The Elements of Child-protection

by Sigmund Engel

An examination of these facts, and the study of the child-mind, have led to the conclusion that criminality in youth is the main source of the general stream of criminality, and that we cannot depend upon our present methods of dealing with crime and criminals to dry up this source. Hence even the dogmatists are coming more and more to admit the failures of the classical criminal law, and to recommend that mere punitive methods should give place to the educative treatment of criminal offenders, punishment being used, if at all, only as an educative influence. Even in those countries which lag behind the rest in development, this conception begins to influence legislation. This conviction that youthful offenders require not punishment, but education, was acquired by mankind many decades before it was generally realised that it is equally true of adult criminals—that they should not be punished, but improved, or, if unimprovable, rendered harmless. It is understood that those punishments only can be justified which exercise a lasting educative influence, by removing the child from its former environment into a better and healthier one. It is recognised that the difference between punishment and education is not absolute, but relative merely, inasmuch as education cannot dispense entirely with punitive methods, and punishment, properly utilised, exercises an educative influence. It is also now understood that by the proper legal treatment of youthful criminal offenders, many thousands of children can be saved every year from the permanent adoption of a career of crime, and their working powers thus preserved for the community. This was seen first of all, where it more especially applies, in the case of manufacturing towns. For the reformation of criminal and neglected youth by educational methods, the first steps were taken, and taken most effectively, by the country in which the modern manufacturing system first made its appearance—England, to wit. At the present day it is the great manufacturing countries, England, Belgium, France, and the United States of America, in which most is done in this regard.

Special Legislation Dealing with Youthful Criminals.—It is to that portion of the newer criminal law which concerns youthful criminals that the dogmatists object most strongly. They complain that it endangers very seriously personal liberty and parental authority. There are many who argue to-day against coercive reformatory education, on the ground that personal freedom and parental authority should be inviolable. We even find some who attack modern ideas from the standpoint of various legal theories. Such persons tell us that coercive reformatory education interferes more than punishment with the child’s individual liberty, and that it absolutely ignores parental authority. The criminal authorities have absolutely no right, in their view, to supervise a child’s education, but merely to punish it or to set it at liberty. But this portion of modern criminal jurisprudence does not aim merely at the suppression of juvenile criminality. It is likewise an experimental laboratory, as it were, for the testing of new institutions, the success or failure of which is eagerly awaited by criminal jurists. If any institution thus tested proves successful, its application is immediately extended to other portions of the criminal law. In the United States of America, for example, the method which has been found successful in the case of juvenile offenders is now being applied in the case also of young adult criminals.

Proposals Bearing on the Question of Criminal Responsibility at Different Ages.—(a) A radical proposal for reform is that the distinction between juvenile and adult criminals should be abolished, and that, instead, criminals should be classified simply as educable or non-educable. This proposal is impracticable. In consequence of the application of the principles of individualisation and classification, the distinctions between the various age-classes of criminals become, indeed, of less and less importance. There may even be a little truth in the assertion that in a large country, owing to racial and climatic differences, no uniform classification of offenders according to ages can be adopted. And yet the definition of age-limits in the case of criminal offenders is indispensable. In a few cases such distinction may render the appropriate treatment of offenders more difficult, but in the great majority of instances they facilitate the work of judges and magistrates, and afford a means of individualisation.

(b) Liability to punishment is almost universally regarded as beginning, at the earliest, at the age of fourteen. This is the period of the commencement of the puberal development, of the cessation of school attendance, when the child passes from the life of the family and the school to a life in the open, and becomes competent to work for a living.

(c) Many writers demand that the period of nonage, as far as criminal responsibility is concerned, should be extended. They do so on these grounds. The physical development of the individual is not completed till the age of twenty-three or thereabouts. It is inconsistent that one who is still a minor from the point of view of civil law should be regarded as of full age from the point of view of criminal law. Civil law is an affair merely for the owning and well-to-do classes; criminal law arises mainly in consequence of poverty. Hence we may say that in general civil law is created for the former class, and criminal law for the latter. There is certainly at any rate an appearance of class-justice in the assertion that those belonging to the poorer classes at eighteen are mature enough to be sent to jail, whilst those belonging to the well-to-do classes are incompetent to make a binding legal engagement to pay half-a-sovereign until they are twenty-one or twenty-four years of age. But the proposal is impracticable. Its adoption would undoubtedly involve grave dangers to public order, since the age-class of persons from eighteen to twenty-one is characterised by a high and a serious criminality-rate. The result of educative measures in the case of young criminals of such an age is not a very great one, for the formation of the character is by this time far advanced. To extend the age for a coercive reformatory education to include the last years of civil minority would be devoid of any justification upon accepted legal principles. There is no reason why the period of criminal nonage should coincide with the civil. In the first place, a much higher degree of intellectual capacity is requisite to the understanding of a transaction in civil law than to the understanding of the punishable character of an offence. In the second place, a punishable offence is also an offence against public order, but matters of civil law usually concern individuals only. In the third place, as regards the capacity also for infringements of the civil law, narrower limits are imposed than in the case of the capacity to enter into a bargain.

