Criminal Sociology
by
Enrico Ferri
Part 2 out of 5
between one and another, and as the frequency of the several
criminal types varies according to the crimes or offences, natural
or otherwise, against persons or property, no precise account can
be rendered of the criminal world as a whole.
By way of approximation, however, it may be said in the first
place that the classes of mad criminals and criminals of passion
are the least numerous, and represent something like 5 or 10 per
cent. of the total.
On the other hand, we have seen that born and habitual criminals
are about 40 or 50 per cent.; so that the occasional criminals
would also be between 40 and 50 per cent.
These are figures which naturally vary according to the different
groups of crime and of criminals which come under observation, and
which cannot be more accurately determined without a series of
special studies in criminal anthropology, as I said when answering
the objections which have been raised against the methods of this
novel science.
It remains for us, before concluding our first chapter, to
establish a fact of great scientific and practical value. This is
that, after the anthropological classification which I have
maintained for some ten years past, all who have been devoting
themselves to the subject of crime as regarded from a biological
and social standpoint have recognised the need for a
classification less simple than that of habitual and occasional
criminals, and which will be more or less complex according to the
criterion which may be adopted.
In the first place, the necessity is generally recognised of
abandoning the old arbitrary and algebraic type in favour of a
classification which shall correspond more accurately with the
facts of the case. This classification, originating in
observations made within the prison walls, I have extended in the
domain of criminal sociology, wherein it is now established as a
fundamental criterion of legislative measures which must be taken
as a protection against criminals, as well as a criterion of their
responsibility.
Secondly, the classifications of criminals hitherto given are not
essentially and integrally distinct. It has been seen, as a
matter of fact, that all the classifications which have been set
forth amount to a recognition of four types, the born, the insane,
the occasional criminals, and the criminals of passion; and this
again resolves itself into the simple and primitive distinction
between occasional and instinctive criminals. The category of
criminals by contracted habit would not be accepted by all
observers, but it corresponds too closely to our daily experience
to stand in need of further proof. And on the other hand I must
frankly decline to accept the authority of those who put forward
classifications more or less symmetrical without having made a
direct study of criminals; for the experimental method does not
admit systems based on mere imagination, or on vague recollections
of criminal trials, or on argumentative constructions built up
from the systems of others.
As a matter of fact, apart from the differences of
nomenclature, it is evident that the partial discrepancies in this
anthropological classification of criminals are due in some
measure to the different points of view taken by observers. For
instance, the classification of Lacassagne, Joly, Krauss, Badik,
and Marro rest upon a purely descriptive criterion of the organic
or psychological characteristics of criminals. The
classifications of Liszt, Medem, and Minzloff, on the other hand,
depend solely upon the curative and defensive influence of
punishment; and those of Foehring and Starke upon certain special
points of view, such as the assistance of released prisoners, on
their tendency to relapse.
My own point of view, on the contrary, has been general and
reproductive, for my classification is based upon the natural
causes of crime, individual, physical, and social, and to this
extent it corresponds more closely with the theoretical and
practical requirements of criminal sociology. If the curative art
of society, like that of individuals, expects from positive
knowledge an indication of remedies, it is clear that a
classification based on the fundamental causes of crime is best
fitted to indicate a social cure for this manifestation of
disease, which is the essential object of criminal sociology.
For, as in biology one is carried from purely descriptive anatomy
to genetic anatomy and physiology, so in sociology we must pass on
from purely legal descriptions of crimes to the genetic knowledge
of the criminals who commit these crimes.
For this reason all the chief classifications of criminals, as has
been seen, may be brought into line with my own, by virtue
of the more complete and fruitful test which has established it.
And thus we have a manifest proof that this classification
actually represents the common and permanent basis of all the
chief anthropological categories of criminals, whether in regard
to their natural causality and their specific character, or in
regard to the different forms of social self-defence which spring
out of them, and which must be adapted to the natural causes of
crime, and to the principal criminal types.
But whatever classification may be accepted, we shall always have,
as the fundamental axiom of criminal anthropology, this variety in
the types of criminals, which must henceforth be indispensable to
all who are theoretically or practically concerned with crime.
CHAPTER II.
THE DATA OF CRIMINAL STATISTICS.
For moral and social facts, unlike physical and biological facts,
experiment is very difficult, and frequently even impossible;
observation in this domain brings the greatest aid to scientific
research. And statistics are amongst the most efficacious
instruments of such observation.
It is natural, therefore, that criminal sociology, after studying
the individual aspect of the natural genesis of crime, should have
recourse to criminal statistics for the study of the social
aspect. Statistical information in the words of Krohne, ``is the
first condition of success in opposing the armies of crime, for it
discharges the same function as the Intelligence department in
war.''
From statistics, in fact, the modern idea of the close relation
between offences and the conditions of social life, in some of its
aspects, and above all in certain particular forms, has most
directly sprung.
The science of criminal statistics is to criminal sociology what
histology is to biology, for it exhibits, in the conditions of the
individual elements of the collective organism, the factors of
crime as a social phenomenon. And that not only for
scientific inductions, but also for practical and legislative
purposes; for, as Lord Brougham said at the London Statistical
Congress in 1860, ``criminal statistics are for the legislator
what the chart and the compass are for the navigator.''
The experimental school, accepting the fundamental and
incontestible idea, apart from its numerical and optimistic
exaggerations, that the statistics of crime must be considered in
regard to the growth and activity of the population, has opened up
an entirely new channel of fruitful observations, in the
classification and study of the natural factors of crime.
In my ``Studies of Crime in France'' (1881) I arranged in three
natural orders the whole series of causes leading to crime, which
had previously been indicated in a fragmentary and incomplete
manner.[12]
[12] Bentham, in his ``Introduction to the Principles of Morals
and Legislation,'' enumerates the following circumstances as
necessary to be considered in legislation:--temperament, health,
strength, physical imperfections, culture, intellectual faculties,
strength of mind, dispositions, ideas of honour and religion,
feelings of sympathy and antipathy, insanity, economic conditions,
sex, age, social status, education, profession, climate, race,
government, religious profession.
Lombroso, in the second edition of his ``Criminal,'' which
embraces all the divisions of his classical work, has made but a
rapid enumeration of the principal points:--race civilisation,
poverty, heredity, age sex, civil status, profession, education,
organic anomalies, sensations imitation. Morselli, treating of
suicide, has given a fuller classification of its contributory
causes:--worldly or natural influences, ethnical or demographical
influences, social influences, biopsychical influences.
From the consideration that human actions, whether honest or
dishonest, social or anti-social, are always the outcome of a
man's physio-psychical organism, and of the physical and social
atmosphere which surrounds him, I have drawn attention to
the anthropological or individual factors of crime, the
physical factors, and the social factors.
The anthropological factors, inherent in the individual criminal,
are the first condition of crime; and they may be divided into
three sub-classes, according as we regard the criminal organically
physically, or socially.
The organic constitution of the criminal comprises all anomalies
of the skull, the brain, the vital organs, the sensibility, and
the reflex activity, and all the bodily characteristics taken
together, such as the physiognomy, tattooing, and so on.
The mental constitution of the criminal comprises anomalies of
intelligence and feeling, especially of the moral sense, and the
specialities of criminal writing and slang.
The personal characteristics of the criminal comprise his purely
biological conditions, such as race, age, sex; bio-social
conditions, such as civil status, profession, domicile, social
rank, instruction, education, which have hitherto been regarded as
almost the exclusive concern of criminal statistics.
The physical factors of crime are climate, the nature of the
soil, the relative length of day and night, the seasons, the
average temperature, meteoric conditions, agricultural pursuits.
The social factors comprise the density of population; public
opinion, manners and religion; family circumstances; the system of
education; industrial pursuits; alcoholism; economic and political
conditions; public administration, justice and police; and in
general, legislative, civil and penal institutions. We have
here a host of latent causes, commingling and combining in all
parts of the social organism, which generally escape the notice
both of theorists and of practical men, of criminologists and of
legislators.
This classification of the natural factors of crime, which has
indeed been accepted by almost all criminal anthropologists and
sociologists, seems to me more precise and complete than any other
which has been proposed.
In respect of this classification of the natural factors of crime,
it is necessary to make two final observations as to the practical
results which may be obtained in the struggle for just laws and
against the transgression of them.
In the first place, owing to ``the discovery of the unexpected
relation amongst the various forces of nature, which had
previously been thought to be independent,'' we must lay stress on
this positive deduction, that we cannot find an adequate reason
either for a single crime or for the aggregate criminality of a
nation if we do not take into account each and all of the
different natural factors, which we may isolate in the exigencies
of our studies, but which always act together in an indissoluble
union.
No crime, whoever commits it, and in whatever circumstances, can
be explained except as the outcome of individual free-will, or as
the natural effect of natural causes. Since the former of these
explanations has no scientific value, it is impossible to give a
scientific explanation of a crime (or indeed of any other
action of man or brute) unless it is considered as the product of
a particular organic and psychical constitution, acting in a
particular physical and social environment.
Therefore it is far from being exact to assert that the positive
criminal school reduces crime to a purely and exclusively
anthropological phenomenon. As a matter of fact, this school has
always from the beginning maintained that crime is the effect of
anthropological, physical, and social conditions, which evolve it
by their simultaneous and inseparable operation. And if inquiries
into biological conditions have been more abundant and more
conspicuous by their novelty, this in no way contradicts the
fundamental conclusion of criminal sociology.
That being stated, we have still to examine the relative value of
these three classes of conditions in the natural evolution of
crime.
It seems to me that this question is generally stated
inaccurately, and also that it cannot be answered absolutely, and
in a word.
It is generally stated inaccurately; because they who think, for
instance, that crime is nothing else than a purely and exclusively
social phenomenon in the evolution of which the organic and
psychical anomalies of the criminal have had no part, ignore more
or less consciously the universal correlation of natural forces,
and forget that, in regard to any phenomenon whatsoever, it is
impossible to set an absolute limit to the network of its causes,
immediate and remote, direct and indirect.
To put this question in an arbitrary sense would be like
asking if a mammal is the product of its lungs, or its heart, or
its stomach, or of vegetable constituents, or of the atmosphere;
whereas each of these conditions, internal and external, is
necessary to the life of the animal.
