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THE ADJUSTMENT OF PENALTIES.
MARCUS A. KAVANAGH,
OF ILLINOIS. Imagine, if you can, an army of 136,700 women and men marching under their divisional banners through the streets of this or any city, clothed in uniform, marshaled by officers headed in line by 14,000 savage-hearted men and women who have taken the lives of their fellows. Next to these, first shall march 5000 robbers and 18,000 burglars each à potential murderer. Then in order, tramp 30,000 furtive-eyed thieves; after these 9000 unclean wretches who have committed irreparable crimes against the wives and daughters of other men, and thronging behind them come at last the many thousands of other miscreants who have unjustly inflicted suffering and loss upon their fellow citizens. If your imagination thus serves, it has but grouped and visualized the last United States census reports upon the subject we are considering. Suppose also, that while the shrinking spectators stand watching, this ghastly army breaks ranks, scatter to cover, then no doubt your imagination will pause from other efforts to picture the panic and dismay of the beholder. Well, as a matter of fact, that army has broken ranks. The computation dates from 1910; the prisoners of that year have nearly all served their terms and one third of them after a career of danger and loss to the public, have served other terms in addition. Their ranks have been vastly recruited. The mighty army continues to increase its war against society, is more persistent, more baleful than ever before in the history of any country. Their cost in mere money to the nation is enormous. It is a pretty safe conjecture that today and all days of this year, 150,000 persons either convicted of, or charged with crime, wait behind steel bars. It is also true that the number increases beyond all reason in comparison with the ratio of increase in our popula
tion. These prisoners cost the tax-payers of the country $54,750,000 a year for their mere food and keeping. They cost thrice that amount to watch, pursue and convict them before they came into prison. They have cost almost as much as the second sum in the waste and breakage of property they have wantonly occasioned. The misery, agony, terror and physical suffering that band has created among innocent people is incalculable. The situation presents a more forbidding phase still. Not only is the number of crimes and of criminals steadily increasing, but the number of recidivists is accumulating in even greater proportion. Nothing in the situation could portend worse than this fact. It demonstrates that our system has failed to reform, and that the law's penalties fail to deter—in other words, that our laws are not fulfilling their office-protecting the law-abiding. Judge Wadhams is reported as saying that one third of the inmates of our prisons are repeaters. It must be remembered that the more skillful of our criminals are not caught. That only the duller minded as a usual thing, are convicted. A study of the mentality of prisoners affords no real clew as to the average intelligence of the criminal.
During the past few years I have visited many prisons where I talked personally with wardens, guards, chaplains and convicted. In preparation for the honor you do me today, I addressed a questionnaire to 65 heads of the 65 great prisons of the country and I am of the opinion that the statement of Judge Wadhams is within the fact rather than over it. There are few penal institutions in which it is possible to get the correct records of prisoners. So many scattered small prisons keep no record at all. Recently the statistical clearing house at Fort Leavenworth has recognized the urgent need for this important information, but to this hour there is no way to ascertain the real facts. For example, from one great prison of the country the official report shows one third of the inmates to be repeaters, but the chaplain of the prison confided to me his private memoranda which disclosed that more than one half had been convicted before. The police in Chicago say, and I make no doubt these in other great cities claim as well, that from 85 to 90 per cent of the more serious predatory crimes are committed by men who had before suffered sentences short or long, mostly short, in some prison.
Twenty-one thousand one hundred and forty-two persons last year were brought before the identification bureau in Chicago charged with all sorts of serious or petty offenses. Of these 10,246 were identified as having formerly been under sentence. It is claimed by the officers in Chicago, that because of no sufficient system of co-operation throughout the country, many repeaters escape identification. In Auburn State Prison where a capable, scientific consideration is given to the matter of identification, out of a total population of 1292, it is found that 651 are first timers and 541 are second timers. In the United States penitentiary at Atlanta, out of 1898 prisoners, 733 have been convicted before. Of these last, 186 had two previous convictions, 70 three previous convictions, 44 four previous convictions, 19 five previous convictions, 10 six previous convictions, 12 seven previous convictions, 5 nine previous convictions, 2 ten previous convictions, 1 twelve previous convictions, 1 thirteen previous convictions and 2 sixteen previous convictions.
I think it only fair to say that from a study of the answers to my questions, these two prisons nearly mirror the actual conditions in most American penal institutions. In some southern penitentiaries where the lot of the convict is not exactly one of pampered ease, the number of repeaters runs as low as 8 per cent.
