The Causes of Criminality in Youth.—The three causes of criminal offences are: (a) inherited predisposition; (b) bad educational influences; (c) poverty. (The climatic and physiological causes of criminality are of little importance, and are, essentially, social causes.)
(a) According to the theory of the “born criminal,”[6] most youthful criminals are born criminals. The view is correct[218] to this extent only, in so far as a certain proportion—by no means a large one—of youthful criminals are born criminals; but many youthful criminals, although they have come into the world physically, mentally and morally degenerate, are not for this reason necessarily to be regarded as born criminals. To-day more degenerate individuals are born than formerly. It is more probable that the children of persons suffering from syphilis, tuberculosis, and alcoholism, and the children of prostitutes and criminals, will become criminals, than the children of sound individuals. We find, in fact, that a notably large proportion of all criminals are the offspring of persons of the former classes.
(b and c) The children of the proletariat tend to be much rougher, and are much more inclined to become criminals than the children of the well-to-do. Among young proletarians, we find more criminals than among adults. The towns are the true breeding-grounds of youthful criminals. To-day vagrant children in the streets are as constant a feature of town life as the street-lamps. The conditions of proletarian life make the proper upbringing of children impossible at the best of times. All the more is it impossible when the conditions are bad, as when crime, prostitution, and alcoholism prevail in the family circle. The principal cause of youthful criminality is to be found in the very character of proletarian family life, which makes education impossible, and often forces the child into a career of crime. It is well known that a considerable proportion of proletarian children receive no schooling at all—that is, they grow up unable to read and write, and a large number of criminals and prostitutes are made up of such illiterates. A notable proportion of youthful criminals are recruited from the class of wage-earning children, and these latter are almost all proletarians, and most of them have been forced to adopt wage-labour in very early youth. A foul dwelling-place contaminates the mind as well as the body; an enormous preponderance of proletarian children live in such contaminating surroundings. A principal cause of youthful criminality is to be found in the direct influence of poverty, i.e. poverty operating otherwise than through the education and environment. However well educated a child[219] may have been, it must steal when starving and freezing. Poverty forces children to adopt a course of action which may enable them to satisfy their immediate and most pressing needs. About half of the girls who go wrong become prostitutes; about half of the boys in similar case become thieves.
The study of the child-psyche throws light upon the age at which children are especially liable to commit punishable offences, and upon the character of these. The character of the punishable offences committed by children is a natural consequence of the child-nature, whose especial characteristics are impulsiveness and acquisitiveness. It is chiefly on this account that among the punishable offences committed by children, theft is the most frequent, and next to this comes bodily injury. Punishable offences requiring strength, adroitness, or deliberation can hardly be undertaken by children. Sexual offences are committed by those children only in whom the sexual life is already awakening. Grievous bodily harm is effected only by those whose bodily strength is fully developed. Complicated criminal offences can be undertaken by children only when they possess special experience and training. Younger children commit fewer punishable offences than older ones, and different offences, their capacity being less, and their opportunities more limited. The suggestive influence of the adult criminal is very great; he exploits the youthful criminal, and by threats and chastisement forces him into criminal courses. During the nineteenth century, the number of criminals, of recidivists, of punishable offences, and the gravity of these latter, has increased to a greater extent than the population. The number of offences against public order, and of crimes against the person, has indeed diminished, but the number of crimes against property, and of offences against morality, has disproportionately increased. The number of the most serious crimes is smaller, but the number of relapses into crime has greatly increased.
During the nineteenth century, the number of juvenile criminals has also increased. The glitter of the industrial development of the nineteenth century has to be paid for in large part by the gigantic increase in juvenile criminality. In all the civilised countries of Europe, with the exception of[220] England, there has been an extraordinary increase in the number of youthful criminals, and in the number of punishable offences committed by them, this increase being greater than the increase in the number of criminals and of criminal offences in general. In the case of juvenile criminals, there has also been an increase in the number of habitual offenders, as well as in the gravity of the punishable offences. Perhaps the most important difference between the older criminality and the newer, is that to-day the juvenile criminal and the habitual offender are more in evidence. Unquestionably these two phenomena are closely associated, for the great majority of professional criminals are persons whose first criminal offence was committed during childhood or youth. At the present day, in all the civilised countries of Europe, about 25 per cent. of all punishable offences are committed by young persons.
The following are some of the causes of the increase in juvenile criminality. The character of many of the offences customary in former days—for instance, robbery in the streets and highways by footpads and highwaymen—was such as to render it impossible for children to undertake them. Great towns, in whose streets and suburbs children could wander about, and in which it is comparatively easy for them to commit punishable offences, did not exist. Moreover, children begin to work for a living at an earlier age than in former times. The application of draconian laws, under which even little children suffered corporal and capital punishment, exercised a deterrent influence. Since the end of the eighteenth century punishments have become much milder. A large proportion of criminal offences are to-day more lucrative, easier to carry out, and less risky than in former times. Youthful criminality is probably far more extensive than the official records show, for these latter take no account of petty offences. Many punishable offences never become known outside the limits of the family. In view of the offenders’ youth, reports are often suppressed.