In fact, if crime were the exclusive product of the social
environment, how could one explain the familiar fact that in the
same social environment, and in identical circumstances of
poverty, abandonment, lack of education, sixty per cent. do not
commit crimes, and, of the other forty, five prefer suicide, five
go mad, five simply become beggars or tramps not dangerous to
society, whilst the remaining twenty-five actually commit crimes?
And amongst the latter, whilst some go no further than theft
without violence, why do others commit theft with violence, and
even kill their victim outright, before he offers resistance, or
threatens them, or calls for help, and this with no other object
than gain?
The secondary differences of social condition, which may be
observed even amongst the members of a single family, rotting in
one of the slums of our great towns, or amongst those who are
surrounded by the temptations of money or power, or the like, are
clearly not enough in themselves to explain the vast differences
in the actions which grow out of them, varying from honesty under
the greatest discouragement to suicide and murder.
The question, therefore, must be asked in a relative sense
altogether, and we must inquire which of the three kinds of
natural causes of crime has a greater or less influence in
determining each particular crime at any given moment in the
individual and social life.
No clear answer of general application can be given to this
question, for the relative influence of the anthropological,
physical, and social conditions varies with the psychological and
social characteristics of each offence against the law.
For instance, if we consider the three great classes of crimes
against the person, against property, and against personal purity,
it is evident that each class of determining causes, but
especially the biological and social conditions, have a distinctly
different influence in evolving homicide, theft, or indecent
assaults. And so it is in every category of crimes.
The undeniable influence of social conditions, and still more of
economic conditions, in leading up to the commission of theft, is
far inferior in the genesis of homicides and indecent assaults.
And similarly, in each category of crimes, the influence of the
determining conditions varies greatly according to the special
forms of crime.
Certain casual homicides are plainly the result of social
conditions (gambling, drink, public opinion, &c.) in a much higher
degree than homicides which for the most part spring from
brutality, from the moral insensibility of individuals, or from
their psycho-pathological conditions, corresponding to abnormal
organic conditions.
In like manner, certain indecent assaults, incests, &c., are
largely the outcome of social environment, which, condemning a
number of persons to live in hovels without air or light,
with a promiscuity of sex between parents and children such as
obtains amongst the brutes, effaces or deadens all normal sense of
modesty. On the other hand, there are cases of rape and the like
which are mostly due to the biological condition of the
individual, either in manifest forms of sexual disease or, less
manifest though none the less actual, of biological anomaly.
For thefts, again, whilst occasional simple thefts are largely the
effect of social and economical conditions, this influence becomes
feebler in comparison with impulses due to the personal
constitution, organic and psychical, as, for instance, in the case
of thefts with violence, and especially of murder for the purpose
of robbery, which scoundrels of the ``swell-mob'' so frequently
commit in cold blood.
The same observation applies to the conditions of physical
environment. For instance, if the regular increase of crimes
against property in winter (and, as I showed for the first time
from French statistics, in years when the cold is greatest) is
only an indirect result, through the social and economic
influences of temperature, the increase of crimes of passion and
indecent assaults during the months and years when the temperature
is highest is only a direct effect of temperature, even for such
as, by their biological conditions, offer the feeblest resistance
to these influences.
Meanwhile, a last objection has been raised against the
conclusions which I have maintained for many years past.
It has been said that, even if we admit that for certain
crimes and criminals the greatest influence must be recognised as
due to the physical and psychical conditions of the individual,
extending from slightly manifested anomalies of an anthropological
character to the most accentuated pathological condition, this
does not exclude the possibility of a crime being due to social
conditions. In fact, it is said the anomalies of the individual
are in their turn only an effect of a debasing social environment,
which condemns its victims to organic and psychical degeneration.
This objection is sound enough if it be taken in a relative sense,
but groundless if it be insisted on absolutely.
It must be considered, in the first place, that the distinctions
of cause and effect are only relative, for every effect has its
cause, and vice versa; so that if wretchedness, material and
moral, is a cause of degeneration, degeneration itself, like
biological anomaly, is a cause of wretchedness. And in this sense
the question would be simply metaphysical, like the famous
Byzantine discussions as to whether there was originally an egg
before a hen or a hen before an egg.
And, in fact, when it was said, in regard to criminal geography,
that the extent and quality of crime in such and such a province,
instead of being the effect of biological conditions (race, &c.)
and physical conditions (climate, soil, &c.), were but the effect
of social and economic conditions (of rural and industrial
pursuits, and the like), I was able to make a very simple reply.
For, apart even from statistical proofs, if the social
conditions of such and such a province, which have an
unquestionable influence, are really the absolute and exclusive
cause of crime, we may still ask whether these social conditions
of the province are not themselves the effect of the ethnical
qualities of energy, intelligence, and so forth, in its
inhabitants, and of the more or less favourable conditions of the
climate and the soil.
But it may also be observed, more precisely, that even apart from
strongly marked and conspicuous pathological conditions, which
meanwhile assert themselves amongst the biological factors of
crime, there is a very great number of these cases in which it
cannot actually be said that the bio-psychical anomalies of the
criminal are the effect of a physically and morally poisonous
environment.
In every family in which there are several children, we find (in
spite of identical surroundings and conditions of a favourable
kind, and suitable methods of training and education), individuals
who differ intellectually from the cradle; we also find in the
degree or in the kind of their talent, the same individuals also
differ from their cradle in physical and moral constitution. And
though the phenomenon may only be manifest in the less numerous
cases of types which are markedly normal or abnormal, it is none
the less true also in the more numerous cases of ordinary types.
In this connection I may observe that physical and social
conditions have a greater or a less influence in proportion as the
physical and psychical constitution of the individual is more or
less sound and vigorous.
The practical conclusion, therefore, of these general observations
on the natural genesis of crime is this: Every crime is the
result of individual physical and social conditions; and, since
these conditions have a more or less dominant influence for
various forms of crime, the most certain and profitable mode of
defence which society can employ against criminality is of a
twofold character, and both modes ought to be employed and brought
into action simultaneously--in the first place, the amelioration
of the social conditions, as a natural preventive of crime, in the
nature of a substitute for punishment; and, secondly, measures of
perpetual or temporary elimination of criminals, according as the
influence of biological conditions in the evolution of crime is
all but absolute, or more or less great, and more or less curable.
As a matter of fact, when we follow the periodic variations of
crime, with its measured growth and decrease, we cannot fail to
conclude that these constant and constantly occurring variations
depend upon a corresponding variation of anthropological and
physical factors. For, whilst criminal statistics are far from
showing the regularity which Quetelet claimed with much
exaggeration, the proportional figures in regard to the bearings
of age, sex, calling, &c., upon criminality exhibit very
insignificant variations from year to year. And as for the
physical factors, if marked variations are explicable at some
given period, it is nevertheless evident that neither climate, nor
the nature of the soil, nor atmospheric conditions, nor the
seasons, nor the temperature of different years could have
undergone in the last half-century such constant and
repeated variations as to correspond to those waves of criminality
which we shall presently exhibit in almost every nation of Europe.
Thus it is to the social factors that we must chiefly attribute
the periodic variations of criminality. For even the variations
which can be detected in certain anthropological factors, like the
influences of age and sex upon crime, and the more or less marked
outbreak of anti-social and pathological tendencies, depend in
their turn upon social factors, such as the protection accorded to
abandoned infants, the participation of women in non-domestic,
commercial and industrial life, preventive and repressive
measures, and the like. And again, since the social factors have
special import in occasional crime, and crime by acquired habit,
and since these are the most numerous sections of crime as a
whole, it is clear that the periodic movement of crime must be
attributed in the main to the social factors. So true is this,
that, as we shall presently see, the gravest crimes, especially
against persons, precisely because they mostly indicate congenital
criminality, follow a more steady and regular movement than these
slighter but far more frequent offences against property, public
order, and persons, of a more occasional character, and that, as
microbes of the world of crime, they are the more direct outcome
of social environment.
It is therefore another point in favour of the experimental school
that it has insisted on this sociological aspect of the problem of
criminality, by showing legislators, outside the limits of
their punitive remedies, as easy as they are illusory, how they
might, as far as circumstances will permit, apply a genuine social
remedy to crime.
After these preliminary observations, it is time that we should
take a closer view of the general statistics of the movement of
crime in Europe, so far as they may be followed in official
figures.
Whilst we have no intention of offering a body of comparative
statistics, but only of giving a simple indication of the periodic
movement of crime, these data, which do not render it easy to
compare one country with another, though they are intimately
related so far as each particular country is concerned, suffice to
exhibit a few facts of some considerable importance.
The most conspicuous general phenomenon in the countries here
included is the steadiness of the gravest forms of crime side by
side with the continuous increase of slighter offences,
especially in the countries which show a long series of figures,
such as France, England, and Belgium. This proceeds mainly from
the progressive accumulation of offences against special
enactments, which are constantly being added to the original basis
of the penal code; but it is also a symptom of an actual
transformation in the criminal activity of the century, from
whence, through the gradual substitution of crimes against
property in the great towns for crimes against the person in
earlier centuries, we have a wider extension together with a lower
degree of intensity.
Another characteristic common to the countries under observation
is that, whilst the graver crimes against property show a somewhat
marked diminution, crimes against persons, on the other hand, show
more steadiness, either of regularity, as in France and Belgium,
or of increase, as in England, and still more in Germany. But
this phenomenon in the case of crimes against the person is in
actual correspondence with criminal activity arising from an
increase of population. On the other hand--apart from the
transformation of crimes of violence into crimes of craft and
fraud, due to the increase of movable property--the decrease of
offences against property is no more than the manifest effect of
an artificial change of judicial procedure, summary proceedings
taking the place of trial by jury.
