Charles Richmond Henderson.

Introduction to the study of the dependent, defective, and delinquent classes, and of their social treatment online

. (page 24 of 35)
Online LibraryCharles Richmond HendersonIntroduction to the study of the dependent, defective, and delinquent classes, and of their social treatment → online text (page 24 of 35)
Font size
QR-code for this ebook

protected from arbitrary arrest and inconvenience. If, occasion-
ally, a criminal secures immunity by taking advantage of the im-
perfections of human devices for safeguarding the innocent, this
is not an argument against the measures themselves, if, on the
whole, they are necessary for their primary purpose.

The popular impatience at the law's delays and uncertainty of
conviction is not always intelligent, and the mob spirit which
brushes past the slow dignity of courts to inflict punishment with-
out forms of trial is a distinct step backward toward barbarism.
Reason must not act impulsively; it must take on dignity, cau-
tion, formality, so that the evidence may be fully presented, and
the reasoning process in judge and jury have time and leisure for
the complicated process of reflection. This experience of the
danger of short and quick and impulsive reaction against crime
is the explanation of the forms of procedure, and of the various
steps here mentioned.

Arrest. — The offender, or the person supposed to be an
offender, must be secured in legal form, by conservators of the
peace, as judges, sheriffs, constables, policemen.

Warrant. — The general rule forbids the officer to proceed
without official warrant, issued by grand jury or a justice of the
peace. But any citizen may make arrest of one who commits an
offence in his presence, and all are under obligations to assist the
officer in discharge of his duties.

Examination is a preliminary step, taken to ascertain whether
there is reasonable cause to hold the accused to appear before the

272 An Introduction to Criminal Sociology.

grand jury. In trivial cases a magistrate may be empowered to
give a decision and assign a penalty (summary jurisdiction) .

Com7nitment and Bail. — The magistrate may discharge the
prisoner, or set him free on bail, or commit him to jail for
detention awaiting trial.

Grand Jury. — The criminal accusation is tested before a grand
jury at its regular session, and a bill of indictment is found or the
accused is released.

In the indictment the offence must be carefully described, so
that the prisoner may know the nature of the accusation, and be
prepared with evidence and argument in his own defence.

The next step is arraignment before the bar of the court ;
where the prisoner hears the charge of the prosecution and pleads,
perhaps by his counsel, " guilty " or " not guilty."

Plea and Issue. — Upon the plea of guilty the judge may decree
the sentence or take evidence of the degree of guilt. If the pris-
oner pleads not guilty, his attorney may object to the jurisdiction
of the court, demur, offer plea in abatement or bar, or try the issue.

Trial. — A right to a speedy public trial before an impartial jury
is secured by the constitution, and the accused cannot be com-
pelled to go far from home and friends to meet the prosecution.

Judgment. — At last the person found guilty hears the sentence
of the court, and still he may secure release by new trial on writ
of error or by pardon. Only after all these formalities have been
observed is the convicted felon or misdemeanant handed over to
the sheriff for the execution of the sentence — fine, imprisonment,
or capital punishment.

Thus our English law has sought to prevent the action of pas-
sion and prejudice, of partiality and grudge, even in its process of
dealing with public enemies. Shrewd villains, helped at times
by unscrupulous attorneys, may take advantage of weak places in
the law of procedure, and public interests may be sacrificed. But
error is inevitable, and we must not break down the defences of
honest men, falsely accused, for fear that an occasional criminal
may escape.

The Criminal before the Law. 273

The decisions of courts which involve deprivation of Hberty and
the stamp of disgrace must be above suspicion. They must be
dehberate, conservative, and prove themselves worthy of confi-
dence. The criminal himself must be made to see, if he is capa-
ble of seeing, that his sentence is free from revenge, and is just
and reasonable, the product of a reasoning process in which logic
and facts are made superior to passion and sentiment. He must
be made to feel, if possible, that he deserves his sentence and
that it is intended for his lasting good. Every step in the legal
process belongs to the system of social protection and reforma-
tion of offenders, and the methods of procedure should be
adapted to promote the ends of that system, just as much as the
discipline of the reformatory or penitentiary.