It must be kept in mind that the criminal with whom society must most seriously reckon, is not the mere violator of an ordinance or of some minor law, but the predatory outlaw. So far as I can find, no classification has been made by any criminologist of this sort of offender, and no special study seems to be directed upon him. Nevertheless, while in a class by himself, he remains the keystone of the entire black arch ; upon his known fate largely depends the public fear of the law. Disguise it how one will, respect for the law among countless thousands who have never committed crime and who never will commit crime, results from their fear of the law-fear of the physical suffering from punishment, more often fear of the disgrace of punishment. Not that the minor offender is to be treated lightly; enforce all the little laws and the big laws will pretty much enforce themselves.
Statistics are often matters of temperament. Usually the penalogist can show you facts to prove what he wishes most to believe. However, two facts that can not be hidden nor mitigated,
stand out in alarming distinctness: Predatory crimes are increasing beyond all reasonable proportions, and in greater proportion is increasing the number of men who have been convicted more than once. I shall not trouble you with the figures upon the measure of crime, but will refer those who desire substantiation to Mr. Fosdicks' recent book upon American Police System. The comparisons therein set forth between the prevalence of crime in this country and in other lands of common racial origin, together with the general situation here, demonstrate that if we are not a lawless people, then there is something radically wrong in our method of dealing with public offenders. But I contend that we are not as a nation, a lawless people. I testify to that which most of you will corroborate: One will be cheated five times in the shops of London, Berlin or Paris, to once in the stores of New York, Chicago, Cincinnati or other American cities. There is no more honest people in the world than in the great American people. It follows necessarily there is something. or several things radically wrong with the adjustments and administration of the criminal law. The great American civil disease, Lack of Respect for the Law cannot but arise from a want of fear of the law.
A lack of fear of the criminal law can not exist if the law be armed with properly adjusted penalties and these penalties are enforced. Severity of penalties will not take the place of fitly measured penalties, nor will any penalties deter much from crime unless they follow swiftly and certainly upon the offense. To execute a man no matter how atrocious his offense, three years after the act, as is to happen shortly in this city of Cincinnati, is to bring only sympathy to the offender and censorious contempt for the law that kills him. The public only vaguely recalls the outrage of his offense, whilst it distinctly realizes the present suffering of the offender. The situation demands radical treatment if ever situation did. What can we do? What remedies are being proposed ?
I think the criminologists dealing with the matter can be, roughly speaking, divided into two great classes—the sentimental class and the practical class. I use the word “sentimental” in no disparaging sense, and the word "practical ” with no purpose of approval, merely employing these two terms for lack of better descriptive phrases. M. Salielles indeed thus characterizes the purpose of his own school: “A purely humanitarian reaction prompted by a sense of popular and sentimental justice.”
The first class regards the reform and good of the criminal as the first object of the criminal law, arguing that with the criminal reformed, society is quickest and best protected. The second maintain that the chief purpose of the criminal law is to protect society with only secondary consideration for the consequences to the offender. Starting from a narrow divergence, the pathways of the two sorts of criminologists rapidly and widely separate in their results. The sentimentalists exercise largest control in France, Italy and in the United States. The practicalists rule notably in Germany, in Great Britain and in Canada. By their fruits shall we know them. The fundamental concept of justice in the several nations differ little. The ten commandments were engraved on the heart of the first cave man and will govern his last descendant. The capital differences are found in the theories concerning the adjustment of penalties.
To the north of us lies a country which speaks our language, has common religions, common traditions and like political institutions. It is only divided from us by an imaginary line. The situation in Canada and in Ohio should not differ in degree. Ohio has not half the population of all British America, but Ohio has twice the number of convicts and four times the number of its reported crimes. The great divergence in our system of criminal law and the Canadian system may be discovered in the adjustment of the several penalties.
In preparing to deal with this situation, the sentimentalist who through this generation has been in almost complete control in the United States, proposes a farther injection of sentiment. He still designs to above all, concern himself with the mental and moral condition of the accused. The practicalist insists that the first concern shall be to conserve the rights of the law-abiding citizen. For example, a lad convicted of several robberies is sentenced in Chicago for a stay at St. Charles School instead of being sent to the Juvenile Prison. The prosecuting attorney warns the court that the lad will jump the school fence within two weeks. The kind judge sentimentalizing over the power of kindness to the young offender, disagrees. The prosecutor was