As at present advised we cannot consent to this view. Few evils arise, under any system of government, for which there is not a choice of remedies; and if it is made evident that under the application of a sound principle of prison-discipline, cases occur in which the legitimate ends of punishment are defeated, or at least not answered, the first question would be whether these cases are numerous and important enough to impair our confidence in the principle; or whether the exceptions are not necessarily incident to any general system, and such as cannot be provided against; or whether the remedy, if practicable at all, may not be applied without any infringement of the general principle. A compromise between two methods of convict management, so radically and essentially diverse as separation and association, seems to us entirely fanciful.
These general observations must serve to introduce a very brief notice of the Report of the Physician of the Eastern State Penitentiary for the six months ending July 1, 1851. That day closed seven years of laborious and faithful service by Dr. Given in this important institution. His reports, during that period, have been frequently noticed in the pages of our Journal, and have contributed essentially, not only to the improvement of the particular institution under his care, but to the general interests of humanity. Few if any documents of this class, embody a larger amount of valuable information, or are entitled to more consideration.
The author not being prepared to serve the interests of a party or a clique, nor to defend a favorite theory, his reports have uniformly taken independent ground, and must be regarded as the honest record of the results of professional experience and observation.
We understand the present and final report of Dr. G., as unequivocally and emphatically favorable to convict-separation. That there are some prisoners on whom it bears with peculiar severity is a matter of course. No species of punishment is exempt from such inequalities. They are less prevalent, however, under the separate discipline than under any other, from the very fact that the isolation of the prisoner from his fellows, allows us to vary the minuter conditions of the discipline in peculiar cases, without exciting murmuring and discontent among less favored parties. That a relaxation of rigid discipline in an individual case, no matter how peculiar, if it becomes notorious works wide-spread mischief, is fully shown in the experience of the English prisons.[2]
We do not understand Dr. Given to maintain that the class of convicts, whose mental weakness unfits them for the discipline of separation, would be any better off in a congregate prison, unless they were allowed “to converse with hardly any restriction.” So that we are left to conclude, that some peculiar method of treatment, embraced in neither of the prevailing systems must be devised to suit the specific case of weak-minded culprits, in a separate prison, or we must expect them to become deranged. Now we humbly conceive, that the remedy for the supposed grievance in such cases is in the hands of the court, and should be applied in the terms of the sentence, and not in the process of its execution. The mental vigor of a culprit is as legitimately a subject of investigation, as his moral habits and physical constitution. If he borders on that state of imbecility which would exempt him from moral responsibility, the shade of guilt in which he is involved will be scarcely perceptible, and the punishment would of course be proportionably light. If on the other hand, the character and method of his crime indicate ingenuity in contriving and vigor in executing his criminal purposes, though he may be below par in his intellectual capacity, he must take his chance with other offenders, who may be better able to endure the retribution than himself. It is so all the world over. The punishment which many sins carry in themselves, does not adapt itself very nicely to individual constitutions and temperaments. One slave of the intoxicating cup may have far greater powers of resisting the temptation to indulgence than his comrade, yet they are found wallowing in the same gutter. Men of limited capacity have a much harder struggle for their daily bread than their more capable neighbors, but in the event of their feloniously taking what does not belong to them, we do not find special laws are enacted to meet their case. So in families, schools, and larger communities, general laws are established which operate unequally, but are on the whole salutary and wise; and so must it be in the discipline of every prison. The same degree of restraint, privation or punishment bears much more severely on some than on others, and while humanity requires us to alleviate, as far as possible, the miseries of public prisons, it can hardly expect us to forego the eminent advantages of a system of discipline, because it does not adapt itself to every grade of intellect and education. No part of the machinery of civil government is capable of such a nice adjustment.
But assuming that provision should be made for the necessities of convicts, who lack ordinary mental vigor, and whose condition is easily detected by an experienced observer, we have the unqualified testimony of Dr. G., that with such provision, the Pennsylvanian system intelligently administered for moderate periods is entirely safe for mind and body. This opinion, after seven successive years of close, daily observation, by a resident physician, is certainly very conclusive. As to the phrase, “moderate periods,” it is well known that our Journal has uniformly advocated a reduction in the terms of imprisonment for by far the larger portion of crimes,—connected however with efficient checks upon the pardoning power.
