Part 2

Under the present enlightened opinion which sees that not punishment but the protection of society and the good of the criminal are the things to be aimed at, the judge's office would naturally be reduced to the task of determining the guilt of the man on trial, and then the care of him would be turned over to expert treatment, exactly as in a case when the judge determines the fact of a man's insanity.

If objection is made to the indeterminate sentence on the ground that it is an unusual or cruel punishment, it may be admitted that it is unusual, but that commitment to detention cannot be called cruel when the convict is given the key to the house in which he is confined. It is for him to choose whether he will become a decent man and go back into society, or whether he will remain a bad man and stay in confinement. For the criminal who is, as we might say, an accidental criminal, or for the criminal who is susceptible to good influences, the term of imprisonment under the indeterminate sentence would be shorter than it would be safe to make it for criminals under the statute. The incorrigible offender, however, would be cut off at once and forever from his occupation, which is, as we said, varied by periodic residence in the comfortable houses belonging to the State.

A necessary corollary of the indeterminate sentence is that every State prison and penitentiary should be a reformatory, in the modern meaning of that term. It would be against the interest of society, all its instincts of justice, and the height of cruelty to an individual criminal to put him in prison without limit unless all the opportunities were afforded him for changing his habits radically. It may be said in passing that the indeterminate sentence would be in itself to any man a great stimulus to reform, because his reformation would be the only means of his terminating that sentence. At the same time a man left to himself, even in the best ordered of our State prisons which is not a reformatory, would be scarcely likely to make much improvement.

I have not space in this article to consider the character of the reformatory; that subject is fortunately engaging the attention of scientific people as one of the most interesting of our modern problems. To take a decadent human being, a wreck physically and morally, and try to make a man of him, that is an attempt worthy of a people who claim to be civilized. An illustration of what can be done in this direction is furnished by the Elmira Reformatory, where the experiment is being made with most encouraging results, which, of course, would be still better if the indeterminate sentence were brought to its aid.

When the indeterminate sentence has been spoken of with a view to legislation, the question has been raised whether it should be applied to prisoners on the first, second, or third conviction of a penal offense. Legislation in regard to the parole system has also considered whether a man should be considered in the criminal class on his first conviction for a penal offense. Without entering upon this question at length, I will suggest that the convict should, for his own sake, have the indeterminate sentence applied to him upon conviction of his first penal offense. He is much more likely to reform then than he would be after he had had a term in the State prison and was again convicted, and the chance of his reformation would be lessened by each subsequent experience of this kind. The great object of the indeterminate sentence, so far as the security of society is concerned, is to diminish the number of the criminal class, and this will be done when it is seen that the first felony a man commits is likely to be his last, and that for a young criminal contemplating this career there is in this direction "no thoroughfare."

By his very first violation of the statute he walks into confinement, to stay there until he has given up the purpose of such a career.

In the limits of this paper I have been obliged to confine myself to remarks upon the indeterminate sentence itself, without going into the question of the proper organization of reformatory agencies to be applied to the convict, and without consideration of the means of testing the reformation of a man in any given case. I will only add that the methods at Elmira have passed far beyond the experimental stage in this matter.

The necessary effect of the adoption of the indeterminate sentence for felonies is that every State prison and penitentiary must be a reformatory. The convict goes into it for the term of a year at least (since the criminal law, according to ancient precedent, might require that, and because the discipline of the reformatory would require it as a practical rule), and he stays there until, in the judgment of competent authority, he is fit to be trusted at large.

If he is incapable of reform, he must stay there for his natural life. He is a free agent. He can decide to lead an honest life and have his liberty, or he can elect to work for the State all his life in criminal confinement.

When I say that every State prison is to be a reformatory, I except, of course, from its operation, those sentenced for life for murder, or other capital offenses, and those who have proved themselves incorrigible by repeated violations of their parole.

It is necessary now to consider the treatment in the reformatory. Only a brief outline of it can be given here, with a general statement of the underlying principles. The practical application of these principles can be studied in the Elmira Reformatory of New York, the only prison for felons where the proposed system is carried out with the needed disciplinary severity. In studying Elmira, however, it must be borne in mind that the best effects cannot be obtained there, owing to the lack of the indeterminate sentence. In this institution the convict can only be detained for the maximum term provided in the statute for his offense. When that is reached, the prisoner is released, whether he is reformed or not.

The system of reform under the indeterminate sentence, which for convenience may be called the Elmira system, is scientific, and it must be administered entirely by trained men and by specialists; the same sort of training for the educational and industrial work as is required in a college or an industrial school, and the special fitness required for an alienist in an insane asylum. The discipline of the establishment must be equal to that of a military school.

We have so far advanced in civilization that we no longer think of turning the insane, the sick, the feebleminded, over to the care of men without training chosen by the chance of politics. They are put under specialists for treatment. It is as necessary that convicts should be under the care of specialists, for they are the most difficult and interesting subjects for scientific treatment. If not criminals by heredity, they are largely made so by environment; they are either physical degenerates or they are brutalized by vice. They have lost the power of distinguishing right from wrong; they commonly lack will-power, and so are incapable of changing their habits without external influence. In short, the ordinary criminal is unsound and diseased in mind and body.

