The Elements of Child-protection

by Sigmund Engel

The European system of conditional remission of punishment consists in a conditional release of the prisoner after he has served a portion of his sentence. If he makes a good use of his freedom, the remainder of his punishment is entirely remitted, but if he misconducts himself he must return to prison and serve out his term. Release on parole in the United States of America is distinguished from this system by the fact that in the former case, after its release, the child remains subject to educative supervision; and it is distinguished from probation by the fact that in the case of probation a portion of the punishment, or of the reformatory education, as the case may be, has already been undergone.

Probation and release on parole are preferable to the European system; for from this last, since it is not associated with any serious attempt at educative supervision, no particular good can be expected. It is eminently desirable that the criminal legislation of every civilised State should adopt these systems of probation and parole, with whatever modifications may be found necessary in individual countries; and the tendency of evolution is unmistakably in this direction. In the majority of the States of the American Union, the probationary system is in force, and in many of these States it is applicable even in the case of adults. In most of those States in which it is in force, it is associated with the system of Children’s Courts; but in a few these Courts are as yet unknown.

The Indeterminate Sentence.—In Europe, in view of the sacred character of individual liberty, it is the general opinion that the law courts should have no power to sentence an offender to imprisonment for anything but a definitely fixed term. But this system is in direct contradiction with the object of the punishment. The criminal is to be regarded as an abnormal, diseased individual, whose punishment must last until he is cured. He must for the most part be treated as we treat one suffering from mental disorder, who is committed to an asylum for an indeterminate period. The work undertaken by the State in respect of the majority of criminals is to effect their physical and moral cure. It is therefore absurd on the face of the matter to specify beforehand a precise period within which the cure must be completed. It is quite impossible for the judge, when passing sentence, to determine how long it will take to attain the desired end. When and if that end is attained can be determined only by those to whom is entrusted the administration of the punishment—persons continuously, and for a long period, associated with the prisoner. The duration of the punishment must depend, not upon the offender’s conduct at the time the offence was committed, but upon his conduct after he has been sentenced. When an offender is serving out a fixed sentence, the only thing that interests him is how much of the period he has got through, and how much still remains before him. But when the sentence is indeterminate, it will be his whole-hearted endeavour to conduct himself in such a way, to effect such an improvement, as to obtain his release.

At the present day, there is no country in which sentences are altogether indeterminate. Even in the United States of America, where the indeterminate sentence prevails, a maximum term is specified for the prisoner’s detention. The greater this maximum, the more powerful will be the effect of the indeterminate sentence. The younger the prisoner, the more powerful also will be the effect of the indeterminate sentence, for the younger the prisoner, the more has he to expect from life. In America the experience of the working of the indeterminate sentence has been so satisfactory, that there is a general desire that the specified maximum sentence should be completely abolished. But as yet the efforts in this direction have been unsuccessful.

In the case of juvenile offenders, the arguments in favour of the indeterminate sentence are even more powerful than in the case of adults. The aim of imprisonment is to exercise an educative influence upon the child, and it is impossible to determine beforehand how long a time will be required to complete the necessary education. The indispensable foundation of every sound penal system for juvenile criminals is the institution of the indeterminate sentence. We find, in fact, that in the United States of America the reformatory system is inseparably associated with the indeterminate sentence; and in many European countries, when a child is sent to a reformatory, no definite term is specified beforehand.

Should Punishment be Rendered more Severe.—The classical legal system is defective. But to many it appears that its present failures depend upon the excessive mitigation of punishment; such persons contend that we can expect a diminution of crime only if we render punishments more severe. Many even demand the reintroduction of corporal punishment. More severe sentences are indispensable in the case of the habitual criminal; but in the case of occasional criminals and juvenile criminals, no good results are to be expected from any such measure.

The Coercive Reformatory Education of Youthful Criminals.—The coercive reformatory education of youthful criminals has in essentials the same character as the compulsory education enforced by the ordinary processes of the civil law. Its central idea is the following. The child which for one reason or another stands in need of a coercive reformatory education, whether that need is manifested by the commission of some punishable offence or in any other way, and whether the need arises in consequence of neglect on the part of the child’s parents or in consequence of that of some other person or persons, must receive the education it needs. The child that requires a coercive reformatory education because it has committed a punishable offence does not differ in any important respects from a child which has not committed any such offence, but is in a state of neglect. The latter child also should be subjected to a coercive reformatory education; on no account should we wait until it has committed a punishable offence, and has in this way manifested its neglected state in a manner that cannot be overlooked. Besides, neglected children and juvenile criminals belong to the same class of society, and in the case of both the need for a coercive reformatory education arises out of like conditions. Thus, the question of the coercive reformatory education of juvenile criminals is not one appertaining merely to the province of criminal law, but, in conjunction with the question of the coercive reformatory education of neglected children, it is also a matter of civil law and local administrative activity. The care of youthful criminals is, in the first place, a matter for the local authorities that are responsible for the care of neglected children—that is to say, for the Boards of Guardianship [see [note to page 74]], and for the Poor Law Boards. The education of juvenile criminals differs but little from the education of the children cared for by the Poor Law authorities; and thus the question arises whether the care of juvenile criminals necessitates the existence of ad hoc boards to administer this special department of the criminal law.

Since the middle of the seventeenth century, it has been the tendency to send troublesome juveniles to institutions; and at the outset they were sent to poorhouses and workhouses to mingle with adult vagabonds and prostitutes. Not until towards the end of the eighteenth century did people begin to recognise that it was essential to separate heterogeneous elements. But even at the present day, in many countries, reformatories are so far from being worthy of their name that, like prisons, they are schools of corruption. Many reformatories have still the aspect and the organisation of barracks. In such places the children are subjected to a rigid discipline. They are managed very strictly, and yet the children are in some respects better off than free workers of the same age; they are compelled to be diligent, clean, and healthy. But their life is not truly living. The children receive instruction, but no real education. They work, but acquire no love for work. When they are discharged from the reformatory they are even less inclined to work than they were when they entered the institution; they are further corrupted, they renew outside the unwholesome friendships they have contracted within the walls, and commonly carry out, after they leave, the crimes they have learned and planned during their stay at the “reformatory.”

In real advances in reformatory methods, England and the United States of America have led the way. But in the case of the former country, true progress in this respect dates only from the latter half of the nineteenth century; and in the case of the latter country, only from the year 1870. In other countries, even to-day, sound ideas have found in this matter but little application. This slow progress probably depends upon the difficulty of getting rid of the influence of the older legal theories, and upon the difficulty of assimilating the idea that a reformatory must be something totally different from a prison.

Institutional Education versus Family Education.—Which is preferable, institutional education or family education? There is much to be said on both sides of this question. Unquestionably, in the case of juvenile criminals and neglected children the advantages of family care are less conspicuous than they are in the case of abandoned children. The accumulation, under one roof, of children of the former categories involves the close approximation of numerous injurious germs, which would less readily develop if they were dispersed. Moreover, for such children it is even harder to find suitable foster-parents than it is for those who are simply abandoned. Few are willing to undertake the difficult task of bringing up such children, and fewer foster-parents still are in a position to give them a suitable upbringing. The strict handling they require is much easier to enforce in an institution or a colony than in an ordinary family. There is often good reason to be afraid that the juvenile criminal or neglected child, if boarded with a family, will corrupt the younger members of that family.