An alternation, which is not invalidated by exceptions here and
there, has been observed in the criminality of different
countries, in the periodic movement of crimes and offences against
property and those against the person, of such a kind that years
of increase in the former usually answer to a diminution in the
latter, and vice versa. The principal factors in the annual
increase of theft, such as scarcity and extremes of weather, cause
a corresponding diminution of violent assaults and bodily harm, of
homicides and indecent assaults, and vice versa. On the
other hand, offences against property, which are very numerous,
contribute most of all to the total of annual crime; so that the
maximum of 1880 in Italy, as well as in France, Belgium and
Austria, is especially due to the great severity of the
winter of 1879-80, which in Italy coincided with an
agricultural crisis, attested by the very high price of corn.
Whereas from 1881 to 1885 there were very mild winters, with more
abundant harvests, and from 1886 a greater extreme of cold and a
more acute economic crisis.
The general tendency of these periodic oscillations of crime in
Italy, as in other European countries, is nevertheless far more
towards increase than towards decrease. This is also shown by the
proportional triennial averages of crimes and offences placed on
record, and of persons condemned to imprisonment.
In the movement of crime in each country it is necessary to
distinguish special oscillations, more or less prolonged, of
increase or decrease, from its general and permanent tendency.
The latter is determined by the fundamental conditions of each
nation, physical and social, apart from the purely artificial
section of transgressions brought into existence by new laws. The
special oscillations, on the other hand, are determined by the
annual variations in this or that factor of the more numerous
offences; that is to say, by abundance or scantiness of the
harvests, by the annual variations of temperature, by industrial
and political crises, and the like.
The oblivion of this marked distinction, coupled with the
prejudices of the scientific schools, and even of political
parties, leads to some curious disagreements, and to lively
discussions on the results of criminal statistics. For on one
side the champions of the classical school plainly see that the
persistent increase of crimes and offences amounts to a
proof of that breakdown of penal systems, practical and
theoretical, which have hitherto been applied--as was admitted by
Holtzendorff. And on the other hand, the increase of crimes is
denied or affirmed for the purpose of supporting or attacking some
particular ministry. For, in parliaments more than elsewhere,
there is always a deep-seated and vivacious prejudice, a kind of
social artificiality, which causes men to think that the condition
of States, moral and economic, is fundamentally determined far
more by the action of this or that government than by natural
factors, which are mainly superior to and outside of governments
and politicians.
And this is why in Italy there has been much discussion of late,
in scientific publications, at the sittings of the Central
Commission of Judicial Statistics, and even in Parliament, as to
whether crime was increasing or decreasing.
Beltrani-Scalia and Lombroso almost simultaneously called
attention to the growth of Italian crime, and they were succeeded
by various adherents of the positive school, such as Ferri,
Garofalo, Pavia, Pugliese, Guidi, Bournet, Barzilai, and Rossi,
who produced evidence that the general tendency of crime in Italy
was to increase, and that the diminutions observed after 1880 were
mere transitory oscillations; and after 1886 they were justified
by facts.
On the other hand, official returns of criminal statistics, and a
majority of the members of the Central Commission, when pursuing
an inquiry suggested by myself into Italian crime since 1873
--for previously to this date there are no criminal
statistics in Italy except for 1853 and 1869-70--came to the
conclusion that there was a tendency towards a diminution of
crime. But their decision was formed from an entirely partial
standpoint, which they had taken up in the exigency of polemical
discussion. They compared, in fact, the years just concluded,
1881-5, with 1880, and thus it naturally followed that after a
maximum they had a relative decrease. And it was only this
ingenious comparison which gave an appearance of actual proof to
their optimistic assertions; for when a fever is at forty degrees,
the fall of even half a degree is very important. They paid
special attention to the so-called high criminality, which is
tried by the Assize courts, and is actually decreasing, though by
the purely artificial effect of more and more effective measures
of correction. But I have always maintained, and I have the
support of M. Oettingen, that we cannot separate crimes and
offences tried by the Assizes from those tried by the Tribunals,
for there is only a difference of degree between them, as is clear
in regard to theft, assaults and wounding, forgery and the like.
It is a curious fact that similar illusions have existed in all
countries through the same causes and prejudices which have been
mentioned above. In France, for instance, we often find that the
keepers of the seals, reporting on volumes of the excellent and
valuable series of criminal statistics since the year 1826,
occasionally remark on these oscillatory diminutions, and make a
point of treating them as signs of a constant and general
tendency, which succeeding years have always contradicted.
In France also, the same controversy has been kept up since 1840,
with the same polemical artifices as were employed more recently
in Italy, on the question whether crime has increased or
decreased. Dufau, Beranger, Berrzat de St. Prix, and Legoyt
affirmed that it had diminished since 1826, against the true
opinion of de Metz, Dupin, Chassan, Mesuard, and Fayet, the last
of whom quotes the others in one of his essays on criminal
statistics, now undeservedly forgotten, though they abound in
striking and profound observation.
But, as for France in those days, so for Italy to-day, the
statistics of succeeding years quickly proved that what official
optimism and national self-complacency spoke of as pessimism on
our part was but a conscientious inference from lamentable facts,
established in every country by the influence of civilisation on
crime, which I have described in preceding pages.
After these general statements we ought logically to watch the
periodic movement of each leading category of crimes and offences
in each division of the country; for not all crimes, nor all
districts, pursue the same course from year to year. But as this
inquiry is impossible in the present work, we may pass on to the
general figures for other European countries.
FRAN 1826-8. 1895-7.
Police Contraventions ... ... ... 100 391|
Offences ... ... ... ... ... ... 100 397|
Crimes against the person ... ... 100 98|in 61 years
'' property ... ... ... 100 41|
BELGIUM. 1850-2. 1883-5.
Tried by the Correctional Tribunals,
for crimes against the person 100 109|in 36 years
'' property ... 100 162|
1840-2. 1883-5.
Tried by the Tribunals for ``Offences'' 100 260|
Tried at Assizes, crimes against the person 100 65|in 46 years
'' '' property 100 21|
ENGLAND. 1857-9. 1884-6.
Tried summarily, for offences ... 100 176 in 30 years.
1835-7. 1884-6.
Criminal cases, against the person 100 143|
'' against property, and for |in 55 years.
circulation of false money ... 100 55|
IRELAND. 1864-6. 1886-8.
Tried summarily ... ... ... 100 95|
Crimes against the person ... .. 100 57|in 25 years.
'' property, and false money 100 52|
PRUSSIA. 1854-6. 1876-8.
Contraventions and ``vols de bois'' 100 l32|in 25 years.
Crimes and offences ... ... 100 134|
GERMANY. 1882-4. 1885-7.
Crimes and offences against public order 100 110|
'' '' the person 100 116|in 6 years.
'' '' property 100 95|
AUSTRIA. 1867-9. 1884-6.
Prisoners condemned for crimes -- 100 122|in 20 years.
'' '' offences ... 100 495|
SPAIN. 1883-4. 1886-7.
Tried for crimes and offences -- 100 {X}3|in 5 years.
'' contraventions ...... 100 113|
The most constant general fact shown by these data is in all cases
the very remarkable increase of slighter delinquencies, side by
side with constancy or slight diminution in crimes against
the person, and a large diminution in crime against property.
This is seen in France, England, Belgium, whilst there is an
increase both of crimes and offences in Austria.
Behind the general fact, however, we must distinguish between the
actual and the apparent.
On the one hand, the decrease of more serious crime against
property is simply due to prisoners electing to be sentenced by
the inferior court, which is at the discretion of the Tribunals in
France, but legally established in Belgium, by the laws of 1838
and 1848, and in England by the Acts of 1856 and 1878--an election
of the slighter but more certain punishment of the magistrates in
preference to going before a jury. Indeed, crimes against the
person, in which there is less power of election, do not exhibit
so marked a decrease; and accordingly we see that in Belgium the
increase of ``correctionalised'' crimes is due far more to crimes
against property (62 per cent in 36 years) than to those against
the person (9 per cent.).
On the other hand, the growth of slighter delinquency is partly
the effect of special enactments, which are constantly creating
new infractions, offences or contraventions. For France may be
mentioned the law of 1832 on eluding supervision, that of 1844 on
the game laws, that of 1857 on the false description of goods for
sale, of 1845 on railway offences, of 1849 on the expulsion of
refugees, of 1873 on drunkenness, and of 1874 on requisition of
horses. I dealt with the statistical results of these laws, and
with the influence of the increasing number of police
agents, in my ``Studies on Criminality in France'' (Rome,
1881); and I will here add only a single observation. If it is
true, as M. Joly says, that other laws, passed since 1826, have
extinguished a few offences, or at least have diminished their
frequency under less severe regulations, yet it is also true that
the new infractions created in the past half-century show far
higher numbers than those of the infractions which have been
extinguished or rendered less easy. So that amongst the 297 per
cent. of increase on the offences tried in France between 1826 and
1887, the element due to legal creation of new infractions must
not be ignored.
It cannot, however, be denied that for certain more frequent
offences we have a real and very noteworthy increase, apart from
any legislative or statistical cause of disturbance.
The same observation may be made in regard to England. There also
the increase of 76 per cent, during thirty years of offences tried
summarily is due in part to new infractions, created by special
legislation, and especially by the Education Act of 1873, under
which there were more than forty thousand infractions in 1878, and
more than sixty-five thousand in 1886.
In regard to this delinquency in England (wherein are included,
over and above real offences, certain infractions corresponding to
the police contraventions of the Italian, French, Belgian and
Austrian codes) it is to be observed that the increase of 76 per
cent. in thirty years is due rather to contraventions than to
offences. And this would establish a remarkable difference
between the variations of delinquency in England and in France.
If we analyse the record of infractions tried summarily in
England, we find that contraventions of the law in respect of
drunkenness account for most of this increase (from 82,196 in 1861
to 183,221 in 1885 and 165,139 in 1886). On the other hand,
offences against the person (assaults) and against property
(stealing, larceny, malicious offences) have not shown so large an
increase.
In fact, if we compare the variations in assaults and thefts in
France and England, we have the following figures:--
ENGLAND.
1861-3. 1879-81.
Prisoners tried summarily for assaults ... ... 100 102
Ditto for stealing, larceny, and malicious
offences ... ... ... ... ... ... ... 100 110
FRANCE.
