Nevertheless corporal punishments, as the main form of repression,
even when carried out with less <p 211>barbarous instruments, are
too deeply opposed to the sentiment of humanity to be any longer
possible in a penal code. At the same time they are admissible as
disciplinary punishments, under the form of cold baths, electric
shocks, &c., all the more because, whether prescribed by law or
not, they are inevitable in prisons, and, when not regulated by
law, give rise to many abuses, as was shown at the Stockholm
Prison Conference in 1878.
I agree with Kirchenheim that Dr. Kraepelin's scheme of seclusion
for unfixed periods is more practical and hopeful. When the
measure of punishment is fixed beforehand, the judge, as Villert
says, ``is like a doctor who, after a superficial diagnosis,
orders a draft for the patient, and names the day when he shall be
sent out of hospital, without regard to the state of his health at
the time.'' If he is cured before the date fixed, he must still
remain in the hospital; and he must go when the time is up, cured
or not.
Semal reached the same conclusion in his paper on ``conditional
liberation,'' at the second Congress of Criminal Anthropology.
And this notion of segregation for unfixed periods, put forward in
1867 for incorrigible criminals by the Swiss Prison Reform
Association, has already made great progress, especially in
England and America, since the Prison Congress of London (1872)
discussed this very question of indefinite sentences, which the
National Prison Congress at Cincinnati had approved in the
preceding year.
In 1880 M. Garofalo and I both spoke in favour of
<p 212>indefinite segregation, though only for incorrigible
recidivists; and the same idea was strikingly supported in M. Van
Hamel's speech at the Prison Congress at Rome (1885). The
eloquent criminal expert of Amsterdam, speaking ``on the
discretion which should be left to the judge in awarding
punishment,'' made a primary distinction between habitual
criminals, incorrigible and corrigible, and occasional criminals.
``For the first group, perpetual imprisonment should depend on
certain conditions fixed by law, and on the decision of the judge
after a further inquiry. For the second group, the application of
an undefined punishment after the completion of the first sentence
will have to depend in the graver cases on the conditions laid
down by law, and in less serious cases upon the same conditions
together with the decision of the judge, who will always decide
from time to time, after further inquiry, as to the necessity for
prolonging the imprisonment. For the third group, the judge will
have to be limited by law, in deciding the punishment, by special
maximums, and with a general minimum.''
Public-domain text, read in full here on John Shaqi.
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