The Criminal

by Havelock Ellis

With the indeterminate sentence must always be associated conditional liberation—i.e., liberation by ticket-of-leave or on parole, liable to revocation in case of misbehaviour. It is not, however, necessary to insist on this, as the principle has long been practically recognised in England and elsewhere. It exists in Belgium, some of the American states, Hungary, Saxony, Switzerland, the Grand Duchy of Baden, etc.

A very desirable accompaniment to any system of dealing with criminals is a sound system for their registration and recognition. The method originated by M. Alphonse Bertillon is now adopted in France, Russia, Japan, Spain, Italy, the Argentine Republic, and some parts of Germany, and it is being adopted in several of the United States. By this method the height, the length and width of head, the measurements of left foot, of outstretched arms, of trunk when seated, of fourth finger of left hand, of left arm, length of ear, colour of eyes, and any marks are recorded, together with the photograph, profile and full face. The method of classifying the photographs in its simplest form was thus generally described by M. A. Bertillon a few years ago (Revue Politique et Littéraire, 28 April 1883). Suppose we have 80,000 photographs. They are first divided according to the sex, the men on one side, the women on the other. These latter do not reach 20,000. The 60,000 men who remain are divided into three classes according to height; the short numbering about 20,000, the middle-sized numbering about 20,000, and the tall 20,000. Each of these divisions is divided into three series according to length of head. These new divisions, to the number of nine, contain rather more than 6000 each. Each of these sub-divisions is then divided into three groups according to length of foot, each group containing about 2000 photographs. Each of these groups is again sub-divided into three, according to length of outstretched arms (grande envergure). Each of these groups contains about 600, and they are further sub-divided with reference to age, colour of eyes, and length of middle finger. Thus by means of four new anthropological characters (sex, height, age, and colour of eyes have long been noted) 80,000 photos can be easily divided into groups of 50. The measurements can be taken in two or three minutes, and require no special intelligence. When an individual stands as regards height at the border of two classes, he is put into both.

Thrusting a man into prison, when everything is said, is a measure only to be taken with the utmost circumspection, after consideration of the individual’s antecedents, and a clear conception of the ends to be attained by imprisoning him. To relegate almost indiscriminately to prison the miscellaneous army that file through a police court is an ignorant and dangerous policy; there is little hope of good result, and a considerable chance of evil result. If the period is for a few weeks only no permanent beneficial end can be anticipated, even under the best of conditions; while during so short a period no useful work can be commenced, so that there is a direct incitement to idleness. When the prison has been decided on, the period of detention must be indefinite, according to the results attained in the opinion of those competent officers specially appointed to form such decisions, and the liberation will be conditional.

It is a wholesome sign of progress that in so many European countries substitutes for the prison, in the case of minor offenders (i.e., occasional criminals), are being anxiously sought and gradually adopted. One cannot avoid seeing how many individuals are unnecessarily condemned even to penal servitude. In our convict prisons there exists a very excellent plan, entirely in accordance with rational principles, of forming what is called a “Star” class of convicts—that is, a “special class of those not versed in crime.” The authorities “cannot speak too highly of the general tone and behaviour” of these men, their “decidedly good disposition,” “keen anxiety to gain a knowledge of some sort of trade,” sense of “the moral degradation in which they have placed themselves,” etc. Their industry and freedom from prison offences are so marked, “and the special reports on the subject have been so uniformly to the same effect, that it is no longer necessary to call for such reports.” This is all very gratifying, but it is not at all clear that these men should have been convicts at all. There are other and more satisfactory methods of dealing with such persons.

It is not possible here to do more than touch slightly on the various methods of dealing with occasional criminals. The one that approaches most nearly to imprisonment is the method of pronouncing suspended sentences of imprisonment to hang over the inculpated individual during a limited period, at the end of which period, if his behaviour is good, the sentence lapses. Imprisonment is thus, as Mr. Tallack remarks, commuted into liability to imprisonment. This plan, applied to minor offences, was adopted in Belgium in 1888, and is in use in some of the United States. In England the First Offenders’ Act enables the magistrate to accept the prisoner’s own recognisances to come up for judgment if called upon, but the law does not seem to be applied so frequently as is desirable. The old English system of recognisances, in which the guilty party deposits a sum of money, is an excellent guarantee to society against his recidivism, and is deserving of extension to all those cases to which it may prove adapted. This plan has been adopted in the United States and in Denmark. A very large proportion of small offenders can be dealt with adequately by means of a fine. This should not be of too trifling a character when the offence has been frequently repeated, and the means of the offender are ample. Nor does it appear desirable that the offender should be allowed at will to choose between fine and imprisonment. The notion of reparation should be combined with the fine when possible, the offender, as Garofalo proposes, paying an indemnity to the injured person, and a fine to the community. With our abstract and impersonal method of dealing with crime, we are much too apt to forget the recompense that is due to the injured person. Féré has suggested that the State ought to undertake this reparation; the community, he argues, has failed in its duty of protecting one of its members, and it ought therefore to repair the injury which it has not known how to prevent. Crime being largely the result of social conditions, the damage it causes should be supported socially by the society which generated the individual. A more practical first step, however, seems to be a recognition that the criminal should be bound to repair the damage he had caused. This reparation should be on a very liberal scale, and with due regard to the anxiety or suffering inflicted on the injured party. When the offender is not in a position to pay money, there should, as Prins points out (and Sir Thomas More long before him), be suitable provision to enable him to give so many days of his labour to work out his penalty and reparation. In several European countries imprisonment for mendicity, vagabondage, and other minor offences, has been abolished, and compulsory work substituted: this is a reasonable change.

In the slightest cases of all, every end of social protection should be attained by a formal “caution.” The publicity which this involves is itself, under modern conditions of life, a sufficient safeguard.

The special and very numerous class of habitual drunkards must be dealt with by special methods. The method, if method it can be called, of treating such cases by a few days’ imprisonment is glaringly ineffective. It is a waste of public time and money, as well as a danger to the individual himself and to society. Habitual inebriates can only be dealt with fairly when they are recognised as diseased persons, to be treated on rational principles, and to be saved, whether they will or not, from doing injury to society and to themselves. It is incomprehensible that in so drunken a country as England this question should not before now have had serious attention, instead of being left to voluntary agency. To leave habitual alcoholism and its results to voluntary agency is as reasonable as it would be to leave the care and control of the insane to voluntary agency. The case for the control and treatment of the inebriate is, indeed, considerably stronger than that for controlling the insane.

To sum up briefly the points in the treatment of the criminal which have been reviewed in this chapter:—

Capital punishment is disappearing. There is, however, no reason to hasten unduly its complete extinction, because lifelong imprisonment, under existing conditions, is frequently less humane, and is not of greater value for purposes of social protection.

The prison needs to be made a far more active and thorough instrument of social reformation than it is at present. Great circumspection must be shown in selecting the individual whom it is desirable to send to prison, but when selected he must be retained until there is reasonable presumption that he will no longer be dangerous to society. In place of mere routine and surveillance, he must be subjected to intelligent and energetic treatment. While he should usually be guarded from contact with his fellow-prisoners, it is desirable, with due restrictions, to promote his intercourse with selected persons of the outside world. His conditional liberation should be delayed until he can be placed in some situation which will enable him to earn his own living. The plan of fixing beforehand the period of the prisoner’s detention appears to have nothing to recommend it, and should be entirely abolished.