“Whenever any person, convicted in any court of this Commonwealth of any crime, shall be sentenced to imprisonment in any penitentiary of the State, the court, instead of pronouncing upon such convict a definite or fixed term of imprisonment, shall pronounce upon such convict a sentence of imprisonment for an indefinite term; stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time now or hereafter prescribed as a penalty for such offense: Provided, That no person sentenced for an indeterminate term shall be entitled to any benefits under the act, entitled ‘An act providing for the commutation of sentences for good behavior of convicts in prisons, penitentiaries, workhouses and county jails in this State, and regulations governing the same,’ approved the eleventh day of May, Anno Domini one thousand nine hundred and one.”
It will be seen that this amendment puts it into the power of the court to fix any minimum below the maximum, instead of a minimum not exceeding one fourth of the maximum; that it permits the court to name a lower maximum than the one now prescribed by law for any given offense; and that it strikes out the thirty-year clause altogether.
The practical effect of the former change is to destroy in great measure the value and efficacy of the indeterminate sentence as a remedial and reformatory measure. In other words, the amendment restores the vicious inequality of sentences, which is always so apt to breed a feeling of injustice and resentment in the one convicted, and which therefore greatly unfits him as a subject for reformatory treatment. It proceeds upon the long-accepted but false assumption that the court can in every case determine the exact degree of culpability and then adjust the punishment accurately to the crime. This is not only absurd, but it is impossible. A Solomon with all his wisdom could not have done this! As the law now stands, we shall again find, as is indeed already the case, that the same court or adjoining courts may, even under practically identical conditions, impose greatly varying sentences, instead of putting all upon whom sentence is passed on an equality and giving all, under identical conditions, an equal chance, as the law originally contemplated. Thus since the amended law went into effect sentences like these have been pronounced: Minimum 5 years, maximum 7; minimum 8 years, maximum 10; minimum 6 months, maximum 1 year; minimum 6 years, maximum 7; minimum 7 years, maximum 15. In two cases of burglary the one man received a minimum of 5 years, and a maximum of 10, but the other a minimum of only 2 years and a maximum of 5; while in another case an old crook, who had been convicted for the sixth time, and whose new crimes should have brought him a maximum sentence of 16 years, received a minimum of 3 months and a maximum of 1 year. Since the law first went into effect several courts have also imposed flat sentences, without a minimum. This is clearly in conflict with the law, which is mandatory. It does seem as if courts that try and sentence lawbreakers should be the first to have a reverent regard for law!
Again, under the amended law the court virtually determines when a prisoner shall be eligible to parole. This is, however, utterly subversive of the theory upon which the indeterminate sentence is based, namely, that parole is to be granted when a prisoner is believed to be fit to be restored to society as a law-abiding citizen. The time when this may be done no court under the sun can fix, but only those who have the prisoner in charge and under observation, and even they may make mistakes. In the argument on the amended bill before the Senate Committee, it was said by those who opposed the original law, that it conferred judicial functions on the Penitentiary Boards, and that there was not a State in the Union whose statutes prescribed both the maximum and the minimum. But it was shown that under the laws relating to the Huntingdon Reformatory the courts in imposing sentence do not fix the duration thereof, but that the Board of Managers is authorized to terminate the sentence at its discretion, provided the detention shall not exceed the maximum of the term assigned by law for the offense of which the prisoner was convicted; also, that in many States, such as Massachusetts, Connecticut, Ohio, Indiana, Illinois, Michigan, Minnesota and others, the minimum as well as the maximum sentence to the state prison is fixed by law. It seems strange, indeed, that those who opposed the law of 1909 should have forgotten the law as regards Huntingdon; and that they should have been totally ignorant of the laws of other States on a subject that is to-day receiving the serious attention of many of the most thoughtful minds the world over!
On the benefits of a just and equal indeterminate sentence, Dr. Frederick Howard Wines, one of the best informed and most eminent penologists in the United States, expresses himself as follows:
“There is not, and in the nature of things there cannot be, any aid to a truly reformatory discipline like that afforded by the indeterminate sentence. Every prison official can testify to the dissatisfaction and unrest caused by the palpable inequality of sentences; an inequality which neither the legislature nor the courts can avoid or correct. The only equal sentence is the indeterminate sentence, with an identical maximum for all who violate a given section of the code, coupled with identical conditions by which to reduce it to the minimum prescribed by law. Its imposition removes all ground for complaint on this score. It also puts an end to the fallacious hope of an unconditional pardon. The prisoner is given to understand that the date of his release on parole depends entirely upon himself. The authorities desire his release and will help him to earn it; they are not his enemies, but his friends. This disarms him of his hostility to them. He is in a favorable state of mind to receive treatment, and is disposed to yield obedience to them, if they keep their promise to him. This leads to coöperation in the effort made for his restoration, without which a cure cannot be effected. The hope of an early release sustains him under the depressing influence of prison life and stimulates him to exert himself to avoid losing whatever he has gained by diligence and good conduct. He is aided to form habits of industry and obedience, which tend to become fixed. He is trained and transformed.
“Under the indeterminate sentence the prison itself undergoes a gradual process of transformation. The moment that reformation rather than punishment becomes the watchword of the administration, a new spirit takes possession of it. The governor chooses better and abler men to govern it—men imbued with reformatory ideas and qualified to exert a reformatory influence; men of higher education, purer moral character, broader culture, loftier aims in life, greater devotion to their work. These wardens of the new school grow stronger with the passing years; their habit of opposition to everything that is low or crooked or mean or vile lifts them to higher and still higher levels. Failure to show reformatory results means failure in their chosen profession. They have a new responsibility, and they rise to meet it. They are open to every suggestion that can be of service to them in the accomplishment of their difficult task, a task from which an angel might shrink, and in which an angel might rejoice.”
The thirty-year clause of the act of 1909 was designed to protect society against the professional criminal. It is another absurdity of our criminal procedure that we release such periodically to renew their depredations on society. A dangerously insane person we put away until he is cured; and if he is never cured he is never released. We guard society against the contagion of certain virulent diseases. But when the habitual criminal has every now and then squared himself with the State by serving a term in the penitentiary, we again give him his freedom, though he may have hatched out another plot even before he leaves his place of confinement. Some other States have grown wiser. New York and Indiana sentence the habitual criminal for life on a third or fourth conviction; Connecticut to thirty years on a third conviction; but in Pennsylvania a thirty-year sentence, with a minimum not exceeding seven years and a half, seems to have been considered too drastic. Better let society suffer than the criminal!
In amending the law of 1909, which, under its intelligent administration for two years was yielding most happy results, Pennsylvania has clearly been compelled to take a backward step. There was no public demand for a change; those charged with the administration of the law did not desire a change, but opposed it; and there is ample ground for the belief that the change was inspired by reasons of a purely private and personal character.
Nor is the last Legislature to be commended for what it failed to do.
In his report of November 10, 1909, Mr. Bromley Wharton, General Agent and Secretary of the Board of Public Charities, called attention to the needs of the county jails in these words: “This is a matter which has received serious attention at the hands of your Board. The prevailing system of government of the county jails is, in many respects, unsatisfactory. In most of the counties the jails are in charge of the sheriff, who, as a rule, knows little or nothing of hygiene or sanitation. Few jails have yards for exercise, or workshops, which results in the prisoners loafing in the corridors, smoking and playing cards. The filthy and unsanitary condition of some of the jails causes the long-term prisoners to welcome their transfer to the penitentiary.”