Penal system

“ We are generally informed that our penal systems exist for the purpose of repressing crime, and that punishment is thus inflicted upon the criminal in order that others may be deterred from following his example. ”

“ If, however, our penal laws are intended to be not merely punitive, but also, and mainly, reformatory, a system which consists of sending men into and out of prison at more or less regular intervals is obviously futile and childish. ”

“ The very fact of the common acceptation of the word penal, as applied to our criminal system, is of itself a strong proof of the misunderstanding on which that system is founded, and on which we legislate. If we arrogate to ourselves a right to judge men for their crimi{220}nality, instead of urging our only legitimate excuse for punishing, namely, “the giving over the offending member to that course of discipline we deem most likely to restrain a similar disposition to delinquency in another member of the frame-work of society,” let us at least carry out this principle to the full extent ”

“ Division, and that Courts, when satisfied that a person convicted on indictment of an offence punishable by penal servitude after more than two previous convictions on indictment, was leading a persistently dishonest or criminal life, and that it was expedient for the protection of the public that he should be kept in detention for a term of years, should have power, after passing a sentence of penal servitude for not less than seven years, to order that he should pass a certain period of his sentence in the Habitual Offenders' Division. ”

“ 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. ”

“ When we speak of the repression of crime, we must first of all distinguish between that which is due to the general character of penal legislation, more or less severe, and that which is secured by the administration by the judges of the law as it is. ”

“ The penal code and the code of criminal procedure that have replaced it attempt to ensure that criminals are not able to evade the penalties provided for in the law but, at the same time, there is a stated guarantee against the arrest, trial, or conviction of innocent persons. ”

“ I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is as I am just going to say in my statement, either to resign your post, or inflict on me the severest penalty, if you believe that the system and law you are assisting to administer are good for the people. ”

“ What organization was provided for the enforcement of order, and for the protection of life and property? For its first line of defence England trusted to the supposed deterrent effect of a rigorous penal code; the more humane and effectual method, prevention, being lost sight of in the mistaken belief that it was possible to extirpate crime by the severity with which it was punished, a belief that survived in face of the fact, that as punishment increased in bitterness, so did offences grow in frequency and in violence. ”

“ 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. ”

“ The object of criminal jurisprudence should be the repression of crime to the lowest possible amount, the treatment of the criminal being a means to that end, not an end itself; (2) with retribution for sin, man, in regard to his fellow-man, has nothing to do; (3) punishment used solely as a deterrent being often futile, at the best insufficient, and always uncertain in effect, two methods alone exist of preventing crime by penal means, namely, incapacitation or reformation. Under incapacitation come capital punishment and imprisonment. ”

“ When the deed is done he recognizes that the punishment is out of all proportion to the offence,—which is in itself the primary recognition of a penal code,—and more especially that the judgment of man is against him. ”

“ In fact, our artisans have become, since the revolution of 1830, not only judge and jury, but legislators also. Different crimes have different punishments assigned to them by our penal code; but it rarely, or I might say never, occurs in our days that the punishment inflicted has any reference to that which is assigned by the law. ”

“ The third proposition of the positive school in regard to individual guarantees, which was also advanced by M. Puglia, is connected with reform of the penal code, and especially with the more effectual indemnification of the victims of crime. The object is to prune the long and constantly increasing list of crimes, offences, and contraventions of all acts which result in slight injury, committed by occasional offenders, or ``pseudo- criminals''—that is, by normal persons acting merely with negligence or imprudence. ”

“ Men who are imprisoned for first offences, whether it be in a county jail or a convict prison, should most certainly be kept perfectly distinct from 'second-timers,' and not on any account be brought into contact with old offenders, who, in too many cases, simply complete their education in vice." He further states, in a concise form, what, in his estimation, should be the aim of all penal measures. 1st. The punishment of those who have transgressed the laws of the country, and the deterring others from crime; 2d. The getting rid of the troublesome and criminal class of the population ”

“ Why then repeal any penal statute while the subject of its animadversion exists? In prisons the less criminal are placed among the more criminal, the inexperienced in vice together with the hardened in it. ”

“ But if a criminal trial ought to be, on the other hand, a physio- psychological examination of the accused, the crime being relegated to the second line, as far as punishment is concerned, the criminal being kept in the front, then it is clear that the penal code should be limited to a few general rules on the modes of defence and social sanction, and on the constituent

elements of every crime and offence, whilst the judge should have greater liberty, controlled by the scientific and positive data of the trial, so that he may judge the man before him with a knowledge of humanity. ”

“ To expatiate upon the principles of penal law is foreign to the purpose of this work, but thus much is evident to the plainest apprehension, that the objects most to be desired in it are the restriction of the number of capital inflictions, as far as is consistent with the security of society; and the employment of every method that can be devised for rendering the guilty persons serviceable to the public, and just to themselves ”