The Defects of our Present Penal Methods.—The punishments imposed by our present penal system are quite unmeaning. Not only do they exercise no educative influence, but they even hinder education. In the case of children they are not deterrent, first, because children act on impulse, and, secondly, because they have no accurate conception of the nature of these punishments. To many children imprisonment seems the same sort of thing as being “kept in” at school, and they quite fail to recognise its seriousness. Punishment by fine is supposed to make the offender suffer in proportion to the suffering he has inflicted by his offence. But how can the judge or magistrate, above all where children are concerned, accurately estimate the fine necessary to achieve this result? The difficulties of rightly apportioning the punishment are equally formidable in the matter of imprisonment as in the matter of fine.

(a) In the punishment of juvenile offenders, in modern times, the fine is really altogether inapplicable. Ninety per cent. of juvenile offenders are altogether without means. What does a fine matter to one for whom it is paid by another? Young people, as a rule, do not yet understand the value of money. If the offender is a person of property, then he has no occasion to dread a fine; or even if the fine were proportionate to his means, the juvenile offender would not understand its significance until after he had attained his majority. But we cannot depend upon the efficacy of a punishment which does not become effective as punishment until after the lapse of years. If the juvenile offender has to pay the fine out of his wages, he loses all desire for work. The majority of youthful offenders belong to the poorer classes, and are not in a position to pay the fine themselves. The parents will give their child a lecture if they have to pay the fine, but this will by no means attain the object of the punishment. Moreover, if the relatives pay the fine, they are unjustly punished, and may revenge themselves on the child.

(b) Punishment by imprisonment costs the State millions of money every year, and yet does no good. It is not possible, everywhere and always, to separate the young prisoners from the adults, although it is absolutely essential that this should be done. A society, such as that of the prison, in which the worst are the most respected, and in which the innocent are despised and corrupted, is not suitable for young persons. If the juvenile offender is kept in isolation, his mental health will suffer; moreover, his loneliness impels him to seek the society of the other prisoners, and the greatest possible care will not succeed in preventing such association. It is maintained by some that imprisonment exercises a deterrent influence upon children, and that a coercive reformatory education does not. But the reverse of this is true. Not even the longest term of imprisonment which can be inflicted for juvenile crime will be found to exercise a deterrent influence; and it is the custom of the courts, in the case of juvenile offenders, to inflict, not the maximum, but the minimum sentence permissible by the law. The child is not afraid of the prison, because it is better treated there than outside; in prison it receives shelter, food, clothing, and warmth without having to pay anything, without having to work hard, and without being ill-treated. But the child is afraid of a coercive reformatory education: in prison the child is apathetic, its life being meaningless and without aim; but the working discipline associated with a coercive reformatory education is regarded by the child as a much more serious matter, being new and strange, needing continuous attention, constant diligence, and hard work. For many proletarian parents, to commit their child to prison is an alleviation; the parents then have one trouble the less, and the family income goes a little farther. Imprisonment brands a child. When it has served its time, employment is often extremely hard to obtain, for most employers very naturally dread that such a child will commit another criminal offence while in their employ. The child, finding it impossible to earn an honest living, is forced into the paths of habitual crime. Young people, much more readily than adults, accustom themselves to new conditions of life. In view of this fact, there is great danger that the youthful offender will become altogether indifferent to imprisonment; that the punishment will induce a condition of immunity to its effects. A child which has been once in prison is likely to become a recidivist, if only for the reason that it will now have lost the dread of prison which it had in the days before its first offence was committed. We learn from statistics that the majority of youthful offenders are sentenced to short terms of imprisonment. They regard these with the greatest indifference, and are not in the least afraid of them. Such short terms of imprisonment do not protect society; and the possibility of their exercising any educative influence is excluded by the fact that since the term of imprisonment is short, and the cost of transport considerable, the child will be confined in the nearest prison, instead of being sent to some special and suitable place of confinement. Many children are even pleased at being sent to prison, regarding their sentence as a desirable interlude in school work. This difficulty is not met by postponing the term of imprisonment to the holiday season. The child leaves prison to return to school. If it is despised by its schoolmates, it sinks lower; if it is regarded as a hero, the effect is no less corrupting.

Imprisonment for a child must take no other form than that of education under strict discipline. If a short term of imprisonment is ordered, solitary confinement is essential. If a child must be sent to prison, the use of the common prison is inadmissible, and a children’s wing in a general prison is hardly better; a special prison for children is essential, if only for the reason that, unless we have a comparatively large number of young persons assembled together, it is more difficult to arrange for the proper distribution of occupations (manual work of various kinds).