, which prepare the prisoner for the reception of instruction, and incline him to yield to the influence brought to bear upon him for his conversion from an enemy into a friend of social order. The third is education, which includes not only religious instruction, but mental development, indoctrination in the laws of social life, and the acquisition of a trade or some other means of earning an honest livelihood. The last of these ends can only be secured by the introduction into prisons of organized and profitable labor, which has the further recommendation, that, by employing the prisoner's time and thoughts, it makes discipline more easy, while it also tends to reduce the cost of punishment. A system of reformatory influence, such as is here indicated, implies trained officials, by whom alone it can successfully be administered, and that again implies reasonable stability and permanence in office, which further implies non-interference for political reasons. Success in the effort at reformation implies the release of the prisoner, absolutely or conditionally, when reformed. Failure in this effort implies the necessity for punishment of the refractory prisoner, either by the infliction of suffering, by the deprivation of privileges, or by the increased duration of his term of imprisonment. Thus it may be seen that the modern prison system, at every stage of its evolution, revolves around one central thought—the possibility of reformation; that the reformation of the prisoner is its one animating purpose; that the hope of reformation is the motive to which it owes its origin; and posterity will pronounce judgment upon it from this one point of view. All this is clear, from an attentive study of the history, of which the table given above is an outline. Reformation, instead of removing the prisoner from society, restores him to society, by removing him from the criminal class. It is, therefore, the highest interest of society. The only question is, whether it is possible, which is a question of the prisoner himself, his nature, his antecedents and his habits.

III.89.16

—The attempt to solve this question has led to the development of two distinct systems of prison discipline, which are commonly known as the Philadelphia and the Auburn plans, or the separate and the congregate systems. The first of these insists upon the separation of prisoners by day and night; the second, by night only. From these two a third has been evolved, which is, in a certain sense, a combination of the two, but has also distinct features of its own; this is commonly known as the Irish system, because, under Sir Walter Crofton, it has been most fully and successfully applied in Ireland.

III.89.17

—The first experiment with the strictly cellular system (by day and night), sometimes called the solitary or separate or individual system, was made, under the influence of the society of Friends, in the Walnut street prison, in Philadelphia: it is sometimes called the Pennsylvania system, because Pennsylvania is the only one of the United States which has not abandoned it. Its essential principle is the complete physical separation of prisoners. It rests upon the conviction that mutual contact between them is of necessity corrupting, and that classification upon any basis except that of individual character is impossible; in other words, each prisoner is a class by himself. At the outset, solitary imprisonment, without labor or recreation or mental contact with any human being, even with the officers of the prison, except in case of necessity, was the form which this experiment assumed; but the severity of this rule has now been relaxed, on account of the injury which it wrought, in some cases, both to the body and the mind of its subject. At present, useful, remunerative occupation is furnished to every prisoner, in his cell, and care is taken to preserve the activity of his mind by intercourse with the officials and with authorized visitors from the outside, who endeavor to exert upon him a salutary and reformatory influence. Certain incidental advantages of this system are obvious, namely: the impossibility of combination on the part of prisoners, which renders revolt impossible, and gives to the prison authorities more easy and certain control; there is, therefore, less occasion for the exercise of physical force in the discipline, which is an advantage to the prisoner himself; the discipline can be more varied, in accordance with the physical and mental condition, tastes and aptitudes of individual convicts; and the prisoner, when discharged, is not liable to be recognized by any who were incarcerated with him; he makes no acquaintances in the prison. These and other beneficial features of the system have occasioned its very general adoption upon the continent of Europe. Even its opponents concede its merits, when they advocate cellular imprisonment for short terms of sentence, and applaud the Irish system, of which cellular imprisonment is the initial measure. That it has produced excellent results is beyond dispute, and its friends claim, that, more than any other system, it reduces the number, of recidivists, that is, of discharged convicts who lapse again into crime.

III.89.18

—The Pennsylvania system had no rival in the United States, for many years. The prison at Auburn, in the state of New York, was organized upon this plan; but after a year's trial it was abandoned, and the "silent" system was devised, to take its place. By the new method the prisoners were employed in large workshops during the day, and separation between them, the necessity for which was acknowledged, was secured by the institution of a rule forbidding them to communicate with visitors or with each other. For the enforcement of this rule (which could, at best, be only partial), flogging was the main reliance of the keepers, and the use of the whip was, for many years, a marked feature of the system. But with the lapse of time the requirement of absolute silence has been relaxed, so that all congregate prisons with separate cells for sleeping are said to be on the Auburn plan, even though two prisoners occupy one cell jointly. In this modified sense the Auburn system has so far displaced its predecessor and rival, that the Eastern penitentiary of Pennsylvania, in the city of Philadelphia, is now the only strictly cellular prison for convicts of the higher grades, in the United States. Many causes have conspired to effect this result, among which may be named the impression made upon spectators by the sight of hundreds of men at work, side by side, with their eyes bent down, and not uttering an audible word; the comparative cheapness of construction and maintenance of congregated prisons; the ease with which profitable labor can be introduced into them, especially in connection with machinery of all sorts; the facilities which they afford for contracting out the labor of convicts, thus relieving the administration of financial responsibility; and the popular dread of the consequences of solitary confinement. These have probably had more to do with it than any higher considerations relating to the comparative reformatory influence of the two systems.