Cases tried by the Tribunals:
For assault and wounding ... ... ... ... ... 100 134
For simple theft ... ... ... ... ... ... ... 100 116
So that in England not only the total delinquency, but more
especially the commoner offences against the person and against
property show a slighter increase than that which has been
established for the same period in France. Whilst we do not
overlook the greater increase of crimes against the person in
England (coinciding, of course, with the doubling of the
population in fifty-five years), this fact seems to me to prove
the salutary influence of English organisations against certain
social factors which lead up to delinquency (such as the care of
foundlings, the guardianship of the poor, and so forth),
notwithstanding the great development of economic activity, which
is assuredly in no way inferior to that of France. The figures
strengthen my conclusions as to the social factors of crime, and
refute the optimistic theory of Poletti.
But the actual participation of each country in the general
increase of crime in Europe is determined by other causes, outside
of the artificial influences of different codes of law. And the
most general and constant of these causes, in all the various
physical and social environments, is the annual increase of
population, which, by adding to the density of the inhabitants of
each country, multiplies their material and legal relations to one
another, and, consequently, the objective and subjective
constituents of crime.
Taking the official Italian figures, which are also relied on by
M. Levasseur, we find, for the periods corresponding to the
variations of criminality, the following rates of increase in the
population of the different countries. Ireland shows a decrease,
owing to emigration.
Increase.
Italy 22,104,789 in 1863--30,947,306 in 1889 40 per cent.
'' 27,165,553 in 1873--30,565,188 in 1888 12 ''
France 31,858,937 in 1826--38,218,903 in 1887 20 per cent.
Belgium 4,072,619 in 1840-- 5,583,278 in 1885 44 ''
Prussia 21,046,984 in 1852--26,614,428 in 1878 26 ''
Germany 45,717,000 in 1882--47,540,000 in 1887 4 ''
England 13,896,797 in 1831--27,870,586 in 1886 101 ''
'' 20,066,224 in 1861--27,870,586 in 1886 39 ''
Austria 20,217,531 in 1869--23,070,688 in 1886 14 ''
Ireland 5,798,967 in 1861-- 4,777,545 in 1888 decrease 17 ''
It must, however, be observed, with regard to this increase of the
population, firstly that it tells as a factor of criminality
only in so far as it is not neutralised, wholly or in part, by
other influences, mainly social, which prevent crime or render it
less grave. Secondly, it is not right merely to compare the
proportional rates of increase in the population with those of
crime, as was done for instance by M. Bodio, who said that in
Italy, from 1873 to 1883, ``since the population had increased by
7.5 per cent., crime might have increased during the same time by
7.5 per cent., without its being fair to say that it had actually
increased.'' In point of fact, as M. Rossi remarked, since in
Italy, and almost all the European States, the growth of the
population is due to the excess of births over deaths (for
emigration is more numerous than immigration), it is evident that,
when we confine our attention to short periods, the addition to
the population, consisting of children under ten or twelve years,
does not increase crime in an appreciable degree. The deaths, on
the other hand, must be subtracted from all stages of human life,
but especially from the number of those who can and do commit
crimes and offences.
Now, as we cannot in this place go into detail, I must confine
myself to the statement of a few characteristic facts, as
illustrated by European crime. Thus we perceive the influence of
the great famine of 1846-7 on crimes against property in France
and Belgium; the rapid oscillations of crime in Ireland,
indicating the unstable political and social conditions of the
country; and the parallel movements of crime in, France and
Prussia. We see, indeed, a constant diminution of crime for the
period between 1860 and 1870, followed (after the
statistical disturbance of the terrible year 1870-1) by a period
of serious and continued increase of crime, resulting from social
and economic conditions, as shown especially by the increase of
vagrancy and theft since 1875.
All these general facts go to prove the close and intimate
connection between crime and the aggregate of its various
constituents. So that, without pursuing more detailed inquiries
into certain social factors of crime, which are capable of
statistical enumeration, such as the increase in the number of the
police, the abundance or scarcity of corn and wine, the spread of
drunkenness, family circumstances, increase of personal
possessions, the facility or otherwise of the settlement of
disputes, commercial and industrial crises, the rate of wages, the
variation from year to year of the general conditions of
existence, and so forth, coincident with the development of
education, encouragements to thrift and the organisation of
charity, we must now proceed to draw from these statistical data
the most important conclusions of criminal sociology.
I.
Criminal statistics show that crime increases in the aggregate,
with more or less notable oscillations from year to year, rising
or falling in successive waves. Thus it is evident that the level
of criminality in any one year is determined by the different
conditions of the physical and social environment, combined with
the hereditary tendencies and occasional impulses of the
individual, in obedience to a law which I have called, in analogy
with chemical phenomena, the law of criminal saturation.
Just as in a given volume of water, at a given temperature, we
find a solution of a fixed quantity of any chemical substance, not
an atom more or less, so in a given social environment, in certain
defined physical conditions of the individual, we find the
commission of a fixed number of crimes.
Our ignorance of many physical and psychical laws and of
innumerable conditions of fact, will prevent us from obtaining a
precise view of this level of criminality. But none the less is
it the necessary and inevitable result of a given physical and
social environment. Statistics show us, indeed, that the
variations of this environment are always attended by
consequential and proportional variations of crime. In France,
for instance (and the observation will be found to apply to every
country which possesses an extended series of criminal
statistics), the number of crimes against the person varies but
little in sixty-two years. The same thing holds good for England
and Belgium, because their special environment is also less
variable, by reason that hereditary dispositions and human
passions cannot vary profoundly or frequently, except under the
influence of exceptional disturbances of the weather, or of social
conditions. In fact, the more serious variations in respect of
crimes against the person in France have taken place either during
political revolutions, or in years of excessive heat, or of
exceptional abundance of meat, grain, and wine. This is
illustrated by the exceptional increase of crime from 1849 to
1852. Minor offences against the person, on the contrary, which
are more occasional, assaults and wounding, for example, vary in
the main, as to their annual oscillations, with the abundance of
the wine harvest, whilst in their oscillations from month to month
they display a characteristic increase during the vintage periods,
from June to December, notwithstanding the constant diminution of
other offences and crimes against the person.
On the other hand, crimes against property, and still more
offences against property, show wide oscillations on account of
the variability of the special environment, which is almost always
in a condition of unstable equilibrium, as in periods of scarcity,
and of commercial, financial and industrial crises, and so forth,
whilst they are subject also to the influence of the physical
environment. Crimes and offences against property display
extraordinary increases in the severest winter seasons, and
diminutions in milder winters.
And this correspondence between the more general, powerful, and
variable physical and social factors of crime, as well as
its more characteristic manifestations such as thefts, wounding,
and indecent assaults, is so constant and so direct that, when I
was studying the annual movement of criminality in France, and
perceived some extraordinary oscillation in the crimes and
offences, I foresaw that in the annals of the year I should find
mention of an agricultural or political crisis, or an exceptional
winter or summer in the records of the weather. So that with a
single column of a table of criminal statistics I was able to
reconstruct the historical condition of a country in its more
salient features. In this way psychological experiment again
confirmed the truth of the law of criminal saturation.
Not only so, but it may be added that as, in chemistry, over and
above the normal saturation we find that an increased temperature
of the liquid envelopes an exceptional super-saturation, so in
criminal sociology, in addition to the ordinary saturation we are
sometimes aware of an excess of criminal saturation, due to the
exceptional conditions of the social environment.
Indeed it is to be observed not only that the main and typical
criminality has a sort of reflex criminality depending upon it,
but also that an increase of more serious or more frequent crimes
induces a crop of resistance to and assaults upon the guardians of
public order, together with false witness, insults, avoidance of
supervision, absconding, and the like. Certain crimes and
offences also have their complementary offences, which from being
consequences become in their turn the causes of new offences.
Thus concealment and purchase of stolen goods increase
simultaneously with theft; homicide and wounding lead to the
illegal carrying of arms; adultery and abusive language to duels,
and so forth.
Beyond this there are sundry kinds of excessive criminal
saturations which are exceptional, and therefore transitory.
Ireland and Russia present us with conspicuous examples in their
political and social crimes; and similarly America, during
election contests. So in France before and after December 2 1851,
the harbouring of criminals, which in no other quadrennial period
from 1826 to 1887 exceeds a record of fifty, rises in 1850-53 as
high as 239. So during the famine of 1847, theft of grain rises
in France to forty-two in a single year, whilst for half a century
it barely reaches a total of seventy-five. It is notorious,
again, that in years of dear provisions, or severe winters, a
large number of thefts and petty offences are committed for the
sole object of securing maintenance within the prison walls. And
in this connection I have observed in France that other offences
against property decrease during a famine, by an analogous
psychological motive, thus presenting a sort of statistical
paradox. Thus, for example, I have found that as oidium and
phylloxera are more effective than severe punishments in
diminishing the number of assaults and cases of unlawful wounding,
so famine succeeds better than the strongest bars, or dogs kept
loose in the prison yards, in preventing the escape of prisoners,
who at such times are detained by the advantage of being supported
at the public expense.
For a parallel reason in 1847, a famine year, whilst all
crimes and offences against property increased in an extraordinary
fashion, only the crimes of theft and breach of confidence by
household servants showed a characteristic decrease, because such
persons were deterred by the fear of being dismissed by their
employers during the time of distress. The figures are as
follows:--
FRANCE (Assizes). 1844. 1845. 1846. 1847.
Crimes against property ... 3,767 3,396 3,581 4,235
Breach of confidence by
household servants ... ... 136 128 168 104
Thefts by the same ... ... 1,001 874 924 896
M. Chaussinand adds, by way of confirmation of my statement that
during economic crises, such as famine and high prices of grain,
the number of cases of escape from justice also decreases, FOR
``thieves and tramps prefer arrest, in order to escape from the
misery which afflicts them outside the prison walls.''
Two fundamental conclusions of criminal sociology may be drawn
from this law of criminal saturation.
The first is that it is incorrect to assert a mechanical
regularity of crime, which from Quetelet's time has been much
exaggerated. There has been a too literal insistance on his
famous declaration that ``the budget of crime is an annual
taxation paid with more preciseness than any other''; and that it
is possible to calculate beforehand how many homicides, poisoners,
and forgers we shall have, because ``crimes are generated every
year in the same number, with the same punishments, in the same
proportions.'' And one constantly meets with this echo of the
statisticians, that ``from year to year crimes against the person
vary at the most by one in twenty-five, and those against
property by one in fifty''; or, again, that there is ``a law of
limitation in crime, which does not vary by more than one in
ten.''