The Classical Criminal Law.—It is characteristic of the classical criminal law that criminal offences committed by children were either left unpunished, or, if punished, were punished[221] less severely than the offences of adults. In the classical criminal law several age-classes were distinguished among juvenile criminals. (a) Children too young to understand that an offence is punishable, and for this reason liable neither to prosecution nor to punishment. In existing legislative systems, the age at which criminal responsibility is supposed to begin varies greatly; it may be as low as seven, and as high as fifteen years. (b) The second class consists of those children of an age at which criminal responsibility is supposed to have begun. If such a child commits a punishable offence, it is examined as to whether it possesses the necessary understanding of the punishable nature of the offence. If it is considered not to possess this understanding, no punishment is inflicted. The punishment is, in any case, less severe than that which would be inflicted upon an adult. To this class belong children at ages from seven to eighteen years. (c) The third age-class consists of offenders over eighteen years of age, who are regarded as necessarily possessed of an understanding of the punishable character of their offence, but in whom also the punishment is less severe than it would be if they were of full age.
Gradual Transformation of the Classical Criminal Law.—In the nineteenth century the provisions of the classical criminal law no longer meet the case of juvenile criminality. Their inefficiency is demonstrated by the enormous proportion of recidivists among juvenile offenders. The number of recidivists continually increases, and criminality tends more and more to be the work of habitual offenders. Indeed, the criminal, in most cases, continues to repeat the very offence for which he was first punished. This is especially true of offences against property. The oftener anyone has been punished, the greater is the probability that he will commit another offence, and the sooner is this likely to take place. In reality the frequency of recidivism is even greater than appears from the official statistics. These relate to those persons only who are regarded as recidivists by the existing laws. They take no account of how many individuals leave the country after their first conviction for a criminal offence.
An examination of these facts, and the study of the child-mind,[222] have led to the conclusion that criminality in youth is the main source of the general stream of criminality, and that we cannot depend upon our present methods of dealing with crime and criminals to dry up this source. Hence even the dogmatists are coming more and more to admit the failures of the classical criminal law, and to recommend that mere punitive methods should give place to the educative treatment of criminal offenders, punishment being used, if at all, only as an educative influence. Even in those countries which lag behind the rest in development, this conception begins to influence legislation. This conviction that youthful offenders require not punishment, but education, was acquired by mankind many decades before it was generally realised that it is equally true of adult criminals—that they should not be punished, but improved, or, if unimprovable, rendered harmless. It is understood that those punishments only can be justified which exercise a lasting educative influence, by removing the child from its former environment into a better and healthier one. It is recognised that the difference between punishment and education is not absolute, but relative merely, inasmuch as education cannot dispense entirely with punitive methods, and punishment, properly utilised, exercises an educative influence. It is also now understood that by the proper legal treatment of youthful criminal offenders, many thousands of children can be saved every year from the permanent adoption of a career of crime, and their working powers thus preserved for the community. This was seen first of all, where it more especially applies, in the case of manufacturing towns. For the reformation of criminal and neglected youth by educational methods, the first steps were taken, and taken most effectively, by the country in which the modern manufacturing system first made its appearance—England, to wit. At the present day it is the great manufacturing countries, England, Belgium, France, and the United States of America, in which most is done in this regard.
Special Legislation Dealing with Youthful Criminals.—It is to that portion of the newer criminal law which concerns youthful criminals that the dogmatists object most strongly. They complain that it endangers very seriously personal liberty[223] and parental authority. There are many who argue to-day against coercive reformatory education, on the ground that personal freedom and parental authority should be inviolable. We even find some who attack modern ideas from the standpoint of various legal theories. Such persons tell us that coercive reformatory education interferes more than punishment with the child’s individual liberty, and that it absolutely ignores parental authority. The criminal authorities have absolutely no right, in their view, to supervise a child’s education, but merely to punish it or to set it at liberty. But this portion of modern criminal jurisprudence does not aim merely at the suppression of juvenile criminality. It is likewise an experimental laboratory, as it were, for the testing of new institutions, the success or failure of which is eagerly awaited by criminal jurists. If any institution thus tested proves successful, its application is immediately extended to other portions of the criminal law. In the United States of America, for example, the method which has been found successful in the case of juvenile offenders is now being applied in the case also of young adult criminals.
Proposals Bearing on the Question of Criminal Responsibility at Different Ages.—(a) A radical proposal for reform is that the distinction between juvenile and adult criminals should be abolished, and that, instead, criminals should be classified simply as educable or non-educable. This proposal is impracticable. In consequence of the application of the principles of individualisation and classification, the distinctions between the various age-classes of criminals become, indeed, of less and less importance. There may even be a little truth in the assertion that in a large country, owing to racial and climatic differences, no uniform classification of offenders according to ages can be adopted. And yet the definition of age-limits in the case of criminal offenders is indispensable. In a few cases such distinction may render the appropriate treatment of offenders more difficult, but in the great majority of instances they facilitate the work of judges and magistrates, and afford a means of individualisation.