But Dr. G. finds among the convicts of the Eastern State Penitentiary, as he would find in any other similar prison, “a certain proportion who have not sufficient mental vigor to resist the enervating tendencies of the discipline.” Upon examining the report for a more particular description of the class, he had in view, we find, that “in many of them the mental deficiency is so slight, as hardly to challenge casual observation, or to prevent them from following successfully the ordinary pursuits of life.” Dr. G. would not, therefore, exempt these persons from responsibility for their crimes. But how shall they be treated in a separate prison? What is needful to “enable them to resist the enervating tendencies of the discipline,” or in other words, how, in administering the discipline, shall we provide for that lack of mental vigor which exposes them to suffer under it? Dr. G. replies, “By sufficient social intercourse with qualified officers to preserve the natural strength of their minds.” Is this better than “associating them in workshops during the day under vigilant supervision, as in congregate prisons?” Dr. G. replies, “Yes, infinitely preferable.” Why then is not this simple counteracting agency employed, wherever the evil is supposed to exist? Dr. G. replies, “The expense of such an arrangement will, I fear, render it impossible.” And what is the expense? The report does not furnish any estimate, nor have we the means of forming one. But of one thing we feel confident, viz., that if the addition to the corps of officers of one or two men of suitable qualifications for the purpose, would be the means of perfecting the system of punishment, or of securing, in a higher degree, the humane purposes of the government in inflicting it, it will not be withheld. We should be slow to believe such a measure would fail, for so paltry a consideration as one or two thousand dollars a year, which would be the outside of the expense.
Suppose it were clearly the duty and interest of the government (and its duty is always its interest, as it is that of individuals) to provide for the unfortunate class of convicts to which Dr. G. refers, it would become a question how far it would be needful to abridge the average term of imprisonment at present suffered, in order to avoid the mischief which his report discloses. For it will be observed, that there is quite a difference of opinion as to the time within which the supposed injurious effects of seclusion are developed. Even the opponents of separation have generally regarded a sentence of from twelve to eighteen months as entirely safe. Dr. G. very properly considers the age of the convict as entitled to much consideration in determining the period of his confinement; and we should be quite disposed, at first, to fall in with his opinion, that “unless for the gravest offences, the sentence of minors should seldom exceed a single year;” and yet when we look around us and observe the boldness, the ingenuity and the malignity which often characterize the criminal acts of minors in our times, we can scarcely persuade ourselves that extraordinary lenity could be safely shown to them. A severer discipline in an institution that should receive them at an earlier stage of their career, might often check their criminal propensities, and put them upon a praiseworthy course; but when they become reckless of life, and property, and public peace, and boast themselves in feats of iniquity which matured convicts would scarcely attempt to excel, we should be slow to relax the rigour of punishment, except in cases of manifest infirmity of body or mind.
“In the second year of imprisonment, the bodily and mental vigor of convicts generally begins to decline, though they may struggle on for an indefinite period, without having any actual disease developed. In all cases, but more especially when the sentences range between two and ten years, the prisoner should be closely watched; and when the slightest symptom of failing strength appears, he should be immediately put to some outdoor employment, and there kept until his health would be re-established, when he could be again returned to his cell. If this principle would be strictly acted upon, it would render the longest sentence comparatively harmless.”
We are gratified with such clear and unequivocal testimony to the safety of convict-separation; for we look upon the resort to out-of-door exercise, in special cases, as so perfectly practicable and so entirely in keeping with the principle of the system, that we could scarcely reckon it as a condition or exception. It is of the same character with a precaution respecting air, apparel, bathing, &c. Indeed we do not suppose Dr. G. himself has a particle of doubt, that all needful out-of-door exercise can be given to every convict whose health requires it, as easily and as consistently with the most rigid separation as an extra blanket, or a new article of diet.