6. Medical Jurisprudence. — An important discipHne auxiliary
to the judicial process is the science and art of medical juris-
prudence. In the delicate and doubtful cases on the borderland
between insanity and criminality there is demanded, for the aid
of the court, the knowledge of experts in psychiatry.

The principle of decisions in criminal law is the responsibility
of the accused. The irresponsible cannot be treated as criminals,
although the insane may be dangerous to society and require
seclusion and guardianship. Infants, the insane, idiotic, senile
persons of decayed powers, cannot be punished for violation of
the criminal code. In the doubtful cases brought before judges
and juries, their decision rests upon medical testimony as to the
degree of responsibihty of the accused. Legal accountability
involves a certain degree of intelligence, the power to discriminate
between good and evil, to weigh the consequences of an injurious
deed, and to appreciate the value of the regulation violated.
There must also be ability to direct conduct, according to this
judgment of good and evil. The will is involved as well as the
intellect, because the nature of man is a unity, and there cannot
be a sound mind when any point of the mental life is seriously

The law defines the age at which a child becomes legally

274 ^^ Introduction to Criminal Sociology.

accountable, and the mental state of insanity which forbids a ver-
dict of criminal guilt. The court must decide upon evidence in
each particular case, and part of the evidence may be the testi-
mony of medical men. The physician ought to have, in addition
to the general knowledge of medicine, some experience in dealing
with the insane and some skill in psychiatry.

The court may be compelled to consider not only the various
forms of insanity, but also states of unconsciousness, intoxication,
febrile delirium, and other temporary departures from normal con-
ditions. The physician does not give advice to the court, but
simply testifies to facts as he sees them within the range of his
professional observation.

7. Crime in International Law. — The modern systems of com-
munication and transportation, and the consequent interchange of
goods and ideas, have brought the countries of the earth more
closely together. It is more easy for a criminal to escape from the
scene of his deed and find asylum at a distance and among stran-

In former times there was less necessity than at present for pur-
suit of the offender. Public opinion and law have changed with
changing conditions and relations. The person who attacks the
rights of person and property in one country is the enemy of all ;
he is injurious to humanity, and cannot with safety be granted im-
punity and asylum in any country.

On these common interests are based the extradition laws, which
are usually the result of treaties between governments. In the ab-
sence of a treaty each nation decides for itself on grounds of benev-
olence, comity, or justice. Most of these treaties are the products
of the thinking and negotiations of the last century. Lawrence
defines extradition as " the surrender by one state to another of an
individual who is found within the territory of the former, and is
accused of having committed a crime within the territory of the
latter." It is generally required in these cases that reasonable
prima facie evidence of the guilt of the accused shall be offered ;
that the person shall be tried for the offence charged in the re-

The Criminal before the Law. 275

quest for extradition. If the offence is of a " political character "
extradition is ordinarily refused. But it has been found difficult
to define a " political offence," and nefarious crimes sometimes go
unpunished by means of a plea based on this ground.

Lawrence suggests this test : " If political offences were defined
as acts done for political objects which would be allowed by the
laws of war were the relations of belligerency established between
the doers of them and the state against which they are done, we
should be able to distinguish between those crimes which shock the
conscience of the community, though the perpetrators of them are
actuated by pohtical motives, and acts which bring down upon the
doers no strong moral condemnation, though we may think them
violent and foolish." Under such a rule bomb-throwers, dyna-
mitards, petroleurs, and secret destroyers would be subject to
arrest and extradition.

8. Penalties. — The enforcement of the sentence of a court
belongs, not to the legislative and judicial, but to the executive
and administrative system of the state. The penalties are defined
and limited by law, and more specifically by the court ; and the
general pohcy of administration is determined by law, but all
details of personal treatment from the moment of conviction and
sentence are in the hands of an administrative branch of the
public service. The consideration of this system of administra-
tion belongs to the general subject of penology, whose elements
are to be treated in the following chapters. But many of the
reforms or improvements demanded by our studies of penology
must secure their realization through modifications of the criminal
law ; and, therefore, at each step of the study of penology we are
obliged to review some point of penal law.