To deal with this sort of human decadent is, therefore, the most interesting problem that can be offered to the psychologist, to the physiologist, to the educator, to the believer in the immortality of the soul. He is still a man, not altogether a mere animal, and there is always a possibility that he may be made a decent man, and a law-abiding, productive member of society.

Here, indeed, is a problem worthy of the application of all our knowledge of mind and of matter, of our highest scientific attainments. But it is the same problem that we have in all our education, be it the training of the mind, the development of the body, or the use of both to good ends. And it goes without saying that its successful solution, in a reformatory for criminals, depends upon the character of the man who administers the institution. There must be at the head of it a man of character, of intellectual force, of administrative ability, and all his subordinate officers must be fitted for their special task, exactly as they should be for a hospital, or a military establishment, for a college, or for a school of practical industries. And when such men are demanded, they will be forthcoming, just as they are in any department in life, when a business is to be developed, a great engineering project to be undertaken, or an army to be organized and disciplined.

The development of our railroad system produced a race of great railroad men. The protection of society by the removal and reform of the criminal class, when the public determines upon it, will call into the service a class of men fitted for the great work. We know this is so because already, since the discussion of this question has been current, and has passed into actual experiment, a race of workers and prison superintendents all over the country have come to the front who are entirely capable of administering the reform system under the indeterminate sentence. It is in this respect, and not in the erection of model prisons, that the great advance in penology has been made in the last twenty years. Men of scientific attainment are more and more giving their attention to this problem as the most important in our civilization. And science is ready to take up this problem when the public is tired and ashamed of being any longer harried and bullied and terrorized over by the criminal class.

The note of this reform is discipline, and its success rests upon the law of habit. We are all creatures of habit, physical and mental. Habit is formed by repetition of any action. Many of our physical habits have become automatic. Without entering into a physiological argument, we know that repetition produces habit, and that, if this is long continued, the habit becomes inveterate. We know also that there is a habit, physical and moral, of doing right as well as doing wrong. The criminal has the habit of doing wrong. We propose to submit him to influences that will change that habit. We also know that this is not accomplished by suppressing that habit, but by putting a good one in its place.

It is true in this case that nature does not like a vacuum. The thoughts of men are not changed by leaving them to themselves, they are changed by substituting other thoughts.

The whole theory of the Elmira system is to keep men long enough under a strict discipline to change their habits. This discipline is administered in three ways. They are put to school; they are put at work; they are prescribed minute and severe rules of conduct, and in the latter training is included military drill.

The school and the workshop are both primarily for discipline and the formation of new habits. Only incidentally are the school and the workshop intended to fit a man for an occupation outside of the prison. The whole discipline is to put a man in possession of his faculties, to give him self-respect, to get him in the way of leading a normal and natural life. But it is true that what he acquires by the discipline of study and the discipline of work will be available in his earning an honest living. Keep a man long enough in this three-ply discipline, and he will form permanent habits of well-doing. If he cannot and will not form such habits, his place is in confinement, where he cannot prey upon society.

There is not space here to give the details of the practices at Elmira. They are easily attainable. But I will notice one or two objections that have been made. One is that in the congregate system men necessarily learn evil from each other. This is, of course, an evil. It is here, however, partially overcome by the fact that the inmates are kept so busy in the variety of discipline applied to them that they have little or no time for anything else. They study hard, and are under constant supervision as to conduct. And then their prospect of parole depends entirely upon the daily record they make, and upon their radical change of intention. At night they are separated in their cells. During the day they are associated in class, in the workshop, and in drill, and this association is absolutely necessary to their training. In separation from their fellows, they could not be trained. Fear is expressed that men will deceive their keepers and the board which is to pass upon them, and obtain parole when they do not deserve it. As a matter of fact, men under this discipline cannot successfully play the hypocrite to the experts who watch them. It is only in the ordinary prison where the parole is in use with no adequate discipline, and without the indefinite sentence, that deception can be practiced. But suppose a man does play the hypocrite so as to deceive the officers, who know him as well as any employer knows his workmen or any teacher knows his scholars, and deceives the independent board so as to get a parole. If he violates that parole, he can be remanded to the reformatory, and it will be exceedingly difficult for him to get another parole. And, if he should again violate his parole, he would be considered incorrigible and be placed in a life prison.

We have tried all other means of protecting society, of lessening the criminal class, of reforming the criminal. The proposed indeterminate sentence, with reformatory discipline, is the only one that promises to relieve society of the insolent domination and the terrorism of the criminal class; is the only one that can deter men from making a career of crime; is the only one that offers a fair prospect for the reformation of the criminal offender.

Why not try it? Why not put the whole system of criminal jurisprudence and procedure for the suppression of crime upon a sensible and scientific basis?