“ In penal legislation we have steadily reduced felonies to misdemeanors, and have led the world in mitigating punishment for crime, that we might save, as far as possible, this dependent race from its own weakness. ”

“ That these causes do to a great extent defeat the preventive effect of our penal laws, is proved by the tale of our criminal statistics, which reveal the fact that most of our crime is committed by those who [100] have once been punished, and that of general crime about 77 per cent. is committed with impunity. But if so large a proportion of crimes pass unpunished altogether, it is evident that society depends much less for its general security upon its punishments than is commonly supposed. ”

“ Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon.' Besides, the act throughout uses the words 'fine,' and 'fined,'-words which, in their primary sense, import the punishment of a person convicted of crime. ”

“ It may be added that, if the slight deterrent influence which it is possible for punishment to exercise depends, with its adaptation to various types of criminals, on the certitude and promptitude of its application, the others depend precisely and solely on the organisation of the police, and of penal procedure. ”

“ The careless nurse is a criminal and may be confined in a penitentiary; while perhaps a man who may be guilty of a great iniquity and known to be so drives nonchalantly off in his coach and four.
What is crime? We may well ask the question, only eventually to be confronted by that illuminating definition with which begins the Penal Code—"A crime is an act or omission forbidden by law and punishable upon conviction by ... ”

“ Besides, according to common notions, avowed by writers upon morals on less general principles, and by lawyers too, all penal laws give a man an alternative, either to abstain from the action prohibited, or to take the penalty. ”

“ 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. ”

“ JUDGES, in criminal cases, have no right to interpret the penal laws, because they are not legislators. They have not received the laws from our ancestors as a domestic tradition, or as the will of a testator, which his heirs, and executors are to obey; but they receive them from a society actually existing, or from the sovereign, its representative. ”

“ When the severity of the penal code was mitigated, it still remained unfashionable to prosecute, partly from force of habit, partly because the public which had no confidence in the police, would not willingly incur the trouble and danger of taking an active part in the administration of justice, but chiefly because the expense of putting the law in motion was prohibitive for all but the comparatively [288] wealthy. ”

“ Henceforth we must seek, through the study of

facts, a better direction for penal legislation as a function of society, so that, by the observation of psychological and sociological laws, it may tend, not to a violent and always tardy reaction against crime already evolved, but to the elimination or diversion of its natural factors. ”

“ We are aware that in some countries, in framing their penal laws and discipline, the only object appears to be to prevent the continued perpetration of offences by the imprisonment of those convicted as offenders, and by the severity of their punishment to deter them from a repetition of their crimes after their discharge; the example of which punishment, it is desired, shall also operate to restrain others from entering upon and pursuing an equally criminal course. ”

“ Convicts, however bad their conduct had been, were discharged on the expiration of a certain portion of their sentence, and scarcely a single license was revoked except on the commission of a fresh crime. Crimes of violence increased, and the public laid the blame on the system. ”

“ The penal laws of the country have been found insufficient; in fact, notwithstanding their unexampled severity, and which is stigmatized as a national disgrace, the most heinous crimes continue to be perpetrated, as if there were no laws existing by which the criminal could be punished for his misdeeds. ”

“ They are through out punitive and highly penal; they punish with death or with imprisonment almost as bad as death, the crime of treason; they create a new crime, that of rebellion, and punish it with imprisonment or fine, or with both, at the discretion of the court, and, to all these penalties superadd those of confiscation and of civil disability, heretofore unknown to our penal code. No one can doubt, that this is a penal statute designed to punish treason and rebellion. ”

“ Our criminal code, artificial and indiscriminating as it is, is the growth of ages and is the result of the notion that society ought to take vengeance upon the criminal, at least that it ought to punish him, and that the judge, the interpreter of the criminal law, was not only the proper person to determine the guilt of the accused, by the aid of the jury, but was the sole person to judge of the amount of punishment he should receive for his crime. ”

“ The procedure in penal cases including the administration of punishment, in civil cases and in matters of voluntary jurisdiction, is to be simplified and expedited, by eliminating all dispensable measures and by utilizing all available manpower, as far as it is compatible with the purpose of the procedure. In particular, in penal cases the enforcement of the indictment by the offended party, and the formal decree of the court opening, the trial will be eliminated; the authority of the local court in penal matters is to be enlarged, and the admissibility of writs of punishment to be extended. ”

“ Thus the arguments of jurists and legislators have not much value for the criminal sociologist when they are based solely on the psychological illusion that the dangerous classes trouble themselves about the shaping of a penal code, as the more instructed and less numerous classes might well do. The dangerous classes attend to the sentences of the judges, and still more to the execution of those sentences, than to the articles of a code. ”