The offender and his relations to law and society

Front matter

CORNELL

UNIVERSITY LIBRARY

THIS BOOK IS ONE OF A COLLECTION, MADE BY

Part I Society And The Offender Chap

I. DIFFERENT VIEWPOINTS 3

Why the Offender? — Product or By-product? — Old Ideas — Radical Ideas — Common-sense Ideas — Social Control of the Offender.

II. SOCIETY'S TREATMENT OF THE OFFENDER 11

The Different Purposes of Punishment — Old Correctional Institutions — The Question of Discipline — The Criminologists — Prison Reform from Within — Social Reformation and - Correctional Work.

III. THE COURT AND THE OFFENDER .... 31

The Court, Society's Bulwark — Establishment of Guilt or Innocence — Inferior Criminal Courts: The City Magistrates' Court; Court of Special Sessions — The Higher Criminal Courts — Weaknesses of the Present System: Lack of Uniformity of Treatment; Traditional Restrictions; Frequent Appeals; Faulty Administration; Government Divided against Itself; Congested Calendars and Prisons; Faulty Identification — Imposition of Sentence— Faulty Diagnosis,

CONTENTS

CHAP. PAGE

IV. CLASSIFICATION OF THE OFFENDER ... 58

Bases of Classification — Physical and Mental Status: The Physically Handicapped; The Mentally Handicapped; The Inebriate; The Habitually Idle; The Unskilled; The Aged — Character and Conduct; The Capable and Hopeful; The Capable and Wilfully Delinquent; The Incapable and the Unfit — The Nature and Cause of Delinquency: The Casual and Environmental or Social Offender; The Constitutional or Habitual Offender; The Symptomatic Offender — The Training Required — The Age Group of the Offender: The Physical Age Group; The Mental Age Group.

V. PROBATION AND PAROLE 80

Who Should Be Placed on Probation — Who Should Be Probation Officers — Is Probation Punishment? — Extension of Probation System — How Long Should Probation Continue? — Who Shall Be Placed upon Parole? — Who Should Act as Parole Officers? — Combination of Probation and Parole.

VI. THE CLEARING-HOUSE 102

In the Educational and Business Worlds — Clearing-houses for Offenders — What the Clearing-house May Determine.

VII. THE INDETERMINATE SENTENCE 114

Failure of the Definite Sentence — Features of the Indeterminate Sentence: The Inmate Should Be Cured of Disease; The Inmate Should Be Fitted to Earn His Own Living; The Permanent Custodial Cases Should Be Segregated — Weaknesses of the Indeterminate Plan — What Experience Teaches.

VIII. AUTOCRATIC GOVERNMENT AND DISCIPLINE 139

Kinds of Government — The Separate and Silent Systems. .

IX. OTHER SYSTEMS OF GOVERNMENT AND DIS-

CIPLINE I55

The Benevolent Despotic — The Elmira System — The Mixed Autocratic and Benevo-

CONTENTS

chap. page

lent Despotic System — The Mixed Benevolent Despotic and Hamiltonian Republican — Jeffersonian Democratic System — The Best Type of Prison Government.

X. INSTITUTIONAL ORGANIZATION AND

TREATMENT 174

Prison or Hospital — Institutional Structures — Typical Institutions: State Reformatory for Women, Bedford Hills, New York; George Junior Republic, Freeville, New York; Orphan Asylum of the Hebrew Sheltering Guardian Society, Pleasantville, New York; The New York City Reformatory, New Hampton Farms, Orange County; The New York City Inebriety Farm, Warwick, New York; Great Meadow Prison, Comstock, New York; Guelph Prison Farm at Guelph.Ontario; Westchester County Penitentiary, near White Plains, New York; Minnesota State Prison, Stillwater; Municipal Farm.Rikers Island, New York City; Otisville Sanitarium — Structures to Be Avoided.

XI. PRODUCTIVE PRISON WORK 197

XII. INDUSTRIAL TRAINING 207

Sentences to Hard Labor Impractical — Book-school Training — Supervision of Work and Training.

XIII. INSTITUTIONAL MANAGEMENT 216

Reception Procedure — Conduct and Work Records.

XIV. INSTITUTIONAL PROCEDURE 233

Punishment — Clothing — Hair-cuts — Classification and Sanitation — Food Preparation — Records and Accounts — Releases and Discharges.

Part II The Prevention Of Crime

I. FUNDAMENTAL SOCIAL FORCES 253

The Church— The Home— The School— Recreation and Play— Health and Sanitation.