(b) Liability to punishment is almost universally regarded as beginning, at the earliest, at the age of fourteen. This is[224] the period of the commencement of the puberal development, of the cessation of school attendance, when the child passes from the life of the family and the school to a life in the open, and becomes competent to work for a living.
(c) Many writers demand that the period of nonage, as far as criminal responsibility is concerned, should be extended. They do so on these grounds. The physical development of the individual is not completed till the age of twenty-three or thereabouts. It is inconsistent that one who is still a minor from the point of view of civil law should be regarded as of full age from the point of view of criminal law. Civil law is an affair merely for the owning and well-to-do classes; criminal law arises mainly in consequence of poverty. Hence we may say that in general civil law is created for the former class, and criminal law for the latter. There is certainly at any rate an appearance of class-justice in the assertion that those belonging to the poorer classes at eighteen are mature enough to be sent to jail, whilst those belonging to the well-to-do classes are incompetent to make a binding legal engagement to pay half-a-sovereign until they are twenty-one or twenty-four years of age. But the proposal is impracticable. Its adoption would undoubtedly involve grave dangers to public order, since the age-class of persons from eighteen to twenty-one is characterised by a high and a serious criminality-rate. The result of educative measures in the case of young criminals of such an age is not a very great one, for the formation of the character is by this time far advanced. To extend the age for a coercive reformatory education to include the last years of civil minority would be devoid of any justification upon accepted legal principles. There is no reason why the period of criminal nonage should coincide with the civil. In the first place, a much higher degree of intellectual capacity is requisite to the understanding of a transaction in civil law than to the understanding of the punishable character of an offence. In the second place, a punishable offence is also an offence against public order, but matters of civil law usually concern individuals only. In the third place, as regards the capacity also for infringements of the civil law, narrower limits are imposed than in the case of the capacity to enter into a bargain.
[225]
The Defects of our Present Penal Methods.—The punishments imposed by our present penal system are quite unmeaning. Not only do they exercise no educative influence, but they even hinder education. In the case of children they are not deterrent, first, because children act on impulse, and, secondly, because they have no accurate conception of the nature of these punishments. To many children imprisonment seems the same sort of thing as being “kept in” at school, and they quite fail to recognise its seriousness. Punishment by fine is supposed to make the offender suffer in proportion to the suffering he has inflicted by his offence. But how can the judge or magistrate, above all where children are concerned, accurately estimate the fine necessary to achieve this result? The difficulties of rightly apportioning the punishment are equally formidable in the matter of imprisonment as in the matter of fine.
(a) In the punishment of juvenile offenders, in modern times, the fine is really altogether inapplicable. Ninety per cent. of juvenile offenders are altogether without means. What does a fine matter to one for whom it is paid by another? Young people, as a rule, do not yet understand the value of money. If the offender is a person of property, then he has no occasion to dread a fine; or even if the fine were proportionate to his means, the juvenile offender would not understand its significance until after he had attained his majority. But we cannot depend upon the efficacy of a punishment which does not become effective as punishment until after the lapse of years. If the juvenile offender has to pay the fine out of his wages, he loses all desire for work. The majority of youthful offenders belong to the poorer classes, and are not in a position to pay the fine themselves. The parents will give their child a lecture if they have to pay the fine, but this will by no means attain the object of the punishment. Moreover, if the relatives pay the fine, they are unjustly punished, and may revenge themselves on the child.
(b) Punishment by imprisonment costs the State millions of money every year, and yet does no good. It is not possible, everywhere and always, to separate the young prisoners[226] from the adults, although it is absolutely essential that this should be done. A society, such as that of the prison, in which the worst are the most respected, and in which the innocent are despised and corrupted, is not suitable for young persons. If the juvenile offender is kept in isolation, his mental health will suffer; moreover, his loneliness impels him to seek the society of the other prisoners, and the greatest possible care will not succeed in preventing such association. It is maintained by some that imprisonment exercises a deterrent influence upon children, and that a coercive reformatory education does not. But the reverse of this is true. Not even the longest term of imprisonment which can be inflicted for juvenile crime will be found to exercise a deterrent influence; and it is the custom of the courts, in the case of juvenile offenders, to inflict, not the maximum, but the minimum sentence permissible by the law. The child is not afraid of the prison, because it is better treated there than outside; in prison it receives shelter, food, clothing, and warmth without having to pay anything, without having to work hard, and without being ill-treated. But the child is afraid of a coercive reformatory education: in prison the child is apathetic, its life being meaningless and without aim; but the working discipline associated with a coercive reformatory education is regarded by the child as a much more serious matter, being new and strange, needing continuous attention, constant diligence, and hard work. For many proletarian parents, to commit their child to prison is an alleviation; the parents then have one trouble the less, and the family income goes a little farther. Imprisonment brands a child. When it has served its time, employment is often extremely hard to obtain, for most employers very naturally dread that such a child will commit another criminal offence while in their employ. The child, finding it impossible to earn an honest living, is forced into the paths of habitual crime. Young people, much more readily than adults, accustom themselves to new conditions of life. In view of this fact, there is great danger that the youthful offender will become altogether indifferent to imprisonment; that the punishment will induce a condition[227] of immunity to its effects. A child which has been once in prison is likely to become a recidivist, if only for the reason that it will now have lost the dread of prison which it had in the days before its first offence was committed. We learn from statistics that the majority of youthful offenders are sentenced to short terms of imprisonment. They regard these with the greatest indifference, and are not in the least afraid of them. Such short terms of imprisonment do not protect society; and the possibility of their exercising any educative influence is excluded by the fact that since the term of imprisonment is short, and the cost of transport considerable, the child will be confined in the nearest prison, instead of being sent to some special and suitable place of confinement. Many children are even pleased at being sent to prison, regarding their sentence as a desirable interlude in school work. This difficulty is not met by postponing the term of imprisonment to the holiday season. The child leaves prison to return to school. If it is despised by its schoolmates, it sinks lower; if it is regarded as a hero, the effect is no less corrupting.
