The Indeterminate Sentence

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THE INDETERMINATE SENTENCE--WHAT SHALL BE DONE WITH THE CRIMINAL CLASS?

By Charles Dudley Warner

The problem of dealing with the criminal class seems insolvable, and it
undoubtedly is with present methods. It has never been attempted on a
fully scientific basis, with due regard to the protection of society and
to the interests of the criminal.

It is purely an economic and educational problem, and must rest upon the
same principles that govern in any successful industry, or in education,
and that we recognize in the conduct of life. That little progress has
been made is due to public indifference to a vital question and to the
action of sentimentalists, who, in their philanthropic zeal; fancy that a
radical reform can come without radical discipline. We are largely
wasting our energies in petty contrivances instead of striking at the
root of the evil.

What do we mean by the criminal class? It is necessary to define this
with some precision, in order to discuss intelligently the means of
destroying this class. A criminal is one who violates a statute law, or,
as we say, commits a crime. The human law takes cognizance of crime and
not of sin. But all men who commit crime are not necessarily in the
criminal class. Speaking technically, we put in that class those whose
sole occupation is crime, who live by it as a profession, and who have no
other permanent industry. They prey upon society. They are by their acts
at war upon it, and are outlaws.

The State is to a certain extent responsible for this class, for it has
trained most of them, from youth up, through successive detentions in
lock-ups, city prisons, county jails, and in State prisons, and
penitentiaries on relatively short sentences, under influences which tend
to educate them as criminals and confirm them in a bad life. That is to
say, if a man once violates the law and is caught, he is put into a
machine from which it is very difficult for him to escape without further
deterioration. It is not simply that the State puts a brand on him in the
eyes of the community, but it takes away his self-respect without giving
him an opportunity to recover it. Once recognized as in the criminal
class, he has no further concern about the State than that of evading its
penalties so far as is consistent with pursuing his occupation of crime.

To avoid misunderstanding as to the subject of this paper, it is
necessary to say that it is not dealing with the question of prison
reform in its whole extent. It attempts to consider only a pretty well
defined class. But in doing this it does not say that other aspects of
our public peril from crime are not as important as this. We cannot relax
our efforts in regard to the relations of poverty, drink, and unsanitary
conditions, as leading to crime. We have still to take care of the
exposed children, of those with parentage and surroundings inclining to
crime, of the degenerate and the unfortunate. We have to keep up the
warfare all along the line against the demoralization of society. But we
have hereto deal with a specific manifestation; we have to capture a
stronghold, the possession of which will put us in much better position
to treat in detail the general evil.

Why should we tolerate any longer a professional criminal class? It is
not large. It is contemptibly small compared with our seventy millions of
people. If I am not mistaken, a late estimate gave us less than fifty
thousand persons in our State prisons and penitentiaries. If we add to
them those at large who have served one or two terms, and are generally
known to the police, we shall not have probably more than eighty thousand
of the criminal class. But call it a hundred thousand. It is a body that
seventy millions of people ought to take care of with little difficulty.
And we certainly ought to stop its increase. But we do not. The class
grows every day. Those who watch the criminal reports are alarmed by the
fact that an increasing number of those arrested for felonies are
discharged convicts. This is an unmistakable evidence of the growth of
the outlaw classes.

But this is not all. Our taxes are greatly increased on account of this
class. We require more police to watch those who are at large and preying
on society. We expend more yearly for apprehending and trying those
caught, for the machinery of criminal justice, and for the recurring
farce of imprisoning on short sentences and discharging those felons to
go on with their work of swindling and robbing. It would be good economy
for the public, considered as a taxpayer, to pay for the perpetual keep
of these felons in secure confinement.

And still this is not the worst. We are all living in abject terror of
these licensed robbers. We fear robbery night and day; we live behind
bolts and bars (which should be reserved for the criminal) and we are in
hourly peril of life and property in our homes and on the highways. But
the evil does not stop here. By our conduct we are encouraging the growth
of the criminal class, and we are inviting disregard of law, and
diffusing a spirit of demoralization throughout the country.

I have spoken of the criminal class as very limited; that is, the class
that lives by the industry of crime alone. But it is not isolated, and it
has widespread relations. There is a large portion of our population not
technically criminals, which is interested in maintaining this criminal
class. Every felon is a part of a vast network of criminality. He has his
dependents, his allies, his society of vice, all the various machinery of
temptation and indulgence.