III.89.19

—The Irish system was, in its origin, an outgrowth of the experience of Capt. Maconochie, as governor of the penal settlement of Norfolk island. Conditional liberation, or the "ticket of leave," was an Australian invention; when it was first transplanted from Australia to England, it created a panic. The "mark" system was also an Australian invention, the product of Maconochie's own inventive genius. Add to these "progressive" classification, and the "intermediate" prison, and we have the four elements of the Crofton system. M. Bonneville de Marsangy, of France, foreshadowed it, in an address delivered before the bench and bar of Rheims, in 1846, in which he advocated association instead of separation of prisoners; but association modified by an initial period of cellular incarceration, by a certain number of separate and successive stages, by the employment of marks, by the intermediate prison, and finally by conditional liberation. In 1854 Capt. Crofton (afterward Sir Walter Crofton), who had for one year previous been one of the commissioners to inquire into the state of Irish prisons, was appointed chairman of the directors of convict prisons in Ireland. He was knighted in 1862 for his successful administration of this office, which he held for eight years, during which he established a mode of dealing with convicts which has attracted the attention of the world, and received the indorsement of the Baron von Holtzendorf of Prussia, Count Cavour and M. Beltrani-Scalia of Italy, Dr. Guillaume of Switzerland, Prof. Mittermaier of Heidelberg, Lord Brougham of England, and others equally illustrious and equally competent to judge of its merits. Briefly described, it is as follows: it consists of four separate stages, of which the first is not less than eight months of strictly cellular confinement in the Mountjoy prison, Dublin, with short rations and no employment but picking oakum for the first half of the time; the second is an indefinite period (not less than one year) of associated imprisonment at Spike island, at the southern extremity of Ireland, where the prisoners are divided into four classes, and are promoted from one to the other, according to their conduct, industry and diligence at school, an account being kept with them by the use of marks, and their promotion depends upon their record; the third is a short period (not less than six months) of probationary detention in a condition intermediate between imprisonment and freedom, at Lusk, about twelve miles from Dublin, where the men are trained for entire freedom, and their capacity for it is tested, prior to their liberation; the fourth is conditional liberation, with police supervision. The intermediate prison for women is the Golden Bridge Refuge, three miles from Dublin. This system is supplemented by a very perfect system of obtaining employment for prisoners after their discharge. It is possible that its beneficial influence in preventing recommitments is also aided by the readiness with which the Irish emigrate to America. The principles which underlie it are: an inexorable justice, which will not remit punishment in the case of any convict; the holding out to every prisoner of the hope of a speedy release, to be effected by his own exertions; the employment of means to make him the agent of his own reformation; the regard shown for the public, in refusing to discharge any prisoner until expiration of sentence, unless he gives positive evidence of his capacity to resist temptation ; the terrible severity with which a lapse into crime is punished; and the recognition of the necessity for mental and social contact between prisoners, after cellular separation, in order to prepare them for a re-entrance into the world.

III.89.20

—There can be no prison system which is not, in some form, a modification of one of the three here mentioned and described. The application of these several forms to different classes of prisoners (to the young, to women, to first offenders, to misdemeanants, to felons, to prisoners awaiting trial, to convicts under short and long sentences, etc.), and their adaptation to the social state of different nations, constitute the problem of penitentiary science.

III.89.21

—The details of prison administration, though of intense interest to specialists, would occupy more space than can be given them in the present article. Questions which have been much discussed, and concerning which a great variety of opinion exists, are such as these: prison architecture and sanitation; the prison staff; mode of appointment of officers; tenure of office; prison dietaries; labor in prisons—as a reformatory measure, as a means of reducing the cost of crime, as a preparation for the rehabilitation of the criminal, as it affects the interests of labor outside the prison walls, and the best mode of carrying it on, that is, whether under the immediate control of the prison authorities, or by contracting it out to private persons or corporations ; prison schools, including the question of normal schools for training prison employés in their duties; religious instruction in prisons; prison libraries; the correspondence of prisoners; visits to prisoners by their friends and by other persons; the rights of convicts in prison; the privileges which it is expedient to grant them, and especially the effect of allowing them a percentage of their earnings; the dress of prisoners; disciplinary punishments in prison; prison registers, and the use of photography as an aid to the identification of escaped prisoners, or of recidivists; prison statistics; the proper treatment of sick prisoners and of convicts who are or who become insane; the duration of imprisonment, *49 as it is affected by life sentences, by cumulative sentences, by "good-time" laws, and by executive interference; the effect of transition from a state of imprisonment to a state of freedom upon the prisoner himself, and the necessity for continued care of him subsequent to his discharge, with especial reference to securing him honest employment.