CONTENTS

CHAP. PAGE

II. TENDENCIES OP POLICE SUPERVISION ... 286

Morals-control Work Weakens Police Morale — Private Opposition to Morals Control — Penal Law Often Unfair to Children — The "Stool-pigeon" System a Necessary Evil — Police and the Ex-convict.

III. THE ROLE OP THE POLICE 3°5

Centralized Identification and Other Records — Employment — Conclusion of the Matter.

APPENDICES

I. BRIEF DESCRIPTION OP THE FUNCTIONS OF

SELF-GOVERNMENT IN THE PRESTON SCHOOL OF INDUSTRY 315

II. INSANITY AND CRIMINAL RESPONSIBILITY

—REPORT OF COMMITTEE "A" OF THE IN- STITUTE OF CRIMINAL LAW AND CRIMI- NOLOGY 323

III. PROBATION WORK 332

IV. EXCERPTS FROM THE REPORT OF WARDEN

GAYLORD B. HUBBELL, SING SING PRISON, UPON THE IRISH CONVICT SYSTEM AND ENGLISH PRISONS, 1865 337

V. INDETERMINATE SENTENCE RESOLUTIONS,

INTERNATIONAL PRISON CONGRESS, WASHINGTON, D. C, OCTOBER, 1910 . . 347

VI. CENTRALIZATION AND CONCENTRATION OF

STATE CONTROL 349

VII. PLAN FOR THE RATIONAL TREATMENT OF

WOMEN CONVICTED IN THE COURTS OF THE COUNTY OF NEW YORK (OR CITY) . . 358

WORKS, ETC., QUOTED AND REFERRED TO . 373 AUTHORS, ETC., QUOTED AND REFERRED TO 375 INDEX 377

ILLUSTRATIONS

Penitentiary and Workhouse, East View,

Westchester County, New York .... Frontispiece

Floor Plan, Detention Home for Women, to Be

Erected in New York City Facing p. 174

Perspective from Twentieth Street of Detention Home for Women " 175

Block Plan of State Reformatory for Women,

Bedford Hills, New York " 180,181

Block-plan Layout, Hebrew Sheltering Guardian Orphan Asylum, Pleasantville, New York " 186,187

Block-plan Layout of Penitentiary and workhouse, East View, Near White Plains, New York " 192, 193

Ground Plan and Layout, State Penitentiary

Buildidgs, Stillwater, Minnesota .... " 198, 199

Floor Plan of Dormitory, Municipal Farm,

Rikers Island, New York City .... " 202

Isometric View of Cubicles in Dormitory, Municipal Farm, Rikers Island, New York City " 203

First-floor Plan, Otisville Sanatorium for Incipient Stages of Tuberculosis, Otisville, New York " 206

Second-floor Plan, Otisville Sanatorium for Incipient Stages of Tuberculosis, Otisville, New York " 206

Inmate Mowing, New York City Reformatory,

New Hampton, New York " 212

Plan, Receiving Division, Administration Building of New York City Reformatory, Agricultural and Industrial Colony .... " 244

Floor Plans, Building for Treatment of Venereal Diseases, Riverside Hospital, North Brother Island, New York City .... " 370

How are we to deal with the offender? There are those who are able to understand but a single phase of the problem and who accordingly hold to a single remedy as a cure-all. According to their respective points of view they urge the redrafting of penal laws, or the reorganization of courts, or the abolition of grand juries, or the elimination of the shortcomings of the police, or the reorganization of prisons, or the introduction of socialism and phases of communism, or the sterilization of idiots and of the feeble-minded, or improvements in religious, in educational, in recreational, and in health work.

It is certain, however, that the problem cannot be solved merely by changes in a single governmental institution, nor by the improvement of social conditions, nor by the adoption of certain expedients. The gradual and steady improvement of all social conditions and of all social and governmental institutions, and the gradual elimination of conditions which impede progress are the only sure bases of future progress.

We should recognize at once that there are not a sufficient number of criminals to challenge successfully the socializing forces of modern society. Criminals now number, and in the past have numbered, only about 2 per cent, of the total population. If they constituted 20 or 30 per cent, of the total population, 1 or if they were rapidly increasing in number the problem would seem very much more serious.

There is apparently no one single cause of delin-" 1 quency. Many causes contribute to delinquency and many forces work together to prevent the development of the delinquent or to effect his rehabilitation as a self-supporting, self- controlled member of society.

There is no one method of treating the offender in order to effect his rehabilitation. Changes in social and governmental organizations and industrial organization profoundly affect the delinquent. Some changes tend to eliminate him, while others create new crimes and offenses, and as a consequence, new classes of or an additional number of offenders.

Some students have already noted the small percentage of old men and old women among delinquents, and the