It happens, therefore, that there is great sympathy with the career of
the lawbreakers, many people are hanging on them for support, and among
them the so-called criminal lawyers. Any legislation likely to interfere
seriously with the occupation of the criminal class or with its increase
is certain to meet with the opposition of a large body of voters. With
this active opposition of those interested, and the astonishing
indifference of the general public, it is easy to see why so little is
done to relieve us of this intolerable burden. The fact is, we go on
increasing our expenses for police, for criminal procedure, for jails and
prisons, and we go on increasing the criminal class and those affiliated
with it.

And what do we gain by our present method? We do not gain the protection
of society, and we do not gain the reformation of the criminal. These two
statements do not admit of contradiction. Even those who cling to the
antiquated notion that the business of society is to punish the offender
must confess that in this game society is getting the worst of it.
Society suffers all the time, and the professional criminal goes on with
his occupation, interrupted only by periods of seclusion, during which he
is comfortably housed and fed. The punishment he most fears is being
compelled to relinquish his criminal career. The object of punishment for
violation of statute law is not vengeance, it is not to inflict injury
for injury. Only a few persons now hold to that. They say now that if it
does little good to the offender, it is deterrent as to others. Now, is
our present system deterrent? The statute law, no doubt, prevents many
persons from committing crime, but our method of administering it
certainly does not lessen the criminal class, and it does not adequately
protect society. Is it not time we tried, radically, a scientific, a
disciplinary, a really humanitarian method?

The proposed method is the indeterminate sentence. This strikes directly
at the criminal class. It puts that class beyond the power of continuing
its depredations upon society. It is truly deterrent, because it is a
notification to any one intending to enter upon that method of living
that his career ends with his first felony. As to the general effects of
the indeterminate sentence, I will repeat here what I recently wrote for
the Yale Law Journal:

It is unnecessary to say in a law journal that the indeterminate
sentence is a measure as yet untried. The phrase has passed into
current speech, and a considerable portion of the public is under
the impression that an experiment of the indeterminate sentence is
actually being made. It is, however, still a theory, not adopted in
any legislation or in practice anywhere in the world.

The misconception in regard to this has arisen from the fact that
under certain regulations paroles are granted before the expiration
of the statutory sentence.

An indeterminate sentence is a commitment to prison without any
limit. It is exactly such a commitment as the court makes to an
asylum of a man who is proved to be insane, and it is paralleled by
the practice of sending a sick man to the hospital until he is
cured.

The introduction of the indeterminate sentence into our criminal
procedure would be a radical change in our criminal legislation and
practice. The original conception was that the offender against the
law should be punished, and that the punishment should be made to
fit the crime, an 'opera bouffe' conception which has been abandoned
in reasoning though not in practice. Under this conception the
criminal code was arbitrarily constructed, so much punishment being
set down opposite each criminal offense, without the least regard to
the actual guilt of the man as an individual sinner.

Within the present century considerable advance has been made in
regard to prison reform, especially with reference to the sanitary
condition of places of confinement. And besides this, efforts of
various kinds have been made with regard to the treatment of
convicts, which show that the idea was gaining ground that criminals
should be treated as individuals. The application of the English
ticket-of-leave system was one of these efforts; it was based upon
the notion that, if any criminal showed sufficient evidence of a
wish to lead a different life, he should be conditionally released
before the expiration of his sentence. The parole system in the
United States was an attempt to carry out the same experiment, and
with it went along the practice which enabled the prisoner to
shorten the time of his confinement by good behavior. In some of
the States reformatories have been established to which convicts
have been sent under a sort of sliding sentence; that is, with the
privilege given to the authorities of the reformatory to retain the
offender to the full statutory term for which he might have been
sentenced to State prison, unless he had evidently reformed before
the expiration of that period. That is to say, if a penal offense
entitled the judge to sentence the prisoner for any period from two
to fifteen years, he could be kept in the reformatory at the
discretion of the authorities for the full statutory term. It is
from this law that the public notion of an indeterminate sentence is
derived. It is, in fact, determinate, because the statute
prescribes its limit.

