The execution of this sentence will be rendered <p 215>definite by successive steps, which will no longer be detached, as they now are, from the action of the magistrate, and taken without his knowledge, but will be a systematic continuation of his work. Permanent commissions for the supervision of punishment, composed of administrative functionaries, experts in criminal anthropology, magistrates, and representatives of the Public Prosecutor and the defence, would render impossible that desertion and oblivion of the convict which now follow almost immediately on the delivery of the sentence, with the execution of which the judge has nothing to do, except to see that he is represented. Pardon, or conditional liberation, or the serving of the full punishment, are all left at present to the chance of a blind official routine. These commissions would have great social importance, for they would mean on one hand the protection of society against imprudent liberation of the most dangerous criminals, and on the other hand the protection of the less dangerous against the danger of an imprisonment recognised as excessive and unnecessary.
Allied to the principle of indeterminate segregation is that of conditional release, which with the progressive prison system, known as the Irish, is now accepted in nearly all European countries. But conditional liberation in the system of definite punishments, without distinction amongst the types of criminals, is both contradictory in theory and ineffectual in practice. At present, indeed, it has only a mechanical and almost impersonal applica<p 216>tion, with one fallacious test, that of the alleged ``good conduct'' of the prisoner, which, according to the English Inquiry Commission in 1863, ``can only have the negative value of the absence of grave breaches of discipline.''
It will be understood that conditional release, as it would be organised in the positive system of indeterminate segregation, ought only to be granted after a physio-psychological examination of the prisoner, and not after an official inspection of documents, as at present. So that it will be refused, no longer, as now, almost exclusively in regard to the gravity of the crime, but in regard to the greater or less re-adaptability of the criminal to social conditions. It will therefore be necessary to deny it to mad and born criminals who are guilty of great crimes.
Conditional liberation is now carried out under the special supervision of the police; but this is an ineffectual measure for crafty criminals, and disastrous for occasional criminals, who are shut out by the supervision from re-adaptation to normal existence. The system of indeterminate segregation renders all special supervision useless. Moreover, this duty only distracts policemen by compelling them to keep an eye on a few hundred liberated convicts, and to neglect thousands of other criminals, who increase the number of unknown perpetrators of crime.
Similarly as to the discharged prisoners' aid societies, which, notwithstanding their many sentimental declamations, and the excellence of their intentions, continue to be as sterile as they are benevolent. The reason here also is that they <p 217>forget to take into account the different types of criminals, and that they are accustomed to give their patronage impartially to all discharged prisoners, whether they are reclaimable or not. It must not be forgotten, moreover, that this aiding of malefactors ought not to be exaggerated when there are millions of honest workmen more unfortunate than these liberated prisoners. In spite of all the sentimentalism of the prisoners' aid societies, I believe that a foreman will always be in the right if he chooses an honest workman for a vacancy in his workshops in preference to a discharged prisoner.
At the same time these societies may produce good results if they concern themselves solely with occasional criminals, and especially with the young, and make their study of crime contribute to the training of future magistrates and pleaders.
2. The second fundamental principle of the positive system of social defence against crime is that of indemnification for damage, on which the positive school has always dwelt, in combination with radical, theoretical, and practical reforms.
Reparation of damage suffered by the victims of crime may be regarded from three different points of view:—(1) As an obligation of the criminal to the injured party; (2) as an alternative for imprisonment for slight offences committed by occasional criminals; and (3) as a social function of the State on behalf of the injured person, but also in the indirect and not less important interest of social defence. <p 218>
The positive school has affirmed the last two reforms—the second on the initiative of Garofalo and Puglia, and the third on my own proposal, which, as being more radical, has been more sharply contested by the classical and eclectic schools.
In my treatise on ``The Right of Punishment as a Social Function,'' I said: ``Let us not be told that __civil__ reparation is no part of penal responsibility. I can see no real difference between the payment of a sum of money as a fine and its payment as damages; but more than that, I think a mistake has been made in separating civil and penal measures too absolutely, whereas they ought to be conjoined for defensive purposes, in preventing certain particular anti-social acts.'' And again, classifying the measures of social defence (``measures of prevention, reparation, repression, and elimination''), I said in regard to measures of reparation: ``Our proposed reform is not intended to be theoretical merely, for indeed it may be said already that this liability to indemnify is established in the majority of cases; but it should be above all a practical reform, in the sense that, instead of separating civil and penal measures, we shall make their joint application more certain, and even require special regulations to compel the criminal judges, for instance, to assess the damages, and so avoid the delays and mischances of a new trial before the civil judges, and to compel the Public Prosecutor to make an official demand, even when through ignorance or fear there is no action on the part of the injured person, that the criminal should be condemned to make good the loss which he has <p 219>inflicted. It will then be seen that the fear of having to make strict restitution will be a spur to the diligence of the well-to-do, in regard to involuntary offences, whilst for the poor we shall be able to impose work on behalf of the injured person in place of pecuniary damages.''