This opinion, originated by Quetelet and other statisticians after
an inquiry confined to the more serious crimes, and to a very
short succession of years, has already been refuted, in part by
Maury and Rhenisch, and more plainly by Aberdare, Mayr,
Messedaglia and Minzloff.
In fact, if the level of criminality is of necessity determined by
the physical and social environment, how could it remain constant
in spite of the continual variations, sometimes very considerable,
of this same environment? That which does remain fixed is the
proportion between a given environment and the number of crimes:
and this is precisely the law of criminal saturation. But the
statistics of criminality will never be constant to one rule from
year to year. There will be a dynamical but not a statical
regularity.
Thus the element of fixity in criminal sociology consists in
asserting, not the fatality or predestination of human actions,
including crimes, but only their necessary dependence upon their
natural causes, and therewith the possibility of modifying effects
by modifying the activity of these causes. And, indeed, even
Quetelet himself recognised this when he said, ``If we change the
social order we shall see an immediate change in the facts which
have been so constantly reproduced. Statisticians will then have
to consider whether the changes have been useful or injurious.
These studies therefore show how important is the mission of
the legislator, and how responsible he is in his own sphere for
all the phenomena of the social order.''
The second consequence of the law of criminal saturation, one of
great theoretical importance, is that the penalties hitherto
regarded, save for a few platonic declarations, as the best
remedies for crime, are less effectual than they are supposed to
be. For crimes and offences increase and diminish by a
combination of other causes, which are far from being identical
with the punishments lightly written out by legislators and
awarded by judges.
History affords us various impressive examples.
The Roman Empire, when society had fallen into extreme corruption,
recalling many symptoms of our own epoch, vainly promulgated laws
which visited celibacy, adultery, and incest--``venus
prodigiosa''--with ``the vengeance of the sword and punishments of
the utmost severity.'' Dio Cassius (``Hist. Rom.,'' lxxvi. 16)
says that in the city of Rome alone, after the law of Septimus
Severus, there were three thousand charges of adultery. But the
stringent laws against these crimes continued to the days of
Justinian, which shows that the crimes had not been checked; and,
as Gibbon says (``Decline and Fall,'' ch. 44), the Scatinian law
against ``venus nefanda'' had fallen into abeyance through lapse
of time and the multitude of offenders. Yet we see in our own
days, as in France, that there are some who would oppose celibacy
with no other remedy than a law passed for the purpose.
Since mediaeval times the increasing gentleness of manners
has caused a diminution of crimes of blood, once so numerous that
there was need of sundry ``truces'' and ``peaces,''
notwithstanding the harsh penalties of previous centuries. And Du
Boys called Cettes simple because, after giving a table of
shocking punishments in the Germany of his day (the fifteenth
century), he marvelled that all these pains and torments had not
prevented the increase of crimes.
Imperial Rome deluded herself with the idea that she could stamp
out Christianity with punishments and tortures, which, however,
only seemed to fan the flame. In the same way Catholic Europe
hoped to extinguish Protestantism by means of vindictive
persecution, and only produced the opposite effect, as always
happens. If the Reformed faith does not strike root in Italy,
France, and Spain, that must be explained by psychological reasons
proper to those nations, independently of the stake and of
massacres, for it did not strike root even when religious belief
was liberated from its fetters. This does not prevent all
governments in every land from continuing to believe that, in
order to arrest the spread of certain political or social
doctrines, there is nothing better than to pass exceptional penal
laws, forgetting that, with ideas and prejudices just as with
steam, compression increases the expansive force.
Popular education has swept away the so-called crimes of magic and
witchcraft, though they had withstood the most savage punishments
of antiquity and mediaeval times.
Blasphemy, in spite of the slitting of the nose, tongue, and
lips, enacted by the penal laws, and continued in France from
Louis XI. to Louis XV., was very common in the middle ages, being
(like witchcraft, trances, and self-immurement) a pathological or
abnormal manifestation of religious emotion, which in those times
had an extraordinary development. And the habit of blasphemy
diminished under the psychological and social evolution of our own
days, precisely when it ceased to be punished. Or, rather, it
continued to this day, as in Tuscany, where the Tuscan penal code
(Art. 136), which survived until December 31, 1889, still punished
it with five years' imprisonment. The illusion as to the efficacy
of punishment is so deeply rooted that a proposal was made in the
Senate, in 1875, to include this penalty in the new Italian penal
code. And at Murcia, in Spain, trials for blasphemy have lately
been re-established.
Mittermaier observed that, if in England and Scotland there were
far fewer cases of false witness, perjury, and resistance to
authority than in Ireland and on the Continent, this must be due
in great measure to national character, which is one of the
hereditary elements of normal as well as of abnormal and criminal
life.
Thus even apart from statistics we can satisfy ourselves that
crimes and punishments belong to two different spheres; but when
statistics support the teaching of history, no doubt can remain as
to the very slight (I had almost said the absence of any)
deterrent effect of punishments upon crime.
We may indeed derive a telling proof from statistical
records, by referring to the progress of repression in France,
over a period of sixty years, as I have already done in my
``Studies'' previously quoted.
When we speak of the repression of crime, we must first of all
distinguish between that which is due to the general character of
penal legislation, more or less severe, and that which is secured
by the administration by the judges of the law as it is. Now, so
far as legislation is concerned, the growth of crime in France
certainly cannot be attributed to the relaxation of punishment.
The legislative reforms which have taken place, especially in 1832
and 1863, on the general revision of the penal code, modified
punishments to some extent, but with the definite purpose and
result, as shown by the same official records of criminal
statistics, of strengthening the repressive power of the law by
providing for the application of less aggravated punishments. The
repugnance of juries and judges against excessive punishments, and
their preference for acquittal, is, indeed, a psychological law.
Moreover, it is well known that if there is in Europe a penal code
less mild than any of the rest, it is that of France, which is the
oldest of those now in force, and still retains much of the
military rigour of its origin. And it must be added that for
certain crimes, as for rapes and indecent assaults, which are
nevertheless constantly increasing in France, the punishments have
been increased by several successive enactments. The same is true
of extortion by threats of exposure, which occurs more and more
frequently, as M. Joly also observes, in spite of the severe
punishments of the law of 1863.
The question, therefore, is reduced to judicial repression, the
progress whereof must be observed in the past half-century, for it
has evidently the greatest influence upon crime. Laws, in fact,
have no real operation if they are not applied more or less
rigorously; for in the social strata which contribute most to
criminality the laws are known only by their practical
application, which is also the only truly defensive function,
carrying with it a special preventive of the repetition of the
crime by the person condemned.
Thus the arguments of jurists and legislators have not much value
for the criminal sociologist when they are based solely on the
psychological illusion that the dangerous classes trouble
themselves about the shaping of a penal code, as the more
instructed and less numerous classes might well do. The dangerous
classes attend to the sentences of the judges, and still more to
the execution of those sentences, than to the articles of a code.
In this connection I cannot agree with the forecast of Garofalo as
to the perilous effect of the abolition of capital punishment in
Italy on the imagination of the people; for he was well aware
that, though it is defined in various articles of the old code,
and in about sixty sentences every year, the punishment of death
has not been carried out, which is the essential point, for the
last fifteen years.
The elements which determine the greater or less severity of
judicial repression are of two kinds:--
1. The ratio of persons acquitted to the total number of
prisoners put on their trial.
2. The ratio of the severest punishments to the total number of
prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a
difference in the severity of repression as such, for condemnation
or acquittal ought to point merely to the certainty or otherwise
of guilt, the sufficiency or insufficiency of the evidence. But,
as a matter of fact, the proportional increase of convictions does
partly represent greater severity on the part of the judges, and
still more of the juries, who display it by attaching weight to
somewhat unconvincing evidence, or in too readily admitting
circumstances which tend to aggravate the offence. This is
confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important,
for it is a psychological law that man, in regard to punishment as
to any other kind of suffering, is more affected by the certainty
than by the gravity of the infliction. And it is to the credit of
criminal theorists of the classical school that they have steadily
maintained that a mild yet certain punishment is more effectual
than one which, being severe in itself, holds out a stronger hope
of escaping it. Nevertheless it is a fact that they have carried
the theory too far, by seeking to obtain excessive mitigations and
abbreviations of punishment, without exerting themselves to secure
certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident and continuous,
both at the Assizes and in the Tribunals, except for the last
quadrennial period. This may of course indicate a more careful
management of the trials by the judges; but it certainly shows
an undoubted tendency towards increased judicial severity,
which, meanwhile, has not arrested the growth of crime.
PERCENTAGE OF ACQUITTALS IN FRANCE.
Tried in
Assize Courts. Tribunals. Total
1826-30 ... ... 39 ... ... 31 ... ... 32
1831-5 ... ... 42 ... ... 28 ... ... 30
1836-40 ... ... 35 ... ... 22 ... ... 23
1841-5 ... ... 32 ... ... 18 ... ... 19
1846-50 ... ... 36 ... ... 16 ... ... 17
1851-5 ... ... 28 ... ... 12 ... ... 13
1856-60 ... ... 24 ... ... 10 ... ... 7
1861-5 ... ... 24 ... ... 9 ... ... 6
1866-9 ... ... 23 ... ... 17 ... ... 8
1872-6 ... ... 20 ... ... 6 ... ... 6
1877-81 ... ... 23 ... ... 5 ... ... 6
1882-6 ... ... 27 ... ... 6 ... ... 6
PERCENTAGE OF ACQUITTALS IN ENGLAND.
Criminal Proceedings. Summary Proceedings.
1858-62 ... ... ... 25 ... ... ... 34
1863-7 ... ... ... 24 ... ... ... 31
1868-72 ... ... ... 26 ... ... ... 24
1873-7 ... ... ... 25 ... ... ... 21
1878-82 ... ... ... 24 ... ... ... 21
1883-7 ... ... ... 22 ... ... ... 20
Here also it appears that the growth of crime in England, though
less than in France, is not due to the weakening of judicial
severity through the greater number of acquittals. The number
has, in fact, constantly diminished, especially in summary
proceedings, which is just where the greatest increase of crime is
manifest.