The introduction of the ticket-of-leave and the parole systems, and
the earning of time by good behavior were philanthropic suggestions
and promising experiments which have not been justified by the
results. It is not necessary at this time to argue that no human
discretion is adequate to mete out just punishment for crimes; and
it has come to be admitted generally, by men enlightened on this
subject, that the real basis for dealing with the criminal rests,
firstly, upon the right of society to secure itself against the
attacks of the vicious, and secondly, upon the duty imposed upon
society, to reform the criminal if that is possible. It is patent
to the most superficial observation that our present method does not
protect society, and does not lessen the number of the criminal
class, either by deterrent methods or by reformatory processes,
except in a very limited way.

Our present method is neither economic nor scientific nor
philanthropic. If we consider the well-defined criminal class
alone, it can be said that our taxes and expenses for police and the
whole criminal court machinery, for dealing with those who are
apprehended, and watching those who are preying upon society, yearly
increase, while all private citizens in their own houses or in the
streets live inconstant terror of the depredations of this class.
Considered from the scientific point of view, our method is
absolutely crude, and but little advance upon mediaeval conditions;
and while it has its sentimental aspects, it is not real
philanthropy, because comparatively few of the criminal class are
permanently rescued.

The indeterminate sentence has two distinct objects: one is the
absolute protection of society from the outlaws whose only business
in life is to prey upon society; and the second is the placing of
these offenders in a position where they can be kept long enough for
scientific treatment as decadent human beings, in the belief that
their lives can be changed in their purpose. No specific time can
be predicted in which a man by discipline can be expected to lay
aside his bad habits and put on good habits, because no two human
beings are alike, and it is therefore necessary that an indefinite
time in each case should be allowed for the experiment of
reformation.

We have now gone far enough to see that the ticket-of-leave system,
the parole system as we administer it in the State prisons (I except
now some of the reformatories), and the good conduct method are
substantially failures, and must continue to be so until they rest
upon the absolute indeterminate sentence. They are worse than
failures now, because the public mind is lulled into a false
security by them, and efforts at genuine prison reform are defeated.

It is very significant that the criminal class adapted itself
readily to the parole system with its sliding scale. It was natural
that this should be so, for it fits in perfectly well with their
scheme of life. This is to them a sort of business career,
interrupted now and then only by occasional limited periods of
seclusion. Any device that shall shorten those periods is welcome
to them. As a matter of fact, we see in the State prisons that the
men most likely to shorten their time by good behavior, and to get
released on parole before the expiration of their sentence, are the
men who make crime their career. They accept this discipline as a
part of their lot in life, and it does not interfere with their
business any more than the occasional bankruptcy of a merchant
interferes with his pursuits.

It follows, therefore, that society is not likely to get security
for itself, and the criminal class is not likely to be reduced
essentially or reformed, without such a radical measure as the
indeterminate sentence, which, accompanied, of course, by scientific
treatment, would compel the convict to change his course of life, or
to stay perpetually in confinement.

Of course, the indeterminate sentence would radically change our
criminal jurisprudence and our statutory provisions in regard to
criminals. It goes without saying that it is opposed by the entire
criminal class, and by that very considerable portion of the
population which is dependent on or affiliated with the criminal
class, which seeks to evade the law and escape its penalties. It is
also opposed by a small portion of the legal profession which gets
its living out of the criminal class, and it is sure to meet the
objection of the sentimentalists who have peculiar notions about
depriving a man of his liberty, and it also has to overcome the
objections of many who are guided by precedents, and who think the
indeterminate sentence would be an infringement of the judicial
prerogative.

It is well to consider this latter a little further. Our criminal
code, artificial and indiscriminating as it is, is the growth of
ages and is the result of the notion that society ought to take
vengeance upon the criminal, at least that it ought to punish him,
and that the judge, the interpreter of the criminal law, was not
only the proper person to determine the guilt of the accused, by the
aid of the jury, but was the sole person to judge of the amount of
punishment he should receive for his crime. Now two functions are
involved here: one is the determination that the accused has broken
the law, the other is gauging within the rules of the code the
punishment that, each individual should receive. It is a
theological notion that the divine punishment for sin is somehow
delegated to man for the punishment of crime, but it does not need
any argument to show that no tribunal is able with justice to mete
out punishment in any individual case, for probably the same degree
of guilt does not attach to two men in the violation of the same
statute, and while, in the rough view of the criminal law, even, one
ought to have a severe penalty, the other should be treated with
more leniency. All that the judge can do under the indiscriminating
provisions of the statute is to make a fair guess at what the man
should suffer.

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.