SAFEGUARDING THE INDETERMINATE SENTENCE.

BY SAMUEL J. BARROWS.

Three important contributions to modern criminal law and criminal procedure have had their origin and application in the United States. One is the establishment of a system of probation, applicable both to adults and minors, the second is the organization of juvenile courts, and the third is the adoption of the indeterminate sentence. Juvenile courts have grown up within the last five years; probation has been in operation for some twenty-five years; the indeterminate sentence has been in operation in New York, the pioneer State in this reform, since 1877. It is not surprising that these innovations in the field of criminal law should have attracted the attention of European jurists. Probation, in the form of a suspended sentence and without the salutary provision of the probation officer, has long been in successful operation in France, Belgium, England, and to a small extent in Germany. The idea of the Juvenile Court was received with enthusiasm at the International Prison Congress and commended to the attention of all the nations represented. The indeterminate sentence has not been adopted by any European nation, but has been the subject of repeated discussion at the Congress referred to, and also in the International Union for Criminal Law. It has found prominent advocates in Van Hamel, of Holland; Guillaume, of Switzerland; Saleilles, of France, and De Sanctis, of Italy. Within the last year two doctors of law from the University of Berlin, and Dr. Freudenthal, professor of criminal law in the University of Frankfort, have come to the United States especially to study these new aspects of American criminal law. Dr. Freudenthal has given especial attention to the principle and implications of the indeterminate sentence.

The arguments for the indeterminate sentence which are influential in Europe are precisely those which are influential here. The best criminal code is an arbitrary instrument, and it is impossible to construct one on any principle so that the penalty can

be made to fit the crime; still more difficult is it to make the penalty fit the offender. No legislator can show why the theft of twenty-five dollars should be punishable with one year's imprisonment, and the theft of twenty-six dollars with five years' imprisonment. Nor is the difficulty removed by empowering the judge to use his discretion in imposing sentence within certain limits of minimum and maximum. A judge would find it hard to tell why he sentenced one boy five years for stealing a dollar and another boy one year for stealing $186; or another judge why he sent one boy to prison for a year, and another, a first offender, for sixteen years for the same offense. A study of codes on one hand and of sentences on another reveals an amazing amount of contradiction and confusion, not to say rank injustice, in the application of penalties.

For this inequality and injustice the indeterminate sentence furnishes the necessary relief. Instead of making the code-maker or the judge decide when a man shall come out of prison, it puts the main responsibility of deciding that question upon the prisoner himself. What the judge decides is that the prisoner has had a fair trial, and what the jury decides is that the prisoner is innocent or guilty. In the latter case the judge may put the offender on probation, or it may be shown that he must be removed from society until fitted to come back to it. What the State then does is to provide a new environment for the offender, an environment where he shall be made better instead of worse. It puts him under a whole range of reformative influences, moral, physical, and intellectual. The State then says to him: Before you can go back to society you must prove that it is safe for society to let you come out. Here you must fulfill certain conditions. Like a boy at school, you must pass through a certain number of grades and attain a certain number of marks before you can graduate. If you fulfill all these conditions as to work, education, and deportment, you may get out in a year and a half, or you may stay here ten years, which is the limit fixed by statute for the offense you have committed. Whether your detention shall be eighteen months or ten years depends most of all upon yourself. You are to this extent the master of your own fate. Here is a ladder upon which you can climb. You cannot go out till you have reached the top round, and then

SAFEGUARDING THE INDETERMINATE SENTENCE.

BY SAMUEL J. BARROWS.

Three important contributions to modern criminal law and criminal procedure have had their origin and application in the United States. One is the establishment of a system of probation applicable both to adults and minors, the second is the organization of juvenile courts, and the third is the adoption of the indeterminate sentence. Juvenile courts have grown up within the last five years; probation has been in operation for some twenty-five years; the indeterminate sentence has been in operation in New York, the pioneer State in this reform, since 1877. It is not surprising that these innovations in the field of criminal law should have attracted the attention of European jurists. Probation, in the form of a suspended sentence and without the salutary provision of the probation officer, has long been in successful operation in France, Belgium, England, and to a small extent in Germany. The idea of the Juvenile Court was received with enthusiasm at the International Prison Congress and commended to the attention of all the nations represented. The indeterminate sentence has not been adopted by any European nation, but has been the subject of repeated discussion at the Congress referred to, and also in the International Union for Criminal Law. It has found prominent advocates in Van Hamel, of Holland; Guillaume, of Switzerland; Saleilles, of France, and De Sanctis, of Italy. Within the last year two doctors of law from the University of Berlin, and Dr. Freudenthal, professor of criminal law in the University of Frankfort, have come to the United States especially to study these new aspects of American criminal law. Dr. Freudenthal has given especial attention to the principle and implications of the indeterminate sentence.

