longer than those which are usually imposed in the federal courts where the indeterminate sentence does not prevail. Section 262 of Chapter 38 of the Revised Statutes of Illinois (Cahill 1927), for instance, provides a punishment of not less than one year nor more than twenty years for forgery of any bank bill or promissory note, and in Section 793 of the same chapter the indeterminate-sentence section provides that no definite term shall be fixed but the sentence shall be from one to twenty years. Under the federal statute the maximum penalty for forging a postal money order which is certainly quite a serious offense, is punished by five years or a fine of $5,000, or both, and under this statute and in taking a random view of the federal dockets for the northern district of Illinois, we find a sentence in 1911 of 22 years, in 1915 of 24 hours; in 1919 of 2 years; in 1919 of 18 months; in 1921 of 9 months; and in 1925, one of 4 months and one of 30 days and one of 60 days. Under the indeterminate-sentence laws of Illinois the minimum penalty would be one year and the maximum would be twenty. The Board of Paroles could not parole the offender until the expiration of the first year. Even then it would not release the prisoner from punishment or supervision, but would consider him to be under parole and liable at any time to be returned to the penitentiary until the expiration of the twentieth year. THE DEFECTS OF THE FIXED-SENTENCE PLAN One justification for the fixed-sentence plan is the assumption that the main purpose of punishment is the deterring of others from committing a similar offense and that the would-be criminal would fear the fixed rather than the indeterminate sentence. This assumption, however, has hardly been proved, and we are firmly of the opinion that not only does the professional criminal fear the indeterminate rather than the fixed sentence, but that most criminals either act upon impulse or rely upon their chances of escaping detection. Almost 85 per cent of our crimes, indeed, are committed by boys between sixteen and twenty-five years of age, and youth acts upon the impulse and is reckless of the consequences. The corruption and favoritism in our political life also have led thousands to believe that even if caught, the local politicians will take care of them. The assumption also that the trial judge is in a position properly to determine the length of the sentence is hard to justify. Το a limited degree it may be true in the country districts where the judges who know intimately almost every permanent resident within their jurisdiction, as far as these residents are concerned, are able to form some estimate of the real facts and of the real culpability of the criminal and, therefore, of the measure of punishment that should be inflicted. However, they usually do not possess this knowledge in regard to transients and non-residents, and it is rarely if ever possessed by the judges in our great cities, especially in the so-called police courts where the culprits are only too often herded through without ceremony and with the speed that is used in our slaughter houses and packing plants. 5 The average period of incarceration under the parole system as recently administered has been four years. 6 Even if punishment is the only desideratum, it is therefore quite apparent that in many instances the sentences imposed will be either too long or too short. If the theory of punishment and the reformation of the offender is the motive, and the fact is recognized that in the great majority of cases, the prisoner must sooner or later be returned to society, it is quite clear that as far as possible he should be trained and reformed, and when released from the penitentiary or from the prison, be a "safe risk" and not a future danger to the community, and this being the case, a proper measure of punishment and of the term of imprisonment is of the utmost importance. It is a noticeable fact, indeed, and one of no little significance that in spite of our present day clamor for more drastic penalties and for longer terms of imprisonment, the records which have been so carefully compiled by my colleague, Professor Burgess, disclose a larger proportion of men and boys who have made good on parole after a short period of incarceration than of those who have been confined for longer periods of time." The same conclusions were also made by Miss Helen Leland Wytmer in a study of paroles in the State of Wisconsin which was conducted at the request of the State Board of Control and which In speaking of the subject, Frederick H. Wines in his work, Punishment and Reformation (Thos. Y. Crowell & Co. N. Y.), 1910, on page 213, says: "All definite sentences may be assumed to be unjust, either by way of excess or of defect. They are also inexpedient. Short sentences fail in many cases to make any impression other than one of indifference to imprisonment. They beget a class of minor recidivists known as rounders or repeaters or revolvers, who are continually in and out of prison, which becomes their principal place of abode. "Long sentences, on the other hand, especially life sentences, depress the convict too much by depriving him of any well-founded expectation of any end to the weary routine of a life without object or stimulus, except in the grave. "Definite sentences are never reformatory since they are, in fact, retributory, and are founded on the character of the act, which is past, having occurred prior to the sentence, and is therefore irrevocable. Reformatory sentences can be based only upon the character of the act, which it is desired to correct, but the time required to alter it cannot be estimated in advance, any more than we can tell how long it will take for a lunatic to recover from an attack of insanity. There is an analogy between crime and insanity which may be pushed to an extreme, yet is useful for our present purpose. "Except upon the theory of retribution, why should