Imprisonment for a child must take no other form than that of education under strict discipline. If a short term of imprisonment is ordered, solitary confinement is essential. If a child must be sent to prison, the use of the common prison is inadmissible, and a children’s wing in a general prison is hardly better; a special prison for children is essential, if only for the reason that, unless we have a comparatively large number of young persons assembled together, it is more difficult to arrange for the proper distribution of occupations (manual work of various kinds).
From these considerations we may draw the following conclusions: Society stands quietly by, waiting until juvenile criminals grow up and begin to commit serious offences. Our prisons are the true high schools of criminality. The present prison system is the most effective factor in the production of crime; to such an extent is this true, that if we discharge a juvenile offender with a caution, there is less likelihood that he will commit another criminal offence than if we had sent him to prison. The accuracy of these views is now more and[228] more widely recognised; and in the case of juvenile offenders, imprisonment, formerly the rule, is now quite exceptional.
The Question of the Capacity for Understanding the Punishable Character of Criminal Offences.—The notion of the capacity for understanding the punishable character of criminal offences is unworkable in practice. It considers the intellectual element only, whereas in children we have to distinguish between intellectual maturity and moral. Intellectual maturity is commonly attained earlier than moral, and intellectual maturity alone should not render the child liable to punishment. Often a child is mature enough to distinguish what is allowed from what is forbidden, but is not yet strong enough to refrain from the latter course. The most striking example of this is to be found in the case of young proletarians, in whom, in consequence of their premature contact with the manifold factors of life, the mental development is often premature to an astonishing degree, but this intellectual precocity stands contrasted with conspicuous moral immaturity. It is hard to determine what factors have to be taken into consideration in deciding whether a child has attained intellectual and moral maturity. It is essential to examine—(a) whether the child has an accurate conception of the nature of punishment; (b) whether it understands what legal principle is infringed or threatened by its act; (c) whether it possesses such a degree of moral maturity that, through possession of the conception alluded to in section (a), and of the understanding alluded to in section (b), it was competent to refrain from the criminal offence.
In the case of almost all punishable offences another solution of this problem is possible. The more serious the punishable offence, the earlier the age at which a child is competent to understand its character. But, in many cases, it is an obvious inference that a child which from absurd motives has committed so serious an offence cannot possibly possess the requisite moral maturity. Moreover, the three factors we have mentioned cannot be accurately defined. In maturity there are many degrees and stages, passing imperceptibly one into another, and exceedingly difficult to differentiate. The decision of this question will therefore be[229] the work of experts, who will have to keep the child under observation for months. It follows that a decision as to criminal responsibility based upon an understanding of the punishable nature of an offence is, of necessity, and in every case, uncertain and unequal.
To-day, in legal proceedings where juvenile offenders are concerned, remarkable incidents occur. For example, the judge or magistrate asks the child to repeat the ten commandments and the catechism. If the child can do this, it is supposed to possess the requisite understanding. It is left quite out of consideration that the child has probably learned the commandments by rote, without understanding them in the least. Or, again, the judge makes the child describe the act it has committed, and then asks, “Do you know that such acts are punishable?” But in the proceedings in court the child has been made well aware of the fact that it has committed a punishable offence, and yet it may not have known this at the time the offence was committed. In the case of the offences with which the enormous majority of juvenile offenders are charged, namely, theft, fraud, and bodily injury, a knowledge of the punishable character of these offences is apt habitually to be assumed by the courts. This assumption is justified, but it suffices to show the impracticability of the conception.
The School.—The proposal has been made that when petty offences are committed by children of school age, the school should deal with the matter; and that only when a more serious offence has been committed should the case go before the law-courts. In proportion to the seriousness of the case, the punishment should be apportioned by the class-master, by the head-master and class-master together, or by the united teaching faculty. The suggested punishments are—a reprimand, task-work, sitting on the punishment form, being kept in after school hours, corporal punishment, &c. Investigation by other authorities is not to be regarded as superfluous, but in minor cases it will suffice to leave the whole matter in the hands of the school authorities. The following reasons are given for this proposal. In the case of petty offences, the tedious and laborious intervention of[230] the criminal authority is quite uncalled for. It may even be said that we misuse and make light of the criminal authority, when we invoke the aid of this gigantic apparatus, and as a result of this the child is discharged with a hardly perceptible punishment. If the State undertakes to deal with all petty offences, it is left no time for the proper consideration of the graver and more important ones. The aim in view can be attained by less expensive and less elaborate means.