" It is said that once the murderers, highwaymen, witches, thieves, and other
similar loose characters appealed to the highest magistracy to do away with
gallows, wheels, and witches' stocks; and they argued that these were dread-
ful objects at which travellers must stop their noses, mouths, and eyes. But
the answer to them v/as, that these things would not be removed until they
had ceased to be robbers, murderers, witches, and thieves.

" Then one of them, prompted by the others, took up the argument and said,
* Gentle sirs, we have not invented pilfering, strangling, necromancy, and
stealing ; and we do not think we shall bring them to an end ; they existed
before us and will remain when we are gone.'

" To this the judges answered : ' You evil fellows must know that we like-
wise did not first build gallows, racks, and stocks, nor did we invent them; and
much less to pleasure you will we banish them.' " — Quoted from Johann Stie-
fler in Jacopi Dopleri, "Theatrum Poenarum Suppliciorum," I., Cap. i, etc.

Penology, the social treatment of the convicted criminal, covers
not only prison science, but the entire system of punishment and
reformation. The prison, while the most conspicuous factor of
this system in modern times, is by no means the sole instrument
for the correction of offenders nor the sole agency of deterrent
influence. The reform school might properly be included here,
but as minors are not in law fully accountable, and as the treatment
of juvenile offenders is more closely akin to the school system,
we shall give that subject a special chapter.

The recommendations of reform and betterment will be suggested
in connection with the description of the actual methods of in-
stitutions already in existence. Improvement is possible only
through gradual transformation, and instantaneous transformation


Elements of Prison Science. 277

is impossible and undesirable. The changes which are here
advised are such as have already been in part tried, and they are
in the direction in which practical men are moving. Each recom-
mendation in this chapter has been tested by conversation and
correspondence with men engaged in administration, although
absolute unanimity is not claimed for each opinion.

1. The Object of the Penal System. — The immediate and
obvious purpose of penal measures is to execute the sentence of
courts pronounced in accordance with law and evidence as to the
facts. The criminal law of the commonwealth determines the
boundaries of the penalty, although much of detail must be left
to the discretion of administrators.

Underneath the law itself is the purpose of the people, in whose
name and for whose welfare law is made. In modern civilized
society, the objects of the law are to secure the community against
the acts of dangerous men ; to awaken wholesome fear of the con-
sequences of unlawful acts by deterrent agencies ; and, if possible,
to reform the offender, or fit him by educational means for the
life of a free and trustworthy citizen.

All pain and loss and deprivation, beyond what is necessary to
attain these reasonable ends, is unjustifiable and irrational; and
society has the right and the duty to employ the degree of pain,
loss, and deprivation which is really necessary to secure these
ends. Even those who reject capital punishment will usually
admit that robbers and rioters may be shot down by policemen
or soldiers, if that is necessary to protect life, property, and order.

2. Institutions whose Primary and Legitimate Purpose is
Detention. — It is necessary to have a temporary place where per-
sons arrested by constabulary or police can be securely held until
a judicial process has determined their guilt or innocence.

The city lockup and the county jail are examples of this kind of
establishment. Their primary and only proper use is the safe de-
tention of persons charged with offences, but not yet legally proved
guilty. They are not undergoing a sentence as convicted persons,
but are simply held for trial. The burden of proof rests upon the

278 An Introduction to Criminal Sociology.

prosecuting parties and the state. The presumption is said to be
that they are innocent until they are proved guilty.