Passing now to the other factor of judicial repression, that is to
the percentage of persons sentenced to graver kinds of punishment,
we have to take into account, amongst assize cases in France, the
prisoners sentenced to death, penal servitude, and solitary
imprisonment, excluding such as are sentenced to correctional
punishment (simple imprisonment and fines) as well as young
prisoners sent to reformatories; and in regard to the Tribunals,
we must take the percentages of those who are condemned to
imprisonment, which is the most serious punishment, the remainder
being fined, or handed over to their parents, or sent to
reformatories.
Condemned at Assizes Condemned
FRANCE. ---------------------------- by Tribunals
To death. To penal servitude. to imprisonment.
1826-30 ... ... 2.5 ... ... 58 ... ... ... 61
1831-5 ... ... 1.5 ... ... 42 ... ... ... 65
1836-40 ... ... .7 ... ... 37 ... ... ... 65
1841-5 ... ... 1 ... ... 40 ... ... ... 61
1845-50 ... ... 1 ... ... 39 ... ... ... 62
1851-5 ... ... 1.1 ... ... 48 ... ... ... 61
1856-60 ... ... 1 ... ... 49 ... ... ... 61
1861-5 ... ... .6 ... ... 48 ... ... ... 64
1866-9 ... ... .5 ... ... 47 ... ... ... 68
1872-6 ... ... .7 ... ... 49 ... ... ... 66
1877-81 ... ... .7 ... ... 50 ... ... ... 66
1882-6 ... ... 1 ... ... 49 ... ... ... 65
These figures, if they do not show (as might have been foreseen)
so large an increase of severity as in the percentages of
acquittals, yet prove that repression has not diminished even in
the serious character of the punishments. On the other hand, we
can see that, in the assize cases, excluding the first period,
before the revision of 1832, whilst capital punishment shows a
certain diminution (especially due to the laws of 1832, 1848, &c.,
which reduced the number of cases involving the death penalty),
though continuing at a certain level since 1861, sentences of
penal servitude and solitary confinement show a continued
increase from the second period, and especially since 1851.
So also at the Tribunals, except for a few oscillations, as in the
ninth period, there is a sustained increase of repression.
And the fact that this increased ratio of the more serious
punishments actually indicates a greater severity on the part of
the judges can only be contested on the ground of a simultaneous
increase of the more serious crimes and offences. On the other
hand, we note in France a general decrease of crimes against the
person (except for assaults on children), and still more of crimes
against property.
There is also a striking confirmation in the corresponding
acquittals and condemnations of a more serious character. We see,
in fact, that the more serious condemnations increase precisely
when the acquittals decrease (as in the 4th, 6th, 7th, and 10th
periods at the Assizes, and the 2nd, 5th, and 8th periods at the
Tribunals); whilst in the years of more frequent acquittals there
is also a diminution of more serious punishments, as in the 5th
and 8th periods at the Assizes. That is to say, the two sets of
statistics actually indicate a greater or less severity on the
part of juries and judges.
This firmer repression is demonstrated in spite of the continued
increase of attenuating circumstances, which rose at the Assizes
from 50 per cent. in 1833 to 73 per cent. in 1806, and at the
Tribunals from 54 per cent. in 1851 to 65 per cent. in 1886.
Nevertheless it is a fact that the number of cases tried by
default at the Assizes has continuously decreased from a
yearly average of 647 in 1826-30 to one of 266 in 1882-6.
For Italy we have the following figures:
{column missing head?}
PRETORS. TRIBUNALS. ASSIZES.
------------------------------------------
Condemned to Imprisonment. Condemned Penal Servitude
Slighter imprisonment. to death. for life. temporary punishts
1874 21 79 1.2 5.6 65 28
5 22 80 1.3 6.5 63 29
6 23 81 1.3 6.1 66 27
7 24 82 1.5 7.2 66 25
8 25 85 1 7.6 67 25
9 25 -- 1.2 6.3 67 25
1880 26 -- 1.3 5.5 68 25
1 24 81 1.7 6.1 65 27
2 23 81 1.5 6 66 27
3 23 81 1.7 5.4 64 29
4 23 81 1.3 5.3 64 30
5 23 81 1.6 5.4 63 30
6 21 81 1.6 5.7 62 30
7 21 83 1.1 5.8 63 30
8 21 82 1.2 4.7 65 29
Thus, once more, there has been no relaxation of repression,
except in late years for those condemned by the Pretors to penal
servitude for life.
The conclusion, therefore, is still the same, namely that judicial
repression, in France and Italy, has grown stronger and stronger,
whilst criminality has increased more and more.
In this fact, again, which confutes the common opinion that the
sovereign remedy of crime is the greater rigour of punishment, we
may fairly find a positive proof that the penal, legislative, and
administrative systems hitherto adopted have missed their aim,
which can be nothing else than the defence of society against
criminals.
Henceforth we must seek, through the study of facts, a
better direction for penal legislation as a function of society,
so that, by the observation of psychological and sociological
laws, it may tend, not to a violent and always tardy reaction
against crime already evolved, but to the elimination or diversion
of its natural factors.
This fundamental conclusion of criminal statistics is so important
that we must confirm it by adding to the statistical data the
general laws of biology and sociology. This is the more necessary
because my position as first stated has met with some criticism.
In the first place, it is easily seen, when we compare the total
result of crime with the varied character of its anthropological,
physical, and social factors, that punishment can exert but a
slight influence upon it. Punishment, in fact, by its special
effect as a legal deterrent, acting as a psychological motive,
will clearly be unable to neutralise the constant and hereditary
action of climate, customs, increase of population, agricultural
production, economic and political crises, which statistics
invariably exhibit as the most potent factors of the growth or
diminution of criminality.
It is a natural law that forces cannot conflict or neutralise each
other unless they are of the same kind. The fall of a body cannot
be retarded, changed in direction or accelerated, save by a force
homogeneous with that of gravity. So punishment, as a
psychological motive, can only oppose the psychological factors of
crime, and indeed only the occasional and moderately energetic
factors; for it is evident that it cannot, as a preliminary
to its application, eliminate the organic hereditary factors which
are revealed to us by criminal anthropology.
Punishment, which has professed to be such a simple and powerful
remedy against all the factors of crime, is therefore a panacea
whose potency is far beneath its reputation.
We must bear in mind a fact which is familiar enough, though it
has been too often forgotten by legislators and criminalists.
Society is not a homogeneous aggregate, but on the contrary an
organism, like every animal organism, composed of tissues of
varying structure and sensibility. Every society, in fact, with
its progressive and increasingly distinctive needs and
occupations, is a product of the union of social classes which
differ greatly in their organic and psychical characteristics.
The physical constitution, the habits, sentiments, ideas, and
tendencies of one social stratum are far from being the same as
those of other strata. Here again we have, as Spencer would say,
the law of evolution through a departure from the homogeneous to
the heterogeneous, from the simple to the complex, or, in the
words of Ardigo, a natural formation by successive distinctions.
Amongst savage tribes this distinction of the social strata does
not exist, or it is far less marked than in barbarian societies,
and still less than in civilised societies.
Every schoolmaster with a bent for psychological observation
separates his pupils into three classes. There is the class of
industrious pupils of good disposition, who work of their own
accord, without calling for strict discipline; that of the
ignorant and idle (degenerate and of weak nervous force) from whom
neither mildness nor severity can obtain anything worth having;
and that of the pupils who are neither wholly industrious nor
wholly idle, and for whom a discipline based on psychological laws
may be genuinely useful.
This is the case with large bodies of soldiers or of prisoners,
for all associations of men, and for society as a whole. These
partial organisms, due to the constant relationships of a life
more or less in common, are in this respect reproductions of
society as a whole, just as a fragment of crystal reproduces the
characteristics of the unbroken crystal.[13]
[13] There is, however, some difference between the manifestation
of the activity of a group of men and that of the aggregate
society. Between psychology which studies the individual, and
sociology which studies the society, I think there is room for a
collective psychology, to study more or less defined groups.
The phenomena of these groups are analogous, but not identical
with those of the sociological body properly so called, according
as the union is more or less definite. Collective psychology has
its field of observation in all unions, however occasional, such
as the public street, the markets, workshops, theatres meetings,
assemblies, colleges, schools, barracks, prisons, and so forth.
Many practical applications of the data of collective psychology
might be given. An example will be found in a future chapter,
when I come to consider the psychology of the jury.
In the same way, from the standpoint of criminal sociology, we may
divide the social strata into three analogous categories--the
highest, which commits no crimes, organically upright, restrained
only by the authority of the moral sense, of religious sentiments
and public opinion, together with the hereditary transmission of
moral habits. This class, for which no penal code would be
necessary, is unfortunately very small; and it is far smaller if,
in addition to legal and apparent criminality, we also take
into account that social and latent criminality through which many
men, who are upright so far as the penal code is concerned, are
not upright by the standard of morality.
Another class, the lowest, is made up of individuals opposed to
all sense of uprightness, who, being without education,
perpetually dragged back by their material and moral destitution
into the primitive forms of the brute struggle for existence,
inherit from their parents and transmit to their children an
abnormal organisation, adding degeneration and disease, an
atavistic return to savage humanity. This is the nursery of the
born criminals, for whom punishments, so far as they are legal
deterrents, are useless, because they encounter no moral sense
which could distinguish punishment by law from the risk which also
attends upon every honest industry.
Lastly we have the other class of individuals who are not born to
crime, but are not firmly upright, alternating between vice and
virtue, with imperfect moral sense, education and training, for
whom punishment may be genuinely useful as a psychological motive.
It is just this class which yields the large contingent of
occasional criminals, for whom punishments are efficacious if they
are directed in their execution by the axioms of scientific
psychology, and especially if they are aided by the social
prevention which reduces the number of opportunities of committing
crimes and offences.
Once again I must express my agreement with M. Garofalo, who, in
dealing with this subject, insists on the necessity of
distinguishing between the different classes of criminals before
deciding as to the efficacy of punishments.