The arguments for the indeterminate sentence which are influential in Europe are precisely those which are influential here. The best criminal code is an arbitrary instrument, and it is impossible to construct one on any principle so that the penalty can

be made to fit the crime; still more difficult is it to make the penalty fit the offender. No legislator can show why the theft of twenty-five dollars should be punishable with one year's imprisonment, and the theft of twenty-six dollars with five years' imprisonment. Nor is the difficulty removed by empowering the judge to use his discretion in imposing sentence within certain limits of minimum and maximum. A judge would find it hard to tell why he sentenced one boy five years for stealing a dollar and another boy one year for stealing $186; or another judge why he sent one boy to prison for a year, and another, a first offender, for sixteen years for the same offense. A study of codes on one hand and of sentences on another reveals an amazing amount of contradiction and confusion, not to say rank injustice, in the application of penalties.

For this inequality and injustice the indeterminate sentence furnishes the necessary relief. Instead of making the code-maker or the judge decide when a man shall come out of prison, it puts the main responsibility of deciding that question upon the prisoner himself. What the judge decides is that the prisoner has had a fair trial, and what the jury decides is that the prisoner is innocent or guilty. In the latter case the judge may put the offender on probation, or it may be shown that he must be removed from society until fitted to come back to it. What the State then does is to provide a new environment for the offender, an environment where he shall be made better instead of worse. It puts him under a whole range of reformative influences, moral, physical, and intellectual. The State then says to him: Before you can go back to society you must prove that it is safe for society to let you come out. Here you must fulfill certain conditions. Like a boy at school, you must pass through a certain number of grades and attain a certain number of marks before you can graduate. If you fulfill all these conditions as to work, education, and deportment, you may get out in a year and a half, or you may stay here ten years, which is the limit fixed by statute for the offense you have committed. Whether your detention shall be eighteen months or ten years depends most of all upon yourself. You are to this extent the master of your own fate. Here is a ladder upon which you can climb. You cannot go out till you have reached the top round, and then

only conditionally. In other words, you must earn your parole in prison, and you must earn your absolute discharge when you have been released conditionally.

The indeterminate sentence is not, then, a passive punishment; it is something better; it is an active discipline; it is an oppor tunity for moral and intellectual enfranchisement which liberates the man from himself. It opens to him a new future. It means not relentless suffering for something that he has done, but relentless endeavor for something which he is to become. The truest proof of repentance is reformation. No reformation can be secured without suffering, the suffering of discipline; but the discipline which reforms is not the discipline which crushes.

It is evident, then, that the indeterminate sentence has no meaning unless it is connected with an active reformatory system. To send men to prison where there is no labor, no schools, no incentives to self-development, is merely a parody upon the true principle of the indeterminate sentence, which is a very different thing from a definite sentence shortened a certain number of months for good behavior. It is important to sound here a note of warning. Certain States have adopted what they call a parole system. Men are released conditionally after they have served a certain time. Their eligibility for parole does not depend upon what they have done in prison, but on what they have not done. They have observed a somewhat easy set of prison rules; they have given the keepers no trouble. Habitual criminals easily adjust themselves to such rules. Such parole laws may not be entirely valueless, but they are in no respect synonymous with the indeterminate sentence; they are calculated rather to bring it into disrepute.

When, under the indeterminate sentence, a prisoner has earned his parole by fulfilling the conditions required, the parole is authorized by the board of managers or the board of parole constituted by law for that purpose. Unfortunately, in some States this board of parole has allowed itself to be influenced by personal and even political appeals. The very fact that there is no marking or grading system in some of the prisons, and therefore no standard of excellence required of the prisoner himself, except of a negative character, and that the board has little to guide it in an individual case, leaves it open for external appeals.