III.89.22

—The tests of successful prison administration are: 1. The behavior of prisoners during incarceration. An increased percentage of suicides, or of attempted escapes, or of riotous demonstrations, or even of disciplinary punishments, is an indication of weakness, cruelty, or vacillation in the discipline. 2. The sanitary condition of prisons, and especially the death rate. 3. The number of recidivists, or recommitments. 4. The general increase or decrease in the amount of crime perpetrated. 5. The financial result; but too much relatively may be made of financial success, since it may be attained by the sacrifice of other ends infinitely more important.

III.89.23

—For the application of these tests, scientific observation, continued for a term of years, is essential; such observation must be by inspection, and by the accumulation and digestion of statistical information: it implies trained observers with authority to collect information, and an organized system of returns. Hence the effort to organize a system of international penitentiary statistics, of which M. Beltrani-Scalia is perhaps the most intelligent and persistent advocate, but which has thus far failed. As for this country, the absence of any approach to unity in the organization of our prison system renders it peculiarly difficult to collect data for a trustworthy estimate of its actual effect in the repression of crime. The percentage of failure is undoubtedly large. The causes of this failure are obscure: whether it is due to the persistence of the criminal character, or to the want of experience and of devotion on the part of prison officers, or to faulty methods of organization and discipline.

III.89.24

—The failure of the prison everywhere to accomplish the work which is desired and expected of it, has led some bold thinkers to predict its abolition, but without clearly indicating what is to take its place. There are very many who believe that too much reliance is placed upon it, and too much use made of it; they would prefer to see more use made of judicial admonition and police supervision. One thought seems to run through all the publications with which the press has teemed, for some years past—books, pamphlets, reports, addresses, transactions of prison and other societies, and of prison congresses at home and abroad: it is that the prevention of crime is to be aimed at, rather than its repression. To prevent it, we must stop the operation of the causes which produce it. These causes are to be sought, either in the character of the individual who commits crime, or in his circumstances. The criminal himself has become the object of attentive study, in his physical as well as in his mental and moral organization, with a view to determine how far he is normal and how far abnormal, and how far any departure from a normal type which he presents for our consideration, is due to hereditary predisposition to crime; in other words, whether there is a criminal neurosis. The connection between crime and the social milieu has become apparent, and causes of crime are found not only in ignorance, in intemperance, in idleness, in destitution, and in the want of friends and of a home, but in the relations of labor and capital, in the character and amount of the food supply, in bad legislation and vicious customs, in inefficient police regulations, and a lax administration of justice. Human nature is as sensitive to its surroundings as is an electrometer to the electric current, and whatever tends to elevate mankind, to improve its condition either physically or mentally, tends also to the elimination of crime. The reformation of morals is a part of the general advance of civilization, and each part must advance with the whole, something as a railway carriage goes forward or backward with the train of which it forms a part. Too much dependence ia not to be placed upon any prison system. It is always to be remembered that no system will succeed in the hands of an incompetent or dishonest man; while even a bad system, in the hands of an earnest and able man, may be productive of the best results.

FRED. H. WINES.