Yet this conclusion as to the very limited efficiency of
punishments, which is forced upon us by facts, and which, as
Bentham said, is confirmed by the application of each punitive
act, precisely because its previous application did not succeed in
preventing crime, is directly opposed to general public opinion,
and even to the opinion of jurists and legislators.
On the inception or the growth of a criminal manifestation,
legislators, jurists, and public think only of the remedies, which
are as easy as they are illusory, of the penal code, or of some
new Act of repression. Even if this were useful, which is very
problematical, it has the inevitable disadvantage of making men
ignore other remedies, far more profitable, albeit more difficult,
of a preventive and social kind. And this tendency is so common
that many of those who have dwelt upon or accepted the positive
movement of the new school, not long after they had admitted that
I was in the right, declared impulsively that ``the constant
commission of crime arises from the lack of timely repression,''
and that ``one of the chief causes of the growth of crime in Italy
is the mildness of our punishments.'' Or else they forgot to ask
themselves the elementary question of criminal sociology, whether
and how far punishments have a genuinely defensive force. This is
just what happens with pedagogues who enter upon long discussions
on the various methods and means of education, without
asking themselves beforehand whether and how far education has the
actual power of modifying the temperament and character which
heredity stamps upon every individual.
These conclusions take us far beyond the limit of penal severity,
and at the same time they suffice to combat the objection commonly
raised against those who think, like ourselves, that repressive
justice ought to concern itself not with the punishment of past
crime, but with the prevention of future crime. For whilst the
advocates of severity, and those whom I will call the
``laxativists,'' virtually think (apart from a few platonic
statements) only of punishments as remedies of offences, we on the
other hand believe that punishments are merely secondary
instruments of social self-defence, and remedies ought to be
adapted to the actual factors of the offence. And since the
social factors are most capable of modification, so we say with
Prins that ``for social evils we require social cures.''
M. Tarde, then, was not quite accurate in his remark that my
conviction as to the very slight efficacy of punishments is a mere
consequence of my ideas on the anthropological and physical
character of crime, and that, ``on the contrary, the
preponderating importance which he has assigned to the social
causes logically debars him from accepting this conclusion.'' As
a matter of fact, punishment regarded as a psychological motive so
far as it is a legal deterrent, and as a physical motive so far as
it implies the confinement of the person condemned, would more
naturally belong, in abstract logic, to the biological and
physical theory of crime. Whereas it is precisely because I
recognise the influence of social environment, in addition, that
experimental logic convinces me that punishment is not an
efficacious remedy of crime, unless forces are applied beforehand
to neutralise, or at any rate to counteract, the social factors of
crime.
And if this is not a new conclusion, as one of our critics
observes by way of reproach--as though it were not one of the
characteristics of truth to repeat itself persistently, however
much it may be forgotten or even opposed--we must nevertheless
remark that it is now repeated with a mass of new observations and
definite applications, which give it a force unknown to mere
logical deductions.
The classical school has concerned itself simply with mitigation
of punishment as compared with mediaeval excess; and for this
reason, because every age has its own mission, it could not also
concern itself with the prevention of crimes, which is far more
useful and efficacious. A few isolated thinkers, it is true,
wrote a few bold and far-reaching pages on preventive methods in
opposition to the numerous volumes on punishment; but their words
had no effect upon criminalists and legislators, because science
had not yet undertaken the positive and methodical observation of
the natural factors of crime.
I will confine myself to a few examples, in order to show that
amongst practical men, as amongst public officials and
legislators, the illusion that punishments are the true panacea of
crime is always predominant.
Practical men declare that ``the prohibitive penal law ought to be
regarded as the first and most important of preventive laws.''
The prefets in their circulars, being concerned about the
increase of crime, put forward the most vigilant and severe
repression as a sovereign remedy. A counsellor of the French Cour
de Cassation writes that ``in a worthy system of social police
there is no better guarantee for order and safety than
intimidation.'' The Keeper of the Seals, in his report on French
penal statistics for 1876, speaking of the continued increase of
indecent assaults, comes to the conclusion that ``in any case,
only firm and energetic repression can avail against a lamentable
increase of crimes against morality.'' And more recently another
Keeper of the Seals ended his report on the statistics of 1826 to
1880 by observing that ``the growth of crime can only be opposed
by an incessantly vigorous repression.'' M. Tarde agreed with
this conclusion, saying that ``if crimes are only, as has been
said, railway accidents of a society travelling at full speed, it
must not be forgotten that, the faster the train, the stronger
must be the brake . . . and it is certain that such a state of
affairs demands an increase or a new departure of repression and
punishment.''
It may be admitted that our conclusion is not a novelty; but, as
Stuart Mill said, there are two ways of effecting useful
innovations, to discover what was not known before, or else to
repeat with new demonstrations the truths which had been
forgotten.
And this illusion as to the influence of punishments is so
widespread that it is well to inquire into its historic and
psychological arguments; for, as Spencer says, in order to decide
as to the value of an idea, it is useful to examine its genealogy.
We may pass by the foundation of primitive vengeance, which from
the age of private combats passed into the spirit and form of the
earliest penal laws, and still subsists as a more or less
unconscious and enfeebled residuum in modern society. We may also
pass by the hereditary effect of the traditions of mediaeval
severity, which excite an instinctive sympathy for stern
punishment in connection with every crime.
But one of the main reasons of this tendency is an error of
psychological perspective, whereby men have forgotten the profound
differences of the ideas, habits, and sentiments of the various
social strata, concerning which I have spoken above. Through this
forgetfulness the honest and instructed classes confound their own
idea of the penal law, and the impression it makes upon them, with
the idea and the impression of the social classes from which the
majority of criminals are recruited. This has been remarked upon
by Beccaria, Carmignani, and Holtzendorff amongst the classical
criminalists, and by Lombroso and others of the new school who
have studied the slang and literature of criminals, which are
their psychological mirror. Again, it is forgotten that for the
higher classes, apart from their physical and moral repugnance
against crime, which is the most powerful repelling force, there
is the fear of public opinion, almost unknown amongst the classes
which have stopped short at a lower stage of human
evolution.
For the higher classes one example may suffice. It is the fact
observed upon by Mr. Spencer, that gambling debts and Stock
Exchange bargains are scrupulously discharged, though for them
there is neither penal obligation nor evidence in writing. And it
may be added that imprisonment for debt never promoted the
fulfilment of contracts, nor has its abolition discouraged it.
As for the lower classes, one visit to a prison suffices. There,
if you ask a prisoner why the punishment did not deter him from
the crime, you generally get no answer, because he has never
thought about it. Or else he replies, as I have often found, that
``if you were afraid of hurting yourself when you went to work,
you would give up working.'' These indeed are what one would
expect to be the feelings prevailing amongst the lower social
strata, to whom honest sentiments and ideas, which for us are
traditional and organic, come very late--just as Mr. Stanley
observed that the people in Central Africa are only now beginning
to employ stone guns, which in past ages were used in Europe.
Another fallacy which helps to strengthen confidence in
punishments is that the effect of exceptional and summary laws is
treated on the same basis as that of the ordinary codes, slow and
uncertain in their procedure, which saps all their force by the
chance of immunity, and the interval between the unlawful act and
its legal consequence.
Lombroso and Tarde, indeed, have confronted me with
historic examples of vigorous and even savage repressions, whereby
it was possible to stamp out some epidemic crime. But these
examples are not conclusive, for I have shown that, as soon as
these exceptional repressions were at an end, as, for instance,
after the death of Pope Sixtus V., brigandage and other crimes
were persistently renewed. But my main rejoinder is this, that
these exceptional repressions depend upon the jus belli; and
therefore cannot enter into the ordinary and constant methods of
penal administration. This may not have the effect of an
extraordinary repression, secured by a somewhat unscrupulous
promptitude, which strikes innocent and guilty alike; and thus it
is impossible to treat as equal, or even to compare, the influence
of methods which are essentially different.
Another false comparison is drawn between the effective force of
various punishments, and their potentiality is confounded, whereas
it is necessary to distinguish the punishment of the written code
from that of the judge, and still more from that carried into
execution. In fact it is only natural that punishment should more
or less terrify the criminal who has been judged and is about to
be condemned; but this in no way proves its efficacy, which should
have been displayed by the menace of the law in guarding the
prisoner against the crime. Even with the death penalty, there
are many instances of condemned persons who, through congenital
insensibility, submit to it cynically. Moreover, for such as have
been overwhelmed with terror when the moment of execution arrived,
the utmost that this fact can prove is that they are so
constituted as to give themselves up completely to the impression
of the moment, without the energy to resist it. In other words,
so long as the punishment is distant and uncertain, they were not
terrified, but having always yielded to the impression of the
moment, they yielded to the criminal impulse.
For other punishments, also, it is known that punitive methods,
even when not contrary to the law, as they sometimes are in Italy,
are always less stern than simple folk imagine when they read the
codes and the sentences. And criminals naturally judge of
punishments by their own experience, that is to say, in accordance
with their practical application, and not with the more or less
candid threats of the lawmaker.
If we add to vindictive feeling, historic traditions, oblivion of
bio-psychic differences of the social strata, the confounding of
exceptional laws and ordinary punishments, and of the varying
effective force of punishment, the attitude of the public mind and
the natural tendency of criminalists to think only of their two
syllogistic symbols of crime and punishment--if we further add the
easy-going idea of the multitude, that the inscribing of a law in
the statute-book is a sufficient remedy for social diseases, we
can readily understand how this exaggerated and illusory
confidence in punishment is so persistent, and crops up in every
theoretical or practical discussion, in spite of the strong
refutation which is daily afforded by facts and psychological
observation.
All human actions, like the actions of animals, are developed
between the two opposite poles of pleasure and pain, by the
attraction of the former and the repulsion of the latter. And
punishment, which is one of the social forms of pain, is always a
direct motive in human conduct, as it is also an indirect guide,
by virtue of its being a sanction of justice, unconsciously
strengthening respect for the law. But still this psychological
truth, whilst it demonstrates the natural character of punishment,
and the consequent absurdity of abolishing it as absolutely void
of efficacy, does not destroy our conclusion as to the slight
efficacy of punishment as a counteraction of crime.
