The Indeterminate Sentence: What Shall Be Done with the Criminal Class?

by Charles Dudley Warner

The introduction of the ticket-of-leave and the parole systems, and the earning of time by good behavior were philanthropic suggestions and promising experiments which have not been justified by the results. It is not necessary at this time to argue that no human discretion is adequate to mete out just punishment for crimes; and it has come to be admitted generally, by men enlightened on this subject, that the real basis for dealing with the criminal rests, firstly, upon the right of society to secure itself against the attacks of the vicious, and secondly, upon the duty imposed upon society, to reform the criminal if that is possible. It is patent to the most superficial observation that our present method does not protect society, and does not lessen the number of the criminal class, either by deterrent methods or by reformatory processes, except in a very limited way.

Our present method is neither economic nor scientific nor philanthropic. If we consider the well-defined criminal class alone, it can be said that our taxes and expenses for police and the whole criminal court machinery, for dealing with those who are apprehended, and watching those who are preying upon society, yearly increase, while all private citizens in their own houses or in the streets live inconstant terror of the depredations of this class. Considered from the scientific point of view, our method is absolutely crude, and but little advance upon mediaeval conditions; and while it has its sentimental aspects, it is not real philanthropy, because comparatively few of the criminal class are permanently rescued.

The indeterminate sentence has two distinct objects: one is the absolute protection of society from the outlaws whose only business in life is to prey upon society; and the second is the placing of these offenders in a position where they can be kept long enough for scientific treatment as decadent human beings, in the belief that their lives can be changed in their purpose. No specific time can be predicted in which a man by discipline can be expected to lay aside his bad habits and put on good habits, because no two human beings are alike, and it is therefore necessary that an indefinite time in each case should be allowed for the experiment of reformation.

We have now gone far enough to see that the ticket-of-leave system, the parole system as we administer it in the State prisons (I except now some of the reformatories), and the good conduct method are substantially failures, and must continue to be so until they rest upon the absolute indeterminate sentence. They are worse than failures now, because the public mind is lulled into a false security by them, and efforts at genuine prison reform are defeated.

It is very significant that the criminal class adapted itself readily to the parole system with its sliding scale. It was natural that this should be so, for it fits in perfectly well with their scheme of life. This is to them a sort of business career, interrupted now and then only by occasional limited periods of seclusion. Any device that shall shorten those periods is welcome to them. As a matter of fact, we see in the State prisons that the men most likely to shorten their time by good behavior, and to get released on parole before the expiration of their sentence, are the men who make crime their career. They accept this discipline as a part of their lot in life, and it does not interfere with their business any more than the occasional bankruptcy of a merchant interferes with his pursuits.

It follows, therefore, that society is not likely to get security for itself, and the criminal class is not likely to be reduced essentially or reformed, without such a radical measure as the indeterminate sentence, which, accompanied, of course, by scientific treatment, would compel the convict to change his course of life, or to stay perpetually in confinement.

Of course, the indeterminate sentence would radically change our criminal jurisprudence and our statutory provisions in regard to criminals. It goes without saying that it is opposed by the entire criminal class, and by that very considerable portion of the population which is dependent on or affiliated with the criminal class, which seeks to evade the law and escape its penalties. It is also opposed by a small portion of the legal profession which gets its living out of the criminal class, and it is sure to meet the objection of the sentimentalists who have peculiar notions about depriving a man of his liberty, and it also has to overcome the objections of many who are guided by precedents, and who think the indeterminate sentence would be an infringement of the judicial prerogative.

It is well to consider this latter a little further. 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. Now two functions are involved here: one is the determination that the accused has broken the law, the other is gauging within the rules of the code the punishment that, each individual should receive. It is a theological notion that the divine punishment for sin is somehow delegated to man for the punishment of crime, but it does not need any argument to show that no tribunal is able with justice to mete out punishment in any individual case, for probably the same degree of guilt does not attach to two men in the violation of the same statute, and while, in the rough view of the criminal law, even, one ought to have a severe penalty, the other should be treated with more leniency. All that the judge can do under the indiscriminating provisions of the statute is to make a fair guess at what the man should suffer.

Under the present enlightened opinion which sees that not punishment but the protection of society and the good of the criminal are the things to be aimed at, the judge's office would naturally be reduced to the task of determining the guilt of the man on trial, and then the care of him would be turned over to expert treatment, exactly as in a case when the judge determines the fact of a man's insanity.

If objection is made to the indeterminate sentence on the ground that it is an unusual or cruel punishment, it may be admitted that it is unusual, but that commitment to detention cannot be called cruel when the convict is given the key to the house in which he is confined. It is for him to choose whether he will become a decent man and go back into society, or whether he will remain a bad man and stay in confinement. For the criminal who is, as we might say, an accidental criminal, or for the criminal who is susceptible to good influences, the term of imprisonment under the indeterminate sentence would be shorter than it would be safe to make it for criminals under the statute. The incorrigible offender, however, would be cut off at once and forever from his occupation, which is, as we said, varied by periodic residence in the comfortable houses belonging to the State.