These considerations notwithstanding, this proposal can be approved only to this extent, that in the case of juvenile offences which do not render necessary a coercive reformatory education, it will suffice that the child should be punished by its parents or by the school authorities.
The Reprimand.—Some contend that it is in many cases sufficient for the court to administer a suitable reprimand. But, owing to the peculiarities of the child-psyche, the influence of the reprimand is extremely fugitive. A child so readily forgets. It has not as yet any accurate conception of honour, and completely fails to understand that it is dishonoured by the reprimand. As in the case of any other punishment, the reprimand can as a rule only be administered after the offence has been proved, and the offender sentenced; hence, there is so long an interval between the act and its punishment, that the reprimand becomes quite ineffective, and is in fact no more than an empty formality. Moreover, there are objections on principle against utilising the reprimand as a method of punishment, so that its use is possible only in exceptional cases.
Flogging.—Many persons consider that in the case of certain offences, especially such as betray the existence of a rough disposition, a flogging is the best punishment. But the fact that England, which holds the leadership in the movement for child-protection, continues to employ flogging as a punishment, and the fact that Denmark introduced flogging as a punishment only a few years ago (since then, however, abolished), prove nothing. For the reasons given in an earlier chapter, flogging must be regarded as an excessively noxious method of punishment, and must not even[231] be employed as a disciplinary measure in reformatory schools and prisons.
The Conditional Sentence.—The nature of the conditional sentence is that, conviction having been effected, the sentence is passed, but does not take effect, unless the offender commits another punishable offence; should he fail to do this, he is, by many legal codes, still classed as a non-punished person. The conditional sentence is distinguished from a conditional pardon by the fact that in the case of the latter the punishment is disallowed, not by the court, but in virtue of the right of pardon vested in the higher authority of the government. The conditional sentence is of dubious value in the case of juvenile offenders, because young persons very readily forget; and in the event of their committing a second offence, they now incur a double punishment. Considerations of jurisprudence compel us to regard the conditional pardon also as a measure of dubious value.
In the United States of America probation is employed. This is a postponement of the sentence—that is to say, not a conditional sentence, nor a conditional release from punishment, nor even a postponement of punishment. In this way it is hoped that condemnation and punishment of the child will be altogether avoided. The court, at its free discretion, can commit the child to a reformatory without having first passed sentence. If the child does not mend its ways, it is brought up for judgment, and sentence is passed. The system is an unmistakable improvement upon the unconditional sentence. But the conditional sentence can be imposed upon such terms that it is associated with a protective supervision, and that the conditionally-remitted punishment will be reimposed, not only in the event of the commission of a fresh criminal offence, but also in the event of general misconduct.
The European system of conditional remission of punishment consists in a conditional release of the prisoner after he has served a portion of his sentence. If he makes a good use of his freedom, the remainder of his punishment is entirely remitted, but if he misconducts himself he must return to prison and serve out his term. Release on parole in the United States of America is distinguished from this system[232] by the fact that in the former case, after its release, the child remains subject to educative supervision; and it is distinguished from probation by the fact that in the case of probation a portion of the punishment, or of the reformatory education, as the case may be, has already been undergone.
Probation and release on parole are preferable to the European system; for from this last, since it is not associated with any serious attempt at educative supervision, no particular good can be expected. It is eminently desirable that the criminal legislation of every civilised State should adopt these systems of probation and parole, with whatever modifications may be found necessary in individual countries; and the tendency of evolution is unmistakably in this direction. In the majority of the States of the American union, the probationary system is in force, and in many of these States it is applicable even in the case of adults. In most of those States in which it is in force, it is associated with the system of Children’s Courts; but in a few these Courts are as yet unknown.
The Indeterminate Sentence.—In Europe, in view of the sacred character of individual liberty, it is the general opinion that the law courts should have no power to sentence an offender to imprisonment for anything but a definitely fixed term. But this system is in direct contradiction with the object of the punishment. The criminal is to be regarded as an abnormal, diseased individual, whose punishment must last until he is cured. He must for the most part be treated as we treat one suffering from mental disorder, who is committed to an asylum for an indeterminate period. The work undertaken by the State in respect of the majority of criminals is to effect their physical and moral cure. It is therefore absurd on the face of the matter to specify beforehand a precise period within which the cure must be completed. It is quite impossible for the judge, when passing sentence, to determine how long it will take to attain the desired end. When and if that end is attained can be determined only by those to whom is entrusted the administration of the punishment—persons continuously, and for a long period, associated with the prisoner. The duration of the punishment must depend,[233] not upon the offender’s conduct at the time the offence was committed, but upon his conduct after he has been sentenced. When an offender is serving out a fixed sentence, the only thing that interests him is how much of the period he has got through, and how much still remains before him. But when the sentence is indeterminate, it will be his whole-hearted endeavour to conduct himself in such a way, to effect such an improvement, as to obtain his release.