Notes for this chapter


49.
There are but three possible varieties of sentences for crime, namely: fixed, discretionary, and indeterminate.

—A primitive state of society can be imagined, in which in the absence of any penal code, all offenses are visited with a single extreme penalty, or, at least. in which the amount of torture inflicted is limited only by the caprice of the despot who inflicts it. The invention of a scale of punishments (échelle des peines), and the application of punishment according to this scale, under rules prescribed by a code, may be regarded as the first step in the onward march of humanity in quest of that ideal justice which forever eludes discovery. Under an absolute code, sentences are fixed; that is, the penalty for each offense is named in the code itself, and no latitude is left for the exercise of discretion by the courts. But experience under an absolute code makes it apparent that the legislature can not adjust punishment to guilt; that in order to equality of punishment. punishment must be more flexible; that the heinousness of an offense depends not merely upon the character of the act, but upon the circumstances of its commission, and the character and motives of the actor, which can not be known, except as revealed by the evidence at the time of the trial. To this conviction is due the amendment of the code, by substituting for definite penalties the principle of maximum and minimum punishments: the amount of punishment in each actual case is, within certain prescribed limits, determined by the court, and to that extent the sentence is discretionary. Under this system the legislature shifts from its own shoulders to those of the judiciary a large share of the responsibility for a just estimate of guilt. But the courts are as incapable of apportioning punishment as is the legislature: the inequality of punishment against which the system is a protest still exists: convicts feel it, prison officers see it, and judges confess it. One sole resource is left. namely, again to divide the burden of responsibility, by placing it in part upon the officials to whom the custody and oversight of prisoners are committed. The first suggestion of a possibility of such a solution was the creation. in the Australian colonies, of the ticket-of-leave. But the principle of conditional liberation. once recognized, gained adherents everywhere, and it has been incorporated in many penal codes. The "mark" system and "good-time" laws are outgrowths of this principle of variability in the duration of imprisonment, dependent upon the conduct of the prisoner himself. The indeterminate sentence is its highest and latest form. It exists only in theory, not having been reduced to practice by any government, but is advocated by many able men who have had practical experience in the administration of the criminal law and in the care of criminals. Under this ideal system, neither the legislature nor the courts prescribe any definite term of imprisonment; maximum and minimum penalties are abolished; the court passes solely upon the criminality of the prisoner under indictment; his release from prison depends upon his amenability to discipline, and the estimate formed of his character by those who hold him in custody and under observation. and by whom discipline or "treatment" is to be administered to him.

—To this definition of the indeterminate sentence it is essential to add the briefest possible account of the nature of the arguments for and against it. It has a close logical connection with that theory of crime, according to which criminal actions are the product of disease; crime is a neurosis, like insanity or idiocy, and should be so treated: in so far as it is analogous to insanity, the criminal has a right to cure, and in so far as it is analogous to idiocy, he has a right to education, training and development; prisons should be regarded and conducted as moral hospitals or training schools for moral imbeciles, rather than as places of punishment. It is also connected with that theory of moral responsibility which either denies its existence or denies that it can be judged by any but Almighty God; which would eliminate from criminal jurisprudence all thought of retribution or expiation; which would abandon the attempt to adjust penalty to illdesert; and which denies the right of society, if not of God himself, to inflict punishment upon any sentient creature. Of the three possible bases of a penal code, it only accepts two, namely, the protection of society and the reformation of the offender. The status of the criminal is reduced to a dilemma: he can be reformed, or he can not; if he can be, he should be; if he can not be reformed, he should be held for life, if necessary, in order to protect society from injury at his hands. Hence, indeterminate sentences are sometimes called reformation sentences. In the terse language of Mr. Recorder Hill. of Birmingham. "To our limited faculties, crime and punishment have no common measure; our [present] course of proceeding is almost as vain in practice as it is absurd in theory; and in truth, there remain for us but two modes of usefully dealing with criminals—incapacitation and reformation."

—It is evident that the questions raised by the advocates of the indeterminate sentence cover pretty much the whole field of human thought, in science, in religion, in philosophy, in morals, in politics and in law. To argue them exhaustively a profound knowledge of first principles and an extensive acquaintance with the facts of science and of history are essential prerequisites.

—But from the practical side, the point of view of the statesman and the legislator, the question is one of the concentration or distribution of power: what powers shall be conferred upon prison officers, what use they might make of them for good or for evil, what guarantees can be given that such enormous power over individuals will not be abused. On the other hand, it is a question what benefit, in the reformation of prisoners or the repression of crime, would follow the grant if made. It is an outward obedience only which is paid to power. The heart is moved by love; and it is not easy to see wherein there would be any more room for the exercise of love under the new than under the present system, while it is quite certain that an increase of power begets an increase of fear, and that under the influence of fear the moral character is more likely to deteriorate than to improve. It may well be asked: If the adjustment of penalty to guilt is a task beyond the power of any legislature or any court. is it not also beyond the power of any prison board? Or if we discard the idea of penalty, and consider the criminal as a man diseased, what assurance can we have, that the persistence of the criminal, as of the insane, temperament, will not defy every effort for its eradication? If we concede that the majority are susceptible of cure, is it just to incarcerate for life those who can not be cured, and yet whose criminality may be of too feeble a type to involve any serious peril to society as the result of their liberation? and if not, then how, and by what tribunal, and upon what principle, is the date of their release to be determined?

—There is no immediate prospect of the general acceptance of the indeterminate sentence; but the discussion opens up such a wide range of investigation and reflection as to make it interesting and profitable to all thoughtful students of penology. Its acceptance would put an end to the debates about cumulative sentences, restitution sentences, life sentences, a scale of penalties, the assimilation of penalties, and many other subsidiary questions of criminal jurisprudence. With the adoption of this form of sentence, society would return to its original position and conviction. that, in one way or in another, the expulsion of irreclaimable offenders is a necessity. No more complete confession of the failure of existing modes of dealing with crime can well be imagined.

Footnotes for PRODUCTION OF WEALTH

End of Notes


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