a criminal be sent to prison for a definite period of time any more than a lunatic to a hospital for the insane? Is the protection of society more effectually secured by an unsuccessful attempt to satisfy an abstraction, or by the seclusion of a dangerous element in the community until the convict, in the judgment of experts, who have him under constant and prolonged observation, has ceased to be such? As to retributory theory of criminal law, it need only be said that crime and penalty cannot be adjusted to each other, unless we first find some accurate measure of guilt on the one hand and of suffering on the other, which seems to be impossible." Chapter XXVIII, Table XVI. is published on page 384 of Volume 18 of the Journal of the American Institute of Criminal Law and Criminology. If the idea of reform is entertained at all it must be very clear that the trial judge cannot anticipate in advance the reformatory effect of the man's incarceration. So, too, any system which places the discretion entirely in the trial judge must result in glaring inconsistencies and in a rankling sense of injustice which will be disastrous not merely to reformation and to prison discipline but to the respect for the law itself which, above all others, the convict should be made to feel. No one who has had any experience in or any knowledge of our penitentiaries has failed to observe that it is the square deal which appeals most to the criminal and which is the most potent factor, not only in reformation, but in the willingness to yield to prison discipline. If a convict discovers that he has been arbitrarily sentenced to a term of ten years for an offense for which his cell mate has only been sentenced to two, he will, in most instances, be not only an unruly prisoner, but an anarchist when returned to society. 8 8 In an address delivered before the Sangamon County Bar Association in 1904 and in speaking of the new indeterminate-sentence and parole law as opposed to the fixed-sentence idea, Mr. Ethan A. Snively, for many years a member of the Board of Pardons, said: "The old law was as vicious a piece of legislation as was ever enacted. It was vicious because its enforcement gave the most gross inequality in sentences It was vicious because it made criminals instead of reforming men. It was vicious because it gave to the habitual criminal a short sentence while the first offender most frequently received a long term. Let me call attention to a few facts which are within the knowledge and observation of every member of the bar who has been practicing for a half dozen years. Since the present constitution was adopted and the office of state's attorney for each county has succeeded to the former provision of a state's attorney for each circuit, about seventy-five per cent of the state's attorneys have been young men-bright, smart, intelligent, but yet without having had much previous practice. The reason for this is found in the small compensation, the older and more able attorneys not caring for the office in view of the great amount of work for the income. "In many cases the young official found himself matched against the ablest member of the bar. When this occurred, it was, in nearly every case. where the offender was a man with a criminal record. The result would often be that the state's attorney would be only too willing to accept a plea of guilty and have the man receive a sentence of one or two years. The very next case might be one where some fellow, filled with cheap whisky, had committed some minor felony; he was poor and had no money to employ a lawyer, and the court in nearly every instance appoints some young and inexperienced member of the bar. The prior conviction, the plea of guilty and the short sentence had caused indignation in the community and this feeling permeats the court room. The second man goes to trial; the state's attorney is equal, if not superior, in point of ability and experience to the attorney for the defense. The evidence is heard, the jury retires not only to consider their verdict but with a determination to see that the majesty of the law is vindicated and they bring in a verdict giving the poor fellow a ten years' sentence. "When these men came to compare notes, the first would let it be known that he had committed numerous crimes, and had before served in prison. The second man had never before transgressed the law and the law itself did not recognize his crime to be as great as that of the other, and yet he had received five times the punishment. He became embittered against the law. During his long nights in his lonely cell he again and again contrasted his lot with that of the other, and when he was released he went out determined to wreak vengeance against society for what he felt was his unjust, if not inhuman punishment. He never permitted himself to go back to the circumstances of his conviction; he never reflected that the friends of the other man had come to his rescue and had secured for him the best legal talent while the young man who had defended him was entirely without experience. He only knew and only thought of the small crime he had com"Such men as Dr. Wines, Dr. Brockway, Mr. Hubbell and Dwight were deeply concerned with the poor results which the prisons were giving in the correction of offenders. By reports and by visits they learned of the remarkable success of the Irish Prison System. In 1867 Wines and Dwight, in a report to the Legislature of New York cited the Irish System as 'upon the whole the best model of which we have any knowledge' and expressed the belief that its fundamental principles could be applied in the United States with success. Out of their efforts grew the Elmira Reformatory. When this institution was established the fundamental principles of the The theory of the indeterminate sentence and of the parole system is not punishment merely, but reformation by training accompanied by a punishment so severe that other persons