At the present day, there is no country in which sentences are altogether indeterminate. Even in the United States of America, where the indeterminate sentence prevails, a maximum term is specified for the prisoner’s detention. The greater this maximum, the more powerful will be the effect of the indeterminate sentence. The younger the prisoner, the more powerful also will be the effect of the indeterminate sentence, for the younger the prisoner, the more has he to expect from life. In America the experience of the working of the indeterminate sentence has been so satisfactory, that there is a general desire that the specified maximum sentence should be completely abolished. But as yet the efforts in this direction have been unsuccessful.
In the case of juvenile offenders, the arguments in favour of the indeterminate sentence are even more powerful than in the case of adults. The aim of imprisonment is to exercise an educative influence upon the child, and it is impossible to determine beforehand how long a time will be required to complete the necessary education. The indispensable foundation of every sound penal system for juvenile criminals is the institution of the indeterminate sentence. We find, in fact, that in the United States of America the reformatory system is inseparably associated with the indeterminate sentence; and in many European countries, when a child is sent to a reformatory, no definite term is specified beforehand.
Should Punishment be Rendered more Severe.—The classical legal system is defective. But to many it appears that its present failures depend upon the excessive mitigation of punishment; such persons contend that we can expect a diminution of crime only if we render punishments more severe. Many even demand the reintroduction of corporal punishment.[234] More severe sentences are indispensable in the case of the habitual criminal; but in the case of occasional criminals and juvenile criminals, no good results are to be expected from any such measure.
The Coercive Reformatory Education of Youthful Criminals.—The coercive reformatory education of youthful criminals has in essentials the same character as the compulsory education enforced by the ordinary processes of the civil law. Its central idea is the following. The child which for one reason or another stands in need of a coercive reformatory education, whether that need is manifested by the commission of some punishable offence or in any other way, and whether the need arises in consequence of neglect on the part of the child’s parents or in consequence of that of some other person or persons, must receive the education it needs. The child that requires a coercive reformatory education because it has committed a punishable offence does not differ in any important respects from a child which has not committed any such offence, but is in a state of neglect. The latter child also should be subjected to a coercive reformatory education; on no account should we wait until it has committed a punishable offence, and has in this way manifested its neglected state in a manner that cannot be overlooked. Besides, neglected children and juvenile criminals belong to the same class of society, and in the case of both the need for a coercive reformatory education arises out of like conditions. Thus, the question of the coercive reformatory education of juvenile criminals is not one appertaining merely to the province of criminal law, but, in conjunction with the question of the coercive reformatory education of neglected children, it is also a matter of civil law and local administrative activity. The care of youthful criminals is, in the first place, a matter for the local authorities that are responsible for the care of neglected children—that is to say, for the Boards of Guardianship [see note to page 74], and for the Poor Law Boards. The education of juvenile criminals differs but little from the education of the children cared for by the Poor Law authorities; and thus the question arises whether the care of juvenile criminals necessitates the existence of ad hoc[235] boards to administer this special department of the criminal law.
Since the middle of the seventeenth century, it has been the tendency to send troublesome juveniles to institutions; and at the outset they were sent to poorhouses and workhouses to mingle with adult vagabonds and prostitutes. Not until towards the end of the eighteenth century did people begin to recognise that it was essential to separate heterogeneous elements. But even at the present day, in many countries, reformatories are so far from being worthy of their name that, like prisons, they are schools of corruption. Many reformatories have still the aspect and the organisation of barracks. In such places the children are subjected to a rigid discipline. They are managed very strictly, and yet the children are in some respects better off than free workers of the same age; they are compelled to be diligent, clean, and healthy. But their life is not truly living. The children receive instruction, but no real education. They work, but acquire no love for work. When they are discharged from the reformatory they are even less inclined to work than they were when they entered the institution; they are further corrupted, they renew outside the unwholesome friendships they have contracted within the walls, and commonly carry out, after they leave, the crimes they have learned and planned during their stay at the “reformatory.”
In real advances in reformatory methods, England and the United States of America have led the way. But in the case of the former country, true progress in this respect dates only from the latter half of the nineteenth century; and in the case of the latter country, only from the year 1870. In other countries, even to-day, sound ideas have found in this matter but little application. This slow progress probably depends upon the difficulty of getting rid of the influence of the older legal theories, and upon the difficulty of assimilating the idea that a reformatory must be something totally different from a prison.
Institutional Education versus Family Education.—Which is preferable, institutional education or family education? There is much to be said on both sides of this question. Unquestionably,[236] in the case of juvenile criminals and neglected children the advantages of family care are less conspicuous than they are in the case of abandoned children. The accumulation, under one roof, of children of the former categories involves the close approximation of numerous injurious germs, which would less readily develop if they were dispersed. Moreover, for such children it is even harder to find suitable foster-parents than it is for those who are simply abandoned. Few are willing to undertake the difficult task of bringing up such children, and fewer foster-parents still are in a position to give them a suitable upbringing. The strict handling they require is much easier to enforce in an institution or a colony than in an ordinary family. There is often good reason to be afraid that the juvenile criminal or neglected child, if boarded with a family, will corrupt the younger members of that family.
