From these considerations we may draw the following conclusions: Society stands quietly by, waiting until juvenile criminals grow up and begin to commit serious offences. Our prisons are the true high schools of criminality. The present prison system is the most effective factor in the production of crime; to such an extent is this true, that if we discharge a juvenile offender with a caution, there is less likelihood that he will commit another criminal offence than if we had sent him to prison. The accuracy of these views is now more and more widely recognised; and in the case of juvenile offenders, imprisonment, formerly the rule, is now quite exceptional.
The Question of the Capacity for Understanding the Punishable Character of Criminal Offences.—The notion of the capacity for understanding the punishable character of criminal offences is unworkable in practice. It considers the intellectual element only, whereas in children we have to distinguish between intellectual maturity and moral. Intellectual maturity is commonly attained earlier than moral, and intellectual maturity alone should not render the child liable to punishment. Often a child is mature enough to distinguish what is allowed from what is forbidden, but is not yet strong enough to refrain from the latter course. The most striking example of this is to be found in the case of young proletarians, in whom, in consequence of their premature contact with the manifold factors of life, the mental development is often premature to an astonishing degree, but this intellectual precocity stands contrasted with conspicuous moral immaturity. It is hard to determine what factors have to be taken into consideration in deciding whether a child has attained intellectual and moral maturity. It is essential to examine—(a) whether the child has an accurate conception of the nature of punishment; (b) whether it understands what legal principle is infringed or threatened by its act; (c) whether it possesses such a degree of moral maturity that, through possession of the conception alluded to in section (a), and of the understanding alluded to in section (b), it was competent to refrain from the criminal offence.
In the case of almost all punishable offences another solution of this problem is possible. The more serious the punishable offence, the earlier the age at which a child is competent to understand its character. But, in many cases, it is an obvious inference that a child which from absurd motives has committed so serious an offence cannot possibly possess the requisite moral maturity. Moreover, the three factors we have mentioned cannot be accurately defined. In maturity there are many degrees and stages, passing imperceptibly one into another, and exceedingly difficult to differentiate. The decision of this question will therefore be the work of experts, who will have to keep the child under observation for months. It follows that a decision as to criminal responsibility based upon an understanding of the punishable nature of an offence is, of necessity, and in every case, uncertain and unequal.
To-day, in legal proceedings where juvenile offenders are concerned, remarkable incidents occur. For example, the judge or magistrate asks the child to repeat the ten commandments and the catechism. If the child can do this, it is supposed to possess the requisite understanding. It is left quite out of consideration that the child has probably learned the commandments by rote, without understanding them in the least. Or, again, the judge makes the child describe the act it has committed, and then asks, “Do you know that such acts are punishable?” But in the proceedings in court the child has been made well aware of the fact that it has committed a punishable offence, and yet it may not have known this at the time the offence was committed. In the case of the offences with which the enormous majority of juvenile offenders are charged, namely, theft, fraud, and bodily injury, a knowledge of the punishable character of these offences is apt habitually to be assumed by the courts. This assumption is justified, but it suffices to show the impracticability of the conception.
The School.—The proposal has been made that when petty offences are committed by children of school age, the school should deal with the matter; and that only when a more serious offence has been committed should the case go before the law-courts. In proportion to the seriousness of the case, the punishment should be apportioned by the class-master, by the head-master and class-master together, or by the united teaching faculty. The suggested punishments are—a reprimand, task-work, sitting on the punishment form, being kept in after school hours, corporal punishment, &c. Investigation by other authorities is not to be regarded as superfluous, but in minor cases it will suffice to leave the whole matter in the hands of the school authorities. The following reasons are given for this proposal. In the case of petty offences, the tedious and laborious intervention of the criminal authority is quite uncalled for. It may even be said that we misuse and make light of the criminal authority, when we invoke the aid of this gigantic apparatus, and as a result of this the child is discharged with a hardly perceptible punishment. If the State undertakes to deal with all petty offences, it is left no time for the proper consideration of the graver and more important ones. The aim in view can be attained by less expensive and less elaborate means.
These considerations notwithstanding, this proposal can be approved only to this extent, that in the case of juvenile offences which do not render necessary a coercive reformatory education, it will suffice that the child should be punished by its parents or by the school authorities.
The Reprimand.—Some contend that it is in many cases sufficient for the court to administer a suitable reprimand. But, owing to the peculiarities of the child-psyche, the influence of the reprimand is extremely fugitive. A child so readily forgets. It has not as yet any accurate conception of honour, and completely fails to understand that it is dishonoured by the reprimand. As in the case of any other punishment, the reprimand can as a rule only be administered after the offence has been proved, and the offender sentenced; hence, there is so long an interval between the act and its punishment, that the reprimand becomes quite ineffective, and is in fact no more than an empty formality. Moreover, there are objections on principle against utilising the reprimand as a method of punishment, so that its use is possible only in exceptional cases.
Flogging.—Many persons consider that in the case of certain offences, especially such as betray the existence of a rough disposition, a flogging is the best punishment. But the fact that England, which holds the leadership in the movement for child-protection, continues to employ flogging as a punishment, and the fact that Denmark introduced flogging as a punishment only a few years ago (since then, however, abolished), prove nothing. For the reasons given in an earlier chapter, flogging must be regarded as an excessively noxious method of punishment, and must not even be employed as a disciplinary measure in reformatory schools and prisons.
The Conditional Sentence.—The nature of the conditional sentence is that, conviction having been effected, the sentence is passed, but does not take effect, unless the offender commits another punishable offence; should he fail to do this, he is, by many legal codes, still classed as a non-punished person. The conditional sentence is distinguished from a conditional pardon by the fact that in the case of the latter the punishment is disallowed, not by the court, but in virtue of the right of pardon vested in the higher authority of the government. The conditional sentence is of dubious value in the case of juvenile offenders, because young persons very readily forget; and in the event of their committing a second offence, they now incur a double punishment. Considerations of jurisprudence compel us to regard the conditional pardon also as a measure of dubious value.
In the United States of America probation is employed. This is a postponement of the sentence—that is to say, not a conditional sentence, nor a conditional release from punishment, nor even a postponement of punishment. In this way it is hoped that condemnation and punishment of the child will be altogether avoided. The court, at its free discretion, can commit the child to a reformatory without having first passed sentence. If the child does not mend its ways, it is brought up for judgment, and sentence is passed. The system is an unmistakable improvement upon the unconditional sentence. But the conditional sentence can be imposed upon such terms that it is associated with a protective supervision, and that the conditionally-remitted punishment will be reimposed, not only in the event of the commission of a fresh criminal offence, but also in the event of general misconduct.