Enrico Ferri

“ It is entirely futile to consider the amendment of criminals as opposed to imprisonment for life, when it is known that born criminals, authors of the most serious crimes, for whom such punishment is reserved, are precisely those whose amendment is impossible, and that the moral sense attributed to them is only a psychological fallacy of the classical psychologist, who attributes to the conscience of the criminal that which he feels in his own honest and normal conscience. ”

“ For it is easy to reach on one side the empiric idea of penal terrorism, and on the other side the hasty and one-sided conclusion that to abolish some particular institution would get rid of its abuses. The fact is that we must consider before all things whether it is not a less evil to put up with institutions, however inconvenient, and to reform them, than to forfeit all the advantages which they afford. And it must above all be borne in mind that as society cannot exist without law, so law cannot exist without offences against the law. ”

“ The preventive and deterrent efficacy of the death penalty is very problematical when we examine it not by our own impressions as average human beings, calmly and theoretically, but with the data of criminal psychology, which is its only true sphere of observation. Every one who commits a crime is either carried away by sudden passion, when he thinks of nothing, or else he acts coolly and with premeditation, and then he is determined in his action, not by a dubious comparison between the death penalty and imprisonment for life, but simply by a hope of impunity. ”

“ And, under its influence, how much of the clear atmosphere of humanity will stimulate our courts of justice, which are still too much isolated from the world and from human life, where, nevertheless, prisoners and witnesses come, and too often come again, living phantoms whom the judges know not, and only see confusedly through the thick mist of legal maxims, and articles of the code, and criminal procedure. ”

“ 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. ”

“ 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. ”

“ 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! ”

“ Punishment, which has professed to be such a simple and powerful remedy against all the factors of crime, is therefore a panacea whose potency is far beneath its reputation.
We must bear in mind a fact which is familiar enough, though it has been too often forgotten by legislators and criminalists. Society is not a homogeneous aggregate, but on the contrary an organism, like every animal organism, composed of tissues of varying structure and sensibility. ”

“ 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 ”

“ You will never be convicted, because you never stole; and if we happen to be innocent once in a way, that must be set against the other times when we are not discovered.'' And the ironical smile of several of these prisoners, condemned on circumstantial evidence, reminded me of a provision which was once proposed in the Italian penal code, under which a person surprised in the attempt to commit a crime, if it was not known what precise form his crime would have taken, was to be found guilty of a less serious offence. ”

“ Yet, as the jury is a legal institution, we must consider its advantages and defects, both from the political and from the legal point of view, and accept the conclusion forced upon us by the predominance of one or the other.
From the political standpoint, it is unquestionable that the jury is a concession to popular sovereignty; for it is admitted that the power of the law not only originates with the people, but is also directly exercised by them. ”

“ I will not further discuss the death penalty, for it is by this time an exhausted question from the intellectual standpoint, and has passed into the domain of prejudice for or against, and this prejudice is concerned rather with the more or less repugnant method of execution than with the penalty itself. In its favour there is the absolute, irrevocable, and instantaneous elimination from society of an individual who has shown himself absolutely unadaptable, and dangerous to society. ”

“ And punishment, which is one of the social forms of pain, is always a direct motive in human conduct, as it is also an indirect guide, by virtue of its being a sanction of justice, unconsciously strengthening respect for the law. But still this psychological truth, whilst it demonstrates the natural character of punishment, and the consequent absurdity of abolishing it as absolutely void of efficacy, does not destroy our conclusion as to the slight efficacy of punishment as a counteraction of crime. ”

“ And it is to the credit of criminal theorists of the classical school that they have steadily maintained that a mild yet certain punishment is more effectual than one which, being severe in itself, holds out a stronger hope of escaping it. Nevertheless it is a fact that they have carried the theory too far, by seeking to obtain excessive mitigations and abbreviations of punishment, without exerting themselves to secure certainty by reforms of procedure and police administration. ”

“ In fact, if crime were the exclusive product of the social environment, how could one explain the familiar fact that in the same social environment, and in identical circumstances of poverty, abandonment, lack of education, sixty per cent. do not commit crimes, and, of the other forty, five prefer suicide, five go mad, five simply become beggars or tramps not dangerous to society, whilst the remaining twenty-five actually commit crimes? ”

“ The great thing is to be convinced that, for social defence against crime, as for the moral elevation of the masses of men, the least measure of progress with reforms which prevent crime is a hundred times more useful and profitable than the publication of an entire penal code. ”

“ In the first place, it is easily seen, when we compare the total result of crime with the varied character of its anthropological, physical, and social factors, that punishment can exert but a slight influence upon it. Punishment, in fact, by its special effect as a legal deterrent, acting as a psychological motive, will clearly be unable to neutralise the constant and hereditary action of climate, customs, increase of population, agricultural production, economic and political crises, which statistics invariably exhibit as the most potent factors of the growth or diminution of criminality. ”