We have only to distinguish between punishment as a natural
sanction and punishment as a social sanction in order to see how
the really great power of natural punishment almost entirely
disappears in social punishment, which in all our systems is but a
sorry caricature.
The mute but inexorable reaction of nature against every action
which infringes her laws, and the grievous consequences which
inevitably follow for the man who has infringed them, constitute a
repression of the most efficacious kind, wherein every man,
especially in the earlier years of his life, receives daily and
never to be forgotten lessons. This is the discipline of natural
consequence, which is a genuine educational method, long since
pointed out by Rousseau, and developed by Spencer and Bain.
But in this natural and spontaneous form, the punishment derives
its whole force from the inevitable character of the consequences.
And it is one of the few observations of practical psychology
which have been made and repeated by the classical students
of crime, that in punishment, and especially the punishment of
death, the certainty is more effectual than the severity. And I
will add that even a small uncertainty takes away from a pain
which we fear, much of its repelling force, whereas even a great
uncertainty does not destroy the attraction of a pleasure which we
are hoping for.
Here, then, we have a primary and potent cause of the slight
efficacy of legal punishments, in the picturing of the many
chances of escape. First there is the chance of not being
detected, which is the most powerful spring of all contemplated
crime: then the chance, in case of detection, that the evidence
will not be strong enough, that the judges will be merciful, or
will be deceived, that judgment may be averted amidst the
intricacies of the trial, that clemency may either reverse or
mitigate the sentence. These are so many psychological causes
which, conflicting with the natural fear of unpleasant
consequences, weaken the repellent force of legal punishment,
whilst they are unknown to natural punishment.
There is also another psychological condition which, undermining
even the force of natural punishment, almost entirely destroys the
power of social punishment; and that is improvidence. We see, in
fact, that even the most certain natural consequences are defied,
and lose most of their power to guard an improvident man from
anti-natural and dangerous actions. Now in regard to legal
punishment, even apart from passionate impulse, it is known that
criminals, occasional and other, are specially improvident, in
common with savages and children. This weakness is
conspicuous enough in the lower and less instructed classes, but
amongst criminals it is a genuine characteristic of psychological
infirmity.
Now, whilst a very slight force is sufficient to produce very
great and constant effects, when it acts in harmony with natural
tendency and environment, every process, on the other hand, which
is opposed to the natural tendencies of man, or which does not
follow them closely, encounters a resistance which triumphs in the
last resort.
Everyday life gives us many examples. The university student,
when he gambles, risks on a single card the last remnant of his
allowance, and prepares for himself a thousand privations. Miners
and workmen at dangerous trades refuse to take warning by the
sight of comrades whom they have seen dying or repeatedly attacked
by disease. M. Despine related that, during the cholera of 1866,
at Bilbao, there were some who set up an imitation of the disease
in order to obtain charitable relief, though in several cases
death ensued. M. Fayet, in an essay on the statistics of accused
persons in France, extending over twenty years, remarked that
specific and proportionately greater criminality was displayed by
notaries and bailiffs, who knew better than any one else the
punishments fixed by law. And in the statistics of capital
punishment at Ferrara, during nine centuries, I discovered the
significant fact that there is a succession of notaries executed
for forgery, frequently at very short intervals, in the same town.
This attests the truth of the observation made by Montesquieu and
Beccaria, as against the deterrent power of the death
penalty, for men grow accustomed to the sight; and this again is
confirmed by the fact mentioned by Mr. Roberts, a gaol chaplain,
and M. Berenger, a magistrate, that several condemned men had
previously been present at executions, and by another fact
mentioned by Despine and Angelucci, that in the same town, and
often in the same place, in which executions had been carried out,
murders are often committed on the same day.
A man does not change his identity; and no penal code, whether
mild or severe, can change his natural and invincible tendencies,
such as inclination to pleasure and persistent hope of impunity.
Let us also observe that, as Mill said, the permanent efficacy of
any measure in the spheres of politics, economy, and
administration, is always inversely proportional to its force and
suddenness. Now punishment does not stand the test even of this
sociological law, for in its essence it is only the primitive
reaction of force against force. It is true that, as Beccaria
said, the classical school has always aimed at rendering social
reaction against crime less violent; but that is not enough.
Henceforward, if we are to adapt ourselves to psychological and
sociological laws, the development of our defensive administration
must tend to render this social reaction less direct. If the
struggle for existence is always to remain the supreme law of
living creatures, yet it is not necessary that it should always be
developed in the violent forms of primitive humanity. On the
contrary, one of the results of social progress is to make the
struggle for existence less violent and less direct.
In the same way, the continuous struggle between society and
criminals, instead of being a physical and social force, directly
opposed to a physical individual force, should rather become an
indirect system of psychical forces. Penal law in society has the
same qualities as education in the family and pedagogy in schools.
All the three were once dominated by the idea of taming human
passions by force; the rod was supreme. In course of time it was
perceived that this produced unexpected results, such as violence
and hypocrisy, and then men thought fit to modify their
punishments. But in our own days schoolmasters see the advantage
of relying solely on the free play of tendencies and bio-
psychological laws. Similarly the defensive function of society,
as Romagnosi said, in place of being a physical and repressive
system, ought to be a moral and preventive system, based on the
natural laws of biology, psychology, and sociology.
Force is always a bad remedy for force. In the Middle Ages, when
punishments were brutal, crimes were equally savage; and society,
in demoralising rivalry with the atrocity of criminals, laboured
in a vicious circle. Now, in the lower social grades, the brutal
man, who often resorts to violence, is in his turn frequently the
victim of violence; so that, amongst criminals, a scar is somewhat
of a professional distinction.
To sum up, our doctrine as to the efficacy of punishments does not
consist, as some critics too sparing of their arguments have
maintained, in an absolute negation, but rather and especially in
objecting to the traditional prejudice that punishments are
the best and most effectual remedies of crime.
What we say is this. Punishment by itself, as a means of
repression, possesses a negative rather than a positive value; not
only because it has not the same influence on all anthropological
types of criminals, but also because its use is rather to preclude
the serious mischief which would result from impunity than to
convert, as some imagine that it can, an anti-social into a social
being. But impunity would lead to a demoralisation of the popular
conscience in regard to crimes and offences, to an increase of the
profound lack of foresight in criminals, and to the removal of the
present impediment to fresh crimes during the term of
incarceration.
It is the same with education, the modifying power of which is
commonly exaggerated. Education, though it has an enduring
influence on children, and is therefore more effectual than
punishment, is far more serviceable in eliminating anti-social
tendencies, whereof we all possess the germs, than in any supposed
creation of social tendencies and forces which were not present
from birth.
Thus, whilst the consequences of impunity and lack of education
are serious and mischievous, still this does not prove conversely
that punishment and education have in reality so positive an
influence as is commonly attributed to them.
It is precisely on the ground of this negative, yet real efficacy
of punishments, especially whilst they are being carried out,
that, whilst we appreciate the mitigation of punitive discipline
which has been achieved by the classical school, we
believe, on the other hand, that their abbreviation of the term of
punishments is altogether mistaken and dangerous. We admit that
punishment ought not to be an arbitrary and inhuman torture, and
for this reason we have no sympathy with the system of solitary
confinement, now so much in fashion with the classical jurists and
prison authorities, precisely because it is inhuman, as well as
unwise and needlessly expensive.
It is a psychological absurdity and a social danger, which
nevertheless underlies the new Italian penal code, that punishment
ought to consist more and more in a short isolation of the
prisoner. For, setting aside the well-known results of short
punishments, such as corruption and recidivism, it is evident that
in this way punishment is deprived of its main element of negative
efficiency against crime, as well as of its effect in preventing
crime during the incarceration of the criminal.
II.
Since punishments, instead of being the simple panacea of crime
which popular opinion, encouraged by the opinions of classical
writers on crime and of legislators, imagine them, are very
limited in their deterrent influence, it is natural that the
criminal sociologist should look for other means of social defence
in the actual study of crimes and of their natural origin.
We are taught by the everyday experience of the family, the
school, associations of men and women, and the history of social
life, that in order to lessen the danger of outbreaks of passion
it is more useful to take them in their origin, and in flank, than
to meet them when they have gathered force.
Bentham relates that in England the delays caused by hard-drinking
couriers, who used to be heavily fined without any good result,
were obviated by combining passenger traffic with the postal
service. Employers of labour secure industry and the most
productive work far more easily by offering a share of the
realised profits than by a system of fines. In the German
universities, academic jealousies and intolerance have been in
great measure overcome by paying the professors in proportion to
the number of their pupils, so that the Faculties find it to their
interest to engage and encourage the best professors, in order to
attract as many students as possible. Thus the activity and zeal
of professors, magistrates, and officials would be stimulated if
their remuneration depended not only on the automatic test of
seniority, but also on the progress displayed by publications,
sentences not reversed, settlements not cancelled, and the like.
It is better to regulate the disturbing restlessness of children
by timely diversions rather than by attempting to repress them in
a manner injurious to their physical and moral health. So in
lunatic asylums and prisons, work is a better means of order and
discipline than chains and castigation. In brief, we obtain more
from men by consulting their self-respect and interests than by
threats and restraint
If the counteraction of punishment must inevitably be opposed to
criminal activity, still it is more conducive to social order to
prevent or diminish this activity by means of an indirect and more
effective force.
In the economic sphere, it has been observed that when a staple
product fails, recourse is had to less esteemed substitutes, in
order to supply the natural wants of mankind. So in the criminal
sphere, as we are convinced by experience that punishments are
almost devoid of deterrent effect, we must have recourse to the
best available substitutes for the purpose of social defence.
These methods of indirect defence I have called penal
substitutes. But whereas the food substitutes are as a rule only
secondary products, brought into temporary use, penal substitutes
should become the main instruments of the function of social
defence, for which punishments will come to be secondary means,
albeit permanent. For in this connection we must not forget the
law of criminal saturation, which in every social environment
makes a minimum of crime inevitable, on account of the natural
factors inseparable from individual and social imperfection.
Punishments in one form or another will always be, for this
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