The problem must therefore be solved on the following lines: In every case there should be a thorough medical examination of the child, and a careful study of its educational acquirements and capacities, and upon the results of this examination should be based the decision whether this particular child can best be dealt with in an institution or in a family. In making our decision we should never lose sight of the principle that, except in the case of the really bad children, the advantages of a family education should as far as possible be given. Only in the case of children with obstinate and unconquerable criminal tendencies is continuous institutional care essential; for abnormal children, prolonged curative educational treatment is requisite, as far as possible, in institutions or colonies founded especially for this purpose. The educational institution should be a place in which the pupils undergo a thorough bodily and mental cleansing process. When this has been effected, as soon as we have a right to assume that the child could be received as an inmate by an ordinary family without endangering the other children, then the sooner the child is removed from the unnatural life of the institution to the natural life of the family, the better will be its chances for the future. A reformatory institution which is to attain its ends must have characteristics resembling[237] those of a modern foundling hospital. It must be a place at which those children who, for one reason or another, have to leave their foster-parents, can be received and cared for while another suitable home is being found for them; it must be the centre of supervision of the children placed in family care. It is true that at a reformatory a child is deprived of personal liberty and remains in the institution under compulsion, but the aim of the reformatory is very different from that of the prison. The reformatory should resemble, not a barrack, but a family—that is to say, the barrack system (collective system) must find no place in the reformatory. The institutional life must be as free as possible, and the child must be treated as a member of a family.
Individual treatment and classification of the children are of great importance. Special institutions are requisite for older children and younger children, for those who are more and those who are less corrupt, for those who need mild and for those who need strict treatment. In accordance with this classification, the children must be distributed in the various separate institutions. Unimprovable children should not be received at all, for not only can we do them no good, but their presence is harmful to the other children. It is also necessary that there should be special institutions for observation purposes, to enable us to decide which of the other institutions is best adapted for the treatment of individual cases. When they first enter the observational institution, children should be isolated for a while, until they can be sent to an appropriate section. In former times, grave mistakes were made in this matter of individualisation. Routine treatment and equality of punishment for all similar offences were justified with reference to the principle of equality before the law. Even to-day, children still at times are thrust into contact with the most dangerous elements, and even with the refuse of human society, although this happens much less often in reformatory institutions than in police cells, local prisons, or workhouses. But in general, and especially in England, France, and the United States of America, great stress is now laid upon proper individualisation. In England, above all, do we find the attempt made to secure that[238] all the younger children should be sent to industrial schools, and all the older children to reformatory institutions.
The aim of the reformatory is to improve the child. This is equivalent to an endeavour to produce in the child an independent spirit, and a capacity to provide for itself in a free life. This can be done only by leaving the child a certain amount of freedom, by cultivating its self-respect, and by doing all in our power to put it upon its mettle. He only will be able to make his living who possesses some definite capacity and is willing to work. For this reason, the institution must take every care, not merely to accustom the child to work in general, but also to render it competent in some particular handicraft. Hence the child’s occupation in the institution must not be either useless or depressing in character, nor must it be of such a kind as only an adult can do properly; it must be one suited to the powers and capacities of the child. In the older institutions, which were badly conducted, the pupils were engaged in useless and mind-destroying occupations. Owing to the fact that these institutions were inadequately supplied with funds, the work done was chosen, not because it was of any value to the inmates, but simply because it could provide a contribution to the expenses of maintenance. Unfortunately, even at the present day, on the ground that it is within the rights of the State that a part of the expenditure upon the inmates should be provided by the utilisation of their labour-power, far too much stress is laid upon attempts to make such institutions “self-supporting.”
The school instruction in reformatories should, in general, resemble that which is given by the State to normal children outside. The main points are, to provide a suitable elementary education, and to devote a great deal of attention to the care of the body. The most difficult class to deal with in reformatories is that of the habitual vagrants.
Testing Reform.—How can the improvement we hope to effect in the reformatory best be tested, and how can we best prepare for the transition into a free life? In view of the fact that these problems have been most completely solved in the United States of America, it will suffice here to describe[239] the systems in vogue in that country. The indispensable preliminary to a successful reformatory education is the indeterminate sentence. The child will not leave the reformatory (presuming that the stipulated maximum term has not been attained) to assume the full responsibilities of freedom, until it has satisfactorily responded to the test of a probationary freedom. When it first enters the reformatory the child is apathetic. But before long it becomes aware of the significance of the indeterminate sentence; it perceives that it will not obtain its discharge until it has improved; and this induces a condition of nervous, yet salutary, tension and disquiet. The indeterminate sentence thus exercises upon the child a powerful influence, laying its fate to some extent in its own hands, making hope in place of fear the most effective element of its thought, and awakening the desire to effect improvement by means of its own efforts.