The structure of the lockup and the jail usually corresponds in a
general way with their purpose. They are simply strong cells sur-
rounded by a wall. The "model" lockup or jail has a separate
cell for each prisoner, so as to prevent all association and recogni-
tion. The common corridors and open cell doors of the ordinary
jail are the occasion of grave evils. The wicked and hardened
criminal, the drunken savage, the vile and sensual pander, the cor-
rupting and diseased tramp, are often permitted to communicate
freely with comparatively innocent lads " caught in guilt and first
confusion," or arrested for transgressing an unimportant municipal
ordinance. The old repeater of crime, the professional burglar in
search of apprentices, should have no opportunity of teaching the
youth the ways of crime and of gaining personal ascendency over
them. The separate cell is the only contrivance for avoiding the
evils of contact. It is not enough to have separate divisions for
men, women, and youth, as many seem to imagine. Parsimony
comes to prove extravagant, and stinginess is a cruel wrong, when
pubHc money is refused to meet the cost of a decent and humane
building for the detention of persons awaiting trial. The jail is as
truly a sign of the culture of a community as the church, school,
or art museum. It shows what the people think about justice,
humanity, and evil.

The organization of officers corresponds to the nature of the
establishment. The sheriff", police officers, or some deputy is in
direct responsible control, with such assistance as is thought neces-
sary for the prevention of escape, the care of the building, and of
household affairs.

The county jail should be built and used only for its primary
purpose, the detention of persons awaiting trial. It should not
be a place for keeping innocent witnesses whose testimony is
wanted by the prosecutor, although a separate and convenient
apartment may be provided for this purpose under control of the

Elements of Prison Science. 279

The jail should not be a place for holding the persons of the in-
sane, not even for one night. A detention hospital, or temporary
place of security, with proper attendance, can easily be provided.
Pubhc officers should be legally forbidden to keep the insane in
lockup or jail, and cities and counties should be required to furnish
a temporary hospital shelter until the afflicted patient can be taken
to a special asylum.

The jail should never be used, as it ordinarily is used, for a place
of punishment. All authorities agree that one of the most effective
agencies of increasing crime is the loafing hall of the county jail
in the United States. Idleness and association with bad men are
two of the chief causes of criminal disposition and habit. The
county jail, as generally built and administered, furnishes idleness
and vile associations, and thus makes the establishment a free
school for the training of public enemies at public cost — a semi-
nary of crime with gratuitous instruction in the trade.

" Our jails and city prisons are usually designated by penologists as schools
of crime. Nearly three-quarters of a century ago De Tocqueville emphati-
cally declared that the county jails of this country were the worst prisons he
had ever seen. In 1880, Dr. E. C. Wines, speaking with a comprehensive
knowledge of the subject, said the jails showed little marked improvement
since the days of De Tocqueville, and added that the entire county jail system
of the United States was a disgrace to our civilization. The Executive Com-
mittee of the Prison Association of New York has expressed the opinion that
if an institution were established in every county of the state in which the
processes corresponded with the inscription on the entrance door — 'Vice
and Crime Taught Here ' — the work of manufacturing criminals could hardly
be done more effectually than it is done by our county jail systems " (Dr. W.
P. Letchworth).

When a man is convicted of crime he ought at once to pay his
fine, or be released on probation under suspended sentence, with
guarantees of good conduct, or be set to work at useful labor, and
that in a house equipped and organized for regular industry.
There should be district workhouses, under state control, in vari-
ous parts of the state, to meet this demand.

28o An Introduction to Criminal Sociology.

The floors of city stations are sometimes made the lodging
places of tramps. This is a terrible abuse and full of dangers to
the health of the wanderers, the police, and the public. The prac-
tice should be legally prohibited, and municipal lodging houses,
under strict poHce supervision, should be substituted.

Matrons. — In every jail or city police station where women
prisoners are held for trial, matrons should be appointed to have
immediate charge of them. It is debasing to both men and
women to neglect this provision. Women criminals must be
searched for weapons and papers and evidences of complicity
with criminals, and this should be done by women.

