It is this blind worship of punishment which is to blame for the spectacle which we witness in every modern country, the spectacle that the legislators neglect the rules of social hygiene and wake up with a start when some form of crime becomes acute, and that they know of no better remedy than an intensification of punishment meeted out by the penal code. If one year of imprisonment is not enough, we'll make it ten years, and if an aggravation of the ordinary penalty is not enough, we'll pass a law of exception. It is always the blind trust in punishment which remains the only remedy of the public conscience and which always works to the detriment of morality and material welfare, because it does not save the society of honest people and strikes without curing those who have fallen a prey to guilt and crime.
The positive school of criminology, then, aside from the greater value attributed to daily and systematic measures of social hygiene for the prevention of criminality, comes to radically different conclusions also in the matter of repressive justice. The classic school has for a cardinal remedy against crime a preference for one kind of punishment, namely imprisonment, and gives fixed and prescribed doses of this remedy. It is the logical conclusion of retributive justice that it travels by way of an illusory purification from moral guilt to the legal responsibility of the criminal and thence on to a corresponding dose of punishment, which has been previously prescribed and fixed.
We, on the other hand, hold that even the surviving form of repression, which will be inevitable in spite of the application of the rules of social prevention, should be widely different, on account of the different conception which we have of crime and of penal justice.
In the majority of cases composed of minor crimes committed by people belonging to the most numerous and least dangerous class of occasional or passionate criminals, the only form of civil repression will be the compensation of the victim for his loss. According to us, this should he the only form of penalty imposed in the majority of minor crimes committed by people who are not dangerous. In the present practice of justice the compensation of the victim for his loss has become a laughing stock, because this victim is systematically forgotten. The whole attention of the classic school has been concentrated on the juridical entity of the crime. The victim of the crime has been forgotten, although this victim deserves philanthropic sympathy more than the criminal who has done the harm. It is true, every, judge adds to the sentence the formula that the criminal is responsible for the injury and the costs to another authority. But the process of law puts off this compensation to an indefinite time, and if the victim succeeds a few years after the passing of the sentence in getting any action on the matter, the criminal has in the meantime had a thousand legal subterfuges to get away with his spoils. And thus the law itself becomes the breeding ground of personal revenge, for Filangieri says aptly that an innocent man grasps the dagger of the murderer, when the sword of justice does not defend him.
Let us say at this point that the rigid application of compensation for damages should never be displaced by imprisonment, because this would be equivalent to sanctioning a real class distinction, for the rich can laugh at damages, while the proletarian would have to make good a sentence of 1000 lire by 100 days in prison, and in the meantime the innocent family that tearfully waits for him outside, would be plunged into desperate straits. Compensation for damages should never take place in any other way than by means of the labor of the prisoner to an extent satisfactory to the family of the injured. It has been attempted to place this in an eclectic way on our law books, but this proposition remains a dead letter and is not applied in Italy, because a stroke of legislator's pen is not enough to change the fate of an entire nation.
These practical and efficient measures would be taken in the case of lesser criminals. For the graver crimes committed by atavistic or congenital criminals, of by persons inclining toward crime from acquired habit or mental alienation, the positive school of criminology reserves segregation for an indefinite time, for it is absurd to fix the time beforehand in the case of a dangerous degenerate who has committed a grave crime.
The question of indeterminate sentences has been recently discussed also by Pessina, who combats it, of course, because the essence of the classic school of criminology is retribution for a fault by means of corresponding punishment. We might reply that no human judge can use any other but the grossest scale by which to determine whether you are responsible to the extent of the whole, one half, or one third. And since there is no absolute or objective criterion by which the ratio of crime to punishment can be determined, penal justice becomes a game of chance. But we content ourselves by pointing out that segregation for an indefinite time has so much truth in it, that even the most orthodox of the classic school admit it, for instance in the case of criminals under age. Now, if an indeterminate sentence is a violation of the principles of the classic school, I cannot understand why it can be admitted in the case of minors, but not in the case of adults. This is evidently an expedient imposed by the exigencies of practical life, and only the positive school of criminology can meet them by a logical systematization. For the rest, indefinite segregation, such as we propose for the most dangerous atavistic criminals, is a measure which is already in use for ordinary lunatics as well us for criminal lunatics. But it may be said that this is an administrative measure, not a court sentence. Well, if any one is so fond of formulas as to make this objection, he may get all the fun out of them that he likes. But it is a fact that an insane person who has committed a crime is sent to a building with iron bars on its gates such as a prison has. You may call it an administrative building or a penal institute, the name is unessential, for the substance alone counts. We maintain that congenital or pathological criminals cannot be locked up for a definite term in any institution, but should remain there until they are adapted for the normal life of society.
This radical reform of principles carries with it a radical transformation of details. Given an indeterminate segregation, there should be organs of guardianship for persons so secluded, for instance permanent committees for the periodical revision of sentences. In the future, the criminal judge will always secure ample evidence to prove whether a defendant is really guilty, for this is the fundamental point. If it is certain that he has committed the crime, he should either be excluded from social intercourse or sentenced to mate good the damage, provided the criminal is not dangerous and the crime not grave. It is absurd to sentence a man to five or six days imprisonment for some insignificant misdemeanor. You lower him in the eyes of the public, subject him to surveillance by the police, and send him to prison from whence he will go out more corrupted than he was on entering it. It is absurd to impose segregation in prison for small errors. Compensation for injuries is enough. For the segregation of the graver criminals, the management must be as scientific as it is now in insane asylums. It is absurd to place an old pensioned soldier or a hardened bureaucrat at the head of a penal institution. It is enough to visit one of those compulsory human beehives and to see how a military discipline carries a brutal hypocrisy into it. The management of such institutions must be scientific, and the care of their inmates must be scientific, since a grave crime is always a manifestation of the pathological condition of the individual. In America there are already institutions, such as the Elmira Reformatory, where the application of the methods of the positive school of criminology has been solemnly promised. The director of the institution is a psychologist, a physician. When a criminal under age is brought in, he is studied from the point of view of physiology and psychology. The treatment serves to regenerate the plants who, being young, may still be straightened up. Scientific therapeutics can do little for relapsed criminals. The present repression of crime robs the prisoner of his personality and reduces him to a number, either in mass imprisonment which corrupts him completely, or in solitary confinement, which will turn him into a stupid or raving beast.
These methods are also gradually introduced in the insane asylums. I must tell you a little story to illustrate this. When I was a professor in Pisa, eight years ago, I took my students to the penitentiaries and the asylum for the criminal insane in Montelupo, as I always used to do. Dr. Algieri, the director of this asylum, showed us among others a very interesting case. This was a man of about 45, whose history was shortly the following: He was a bricklayer living in one of the cities of Toscana. He had been a normal and honest man, a very good father, until one unlucky day came, in which a brick falling from a factory broke a part of his skull. He fell down unconscious, was picked up, carried to the hospital, and cured of his external injury, but lost both his physical and moral health. He became an epileptic.
And the lesion to which the loss of the normal function of his nervous system was due transformed him from the docile and even-tempered man that he had been into a quarrelsome and irritable individual, so that he was less regular in his work, less moral and honest in his family life, and was finally sentenced for a grave assault in a saloon brawl. He was condemned as a common criminal to I don't know how many years of imprisonment. But in prison, the exceptional conditions of seclusion brought on a deterioration of his physical and moral health, his epileptic fits became more frequent, his character grew worse. The director of the prison sent him to the asylum for the insane criminals at Montelupo, which shelters criminals suspected of insanity and insane criminals.