We must not overlook the possibility that those who may secure their discharge before they have served the maximum term of their sentence may not necessarily be those who have truly and completely reformed, but those who possess the greatest power of adaptation to the conditions necessary to secure their release.
A system which in various forms constitutes an almost universal feature in the conduct of American reformatories is known as the “mark system,” or “merit system.” The nature of this system is that every inmate is able, by earning a certain number of good marks, allotted on account of general good behaviour, and of progress in the school and the workshop respectively, to earn his release upon probation. The numerical formalism of this system is counteracted by an individual consideration and treatment of the pupils.
In the reformatory, we may endeavour to effect an improvement, and may hope that we have done so; but it is impossible to be certain that this end has been attained. While the child remains in the institution, no one can tell if it has acquired the power of overcoming the difficulties of the life of freedom. It is the period immediately following the discharge from the reformatory which is the most dangerous to the child. It is upon this period, above all, that it depends[240] whether the child will be successful in gaining a proper place in society. For this reason, it is of fundamental importance to find work for all those who are discharged from a reformatory; indeed, they should only leave the reformatory to enter an assured position. Every care must be taken, in seeking employment for those about to be discharged, that we are not increasing the general difficulty in obtaining work by overstocking the labour market. In the reformatories of the United States, the difficulties of the transition period are met by releasing the inmates on probation only, for a time during which they are not only supported, but carefully supervised. In the criminal law of European countries, the period of punishment is at an end when the specified term of sentence has expired. No such determinate sentence exists in the case of American reformatories, for the maximum term of sentence usually extends far beyond the end of the period of probationary release. What is requisite is, that the definitive discharge from supervision and control should only take place when the conduct during the term of probationary release has been satisfactory, and when the duties imposed have been faithfully performed. The child released on probation must behave well, work diligently, and punctually and at regular intervals report itself at the reformatory. Until the end of the probationary period, it remains under the supervision and care of the institution; the conditional release may at any time be revoked; and the final discharge is not effected until the child has given satisfactory proof of its fitness for a free life. The child released on probation generally behaves very well, for it fully understands that any misconduct would entail serious consequences, that it would lose in a moment all that it has hitherto gained, that it would have to return to the institution, and begin once more at the beginning the struggle to secure its freedom.
Some of the reformatory schools of America are governed as child republics, known as “Junior Republics.” In these the children exercise self-government after the example of the Great Republic itself, and the executive of the institution merely exercises a kind of supervision. The greatest possible weight is thus given to the educative influence of personal[241] responsibility. Above all, the trial and punishment of offences against the discipline of the reformatory, by courts constituted by the inmates, works exceedingly well, because the comrades know one another better than anyone else can. The reformatory system of the United States of America meets with very general approval. In Europe, indeed, it is said that the system is too expensive, and that the inmates are treated too well. The view we shall take upon this matter will depend upon our general opinion as to how a reformatory should be organised and carried on. In the United States of America, intercourse between man and man is free and unrestrained, and the standard of life is higher than in Europe. Only the improvable children are so well treated; the habitual offenders, on the contrary, are subjected to a draconian régime. It is true that in Europe the cost per child is less, but in view of the meagre results obtained on this side of the Atlantic, the saving is apparent merely.
The defects of the American system are the following. As soon as a new political party gains a majority, and a new government therefore comes into power, much of the official staff, including that of the reformatories, is changed. Hence, the greater part of the staff does not consist of persons who have devoted their life to the improvement of children, but is composed mainly of persons without proper professional training. But it is well known that the staff of our European reformatories also lacks proper professional training in respect of the hygiene and psychology of child life.
The Radical Solution of the Problem.—We cannot protest with too much energy against the idea that we can deal effectively with juvenile criminality by means of a few new paragraphs in our criminal codes, and of a few new societies with patronage to distribute. We must not regard neglected childhood and juvenile criminality as isolated phenomena, but must consider them in association with the economic, moral, and intellectual neglect of the proletariat, from which juvenile criminality springs. These proletarian conditions form the starting-point for our knowledge of neglect in childhood and of juvenile crime, and hence for our knowledge of the means we should adopt in dealing with these. The evils have to be[242] averted, not from youth only, but also from the proletariat. Political care, which is directed towards the saving, in the narrower sense, of neglected and criminal youth, is inadequate; what is required is a general scheme of social and political reconstruction whereby the true sources of juvenile criminality will be dried up.
The best policy of criminal reform is the social policy which will provide a sufficiency of the necessaries of life for every one willing to work for them, and which will put an end to the flagrant class contrasts of our time. Such a policy would involve the destruction of capitalism. I repeat that this does not involve any changes in our policy of child-protection in the narrower sense, but simply indicates the general lines on which alone advance can be obtained. The best means for the prevention of crime is not punishment, but removal of the causes of crime. Juvenile criminality will not completely disappear until its causes have been completely removed—that is to say, it will not disappear until capitalism no longer exists, and until there is no longer a proletariat.