Workhouses. — For the jail, as a place of correction and work-
ing out of sentences, should be substituted the district workhouse.
To this should be sent all misdemeanants, and those convicted of
minor offences whom it is desirable to imprison. Some cities
already provide such prisons, but all of them should be parts of
the state system and should be distributed in various districts so
as to be convenient, and meet the wants of the entire population.
There are few counties large enough in population to require
separate workhouses, and therefore it is most economical to join
several counties in one district for this purpose. This has been
done in the building and maintenance of poorhouses, and there are
legal precedents. A further reason for this plan is that such insti-
tutions are penal establishments and, for administrative efficiency,
are best placed under control of state officers. Labor should be
required in rational and productive industries, with cumulative
sentences instead of the short sentences now prevalent. The
depraved and habitual criminal should be excluded from liberty,
compelled to work for his living, to learn some useful art or pro-
cess, if ignorant, and to be cured, if possible, by prolonged treat-
ment for disease or inebriety.

3. The Prison ; the Institution for Control of the Corrective
Process. — There are some common features in all prisons,
whether penitentiaries, reformatories, or workhouses ; and there
are certain characteristic elements in each. It cannot be claimed

Elements of Prison Science. 281

that there is general agreement in respect to the details of prison
architecture, and there is great variety in the forms of edifices.

Structure; Pj'ison Architecture. — The theory of the founders is
the ruling force in determining the shape of the edifice. There
is opportunity here only to notice a few types. In every prison
there must be means of holding the prisoners securely. The
arrangement of walls, cells, gratings, doors, gates, bars, locks,
watch towers, must be such as to make it possible for a few offi-
cers and guards to control a large number of men, all of whom
crave liberty, and are every moment eager to breathe free air and
go their own ways. Provision must always be made for feeding
the men, for sanitary disposition of waste, for exercise, industry,
instruction, and worship. The prisoner for the time finds his
home, his social world, within the confines of the walls. All the
wants of a human being must be supplied, yet in such a way as to
make the place and mode of life deterrent, and not attractive.
The cell, the kitchen, the shop, the school, the chapel, the hospi-
tal, are common to all correctional establishments.

But these common needs are met in diiferent ways and by
various forms of structure.

The " separate system " calls for a series of large cells in which
the prisoners live in isolation from each other, but not excluded
from a degree of companionship with warden, guards, physician,
teachers, chaplain, and authorized visitors from the outside world.
In his lonely cell the convict passes months or years. There is his
bed for sleep, his table for eating and writing, his bench for work,
and outside a little space for exercise in sunshine and fresh air.

The advantages claimed for this type by its advocates are these :
it removes the man from evil associates ; it trains him as an indi-
vidual ; it increases the personal influence of the authorities and
teachers, and diminishes the influence of criminals ; there are
opportunities for reflection ; the convict who is disposed to cut
loose from the criminal class cannot be identified afterward by
professional criminals, and so led back into evil ways by the fear
of betrayal.

282 An Introduction to Criminal Sociology.

The opponents of the separate or cellular system have urged
that there are great disadvantages. It is a costly method of build-
ing, since the cells must be of solid construction, and should all
be on the ground floor to permit easy access to the exercise
ground. The system does not admit the free use of modern
machinery and steam power ; and the man thus trained to hand
work finds that he is not ready to take his place in a factory with
modern methods of production. The product per man is also
necessarily small, and the financial results unsatisfactory. It is
claimed that the loneliness of solitude is injurious to morals and
to mental and physical health ; that the convict is unfitted for
social cooperation by the habit of working and living so much
alone. The cellular prison sometimes becomes crowded, owing
to the pressure of occupants and the difficulty of securing appro-
priations, and then two or three men must be lodged together
where only one was expected to live ; and in this condition the
separate system has broken down and evil results follow. The
natural life of man is in cooperation with his fellows, and a system
should tend to prepare convicts for freedom.

While the separate system has but one important institution to
represent it in the United States (the Eastern Penitentiary of Penn-
sylvania), there are many in Europe. The International Prison
Congress of 1900 discussed the results of the experiments, espe-
cially in Belgium, and reached the conclusion that the method
must be regarded with favor ; that it has met the expectations of

Online LibraryCharles Richmond HendersonIntroduction to the study of the dependent, defective, and delinquent classes, and of their social treatment → online text (page 24 of 35)