“ 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. ”

“ 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. ”

“ Again, the jury may be a means of affirming the sentiment of equality amongst citizens, each of whom may to-morrow become a judge of his equals, and of spreading political education, with a practical knowledge of the law. It is true that, with this knowledge of the law, juries also learn the details of every kind of crime, without the equally constant evidence of virtuous actions; and there is here a danger of moral contagion from crime. ”

“ 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. ”

“ 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. ”

“ Every society, in fact, with its progressive and increasingly distinctive needs and occupations, is a product of the union of social classes which differ greatly in their organic and psychical characteristics. The physical constitution, the habits, sentiments, ideas, and tendencies of one social stratum are far from being the same as those of other strata. Here again we have, as Spencer would say, the law of evolution through a departure from the homogeneous to the heterogeneous, from the simple to the complex, or, in the words of Ardigo, a natural formation by successive distinctions. ”

“ Punishment by itself, as a means of repression, possesses a negative rather than a positive value; not only because it has not the same influence on all anthropological types of criminals, but also because its use is rather to preclude the serious mischief which would result from impunity than to convert, as some imagine that it can, an anti-social into a social being. ”

“ This is the nursery of the born criminals, for whom punishments, so far as they are legal deterrents, are useless, because they encounter no moral sense which could distinguish punishment by law from the risk which also attends upon every honest industry. ”

“ The varying social and international conscience of civilised humanity is not to be neglected, and it must be reckoned with as a positive factor in considering the destiny of nations. Men continue to speak of the perils of war (in which numbers stand for a great deal, but are not the exclusive element) as though the social conscience of our own day were still the same as that of the Middle Ages. In several respects, on the other hand, the thinner population of France is one cause of its wealth, and therefore of its power. Germany has a more numerous, but also a poorer population. ”

“ We have only to distinguish between punishment as a natural sanction and punishment as a social sanction in order to see how the really great power of natural punishment almost entirely disappears in social punishment, which in all our systems is but a sorry caricature. ”

“ Thus it may be concluded that a prudent social legislation, not stopping short at mere superficial and perfunctory reforms, might constitute a genuine code of penal substitutes, which could be set against the mass of criminal impulses engendered by the wretched conditions of the most numerous classes of society. ”

“ In a question of forgery, poisoning, or abortion, the judge has recourse to experts in handwriting, chemistry, or obstetrics; but beyond these technical, special, and less frequent cases, in every criminal trial the basis of inquiry is or ought to be formed by the data of criminal biology, psychology, and psycho-pathology. So that, over and above the knowledge of these sciences which is necessary to judges, magistrates, and police officers, it is most important that an expert, or several experts in criminal anthropology should be attached to every court of criminal inquiry. ”

“ The aim of penal substitutes is not to render all crimes and offences impossible, but only to reduce them to the least possible number in any particular physical and social environment. There are crimes of piracy to this day, but the use of steam in navigation has, none the less, been more effectual than all the penal codes. Murders still occur, though very rarely, on the railways; but it is none the less true that the substitution of the railways and tramways for the old diligences and stage coaches has decimated highway robberies, with or without murder. ”

“ Surely it is not speaking seriously to say that the right of the individual cannot be suppressed if necessity demands it, when we see it done every day in cases of legitimate self-defence; and that punishment is exhausted by excess of duration, when it is precisely the duration of banishment from one's kind which constitutes the only real efficacy of punishment; and to speak of the sociable instinct in connection with the most anti-social criminals. ”

“ I do not mean a mechanical instruction in moral maxims, appealing to the intelligence without reaching the feelings, but rather of the examples afforded by every kind of social institution, by the government and the press, by the school of the stage and of public entertainments.—It would be well, however, to abolish certain vulgar and sensual entertainments, and to substitute for them wholesome amusements and exercises, public baths, properly superintended, and so built as to render private meetings impossible, cheap theatres, and so forth. ”

“ In fact, whereas this right has hitherto been regulated by law only in view of the legal and material gravity of the offence, it should in future be made to depend on the perversity of the offender; for society has a much greater interest in defending itself against the author of a slight offence if he is a born criminal or a criminal lunatic, than in defending itself against the author of a more serious crime, if he is an occasional criminal or a criminal of passion. ”

“ Herein we have an opportunity of solving the old question of the authority of the judge, wherein we have gone from one excess to another, from the unbounded authority of the Middle Ages to the Baconian aphorism respecting the law and the judge, according to which the law is excellent when it leaves least to the judge, and the judge is excellent when he leaves himself the least independent judgment. ”

“ 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. ”