will be warned against committing the same offense. It punishes the convict to vindicate society and is a warning both to himself and others. But it also realizes that the convict will sooner or later be returned to the community and it seeks to so reform him and to so control his conduct after release that he will not again return to crime. A WORLD-WIDE EXPERIMENT Though Illinois was among the first of the American states to adopt this system, it was by no means an experiment. The system, indeed, had been suggested by great writers and thinkers such as Vilain XIII in the latter part of the Eighteenth Century and by Mirabeau in a report to the French Revolutionary Convention as early as 1781. It had been recommended to the English Parliament by Sir William Molesworth in 1838, and more or less put into operation in Australia and soon after in England. It had been used with pronounced success in Ireland. 10 In America the real advance began in 1870 when, according to John Lewis Gillin: mitted and his own blameless past record, and its result of a long sentence as contrasted with the criminal career of the other one and his short sentence. "Another important factor always entered into the trial if the state's attorney would not accept a plea of guilty where the prominent criminal lawyer was employed. The attorney would never fail to have one or more friends on the jury who would stand out for an acquittal or a short term, and a compromise verdict would result and the compromise was always for a short sentence. "Let me illustrate another vicious feature of the old law. A. number of years ago the farmers succeeded in having the law so amended that the minimum term for horse stealing was fixed at three years. In this country a man might steal the most disreputable old horse ever seen on our streets; he was indicted for horse stealing and, if found guilty, would have to serve at least a three years' sentence. In one of the adjoining counties a man might steal the finest imported. horse that ever left the shores of France; he could be indicted for larceny and receive a year's sentence." (Chicago Legal News, Vol. 36, p. 268.) • There can, of course be no justification for the New York system which automatically releases and places upon parole at the expiration of the minimum sentence. In speaking of the system as compared to that adopted in Belgium, Mr. Louis N. Robinson says: "Or take the matter of granting release on parole for instance in Belgium. It would be rather difficult to imagine men being released wholesale at the expiration of their minimum sentence as is so commonly done in American prisons Continuous observation of the individual prisoners by administrators secure in their position, acting slowly and carefully as judges might be assumed to act, results in a far closer approach to our ideal of the indeterminate sentence than one is accustomed to find at home." 10 See Punishment and Reformation by F. H. Wines, p. 196. Irish System in many respects were written into the law. Here we find, among other features, parole. Thus from Maconochie's experiments in Australia, by way of the Irish System, came into American correctional system this new device of releasing convicts." The defense of the system is world-wide. As we before stated, it was recommended and approved by the International Prison Commission which met in London in 1925 and which represented the best thought of fifty-three nations. Nowhere, however, has its scope and efficiency been better stated than in a recent report of the Pennsylvania State Parole Commission to the General Assembly of that Commonwealth. This report, among other things, said: "Parole is not the same thing as pardon. Prisoners who are unconditionally pardoned receive the official forgiveness of the state and leave its institutions without further obligations. Prisoners who are paroled are not forgiven and may be returned to prison for misbehavior subsequent to liberation. "Parole is not the same thing as probation. Convicts are released by courts upon probation before they have been imprisoned. The term 'parole' is accurately applied only to those who are released subsequent to a period of confinement. "Parole may be regarded as a method of releasing adults from penal institutions under conditions which permit their reincarceration in the event of misbehavior. "Parole is not leniency. On the contrary, parole really increases the state's period of control. It adds to the period of imprisonment a further period involving months or even years of supervision, during which the offender may be reimprisoned without the formality of judicial process. "Parole then does not operate as a favor to the criminal. Its chief merit, in fact, is that it offers society a far greater measure of protection against him than any other means of release which has yet been devised. "Parole aims to insure society against a renewal of criminal activity by the scores of convicts who are being released daily from our penal institutions. "Parole may be a method of punishment, but more than that, it is a method of prevention second to none. "Good parole work should be a positively constructive process of social rehabilitation. "If a prisoner is liberated by any other means than parole he goes out a free man. The state has lost its control. Society is no longer safe. Unless we are to extend greatly our use of capital punishment and life imprisonment, we must choose one of four methods of release. "Parole is the best of the possible methods of release because it is the safest." THE INDETERMINATE SENTENCE AND PAROLE IS FAVORED BY THE COMMITTEE IF ADEQUATELY PROVIDED FOR AND PROPERLY ADMINISTERED The Committee then is of the opinion that the system of the indeterminate sentence and of the parole is preferable to that of the flat and definite sentence, but to this statement and conclusion, it wishes to make an emphatic qualification that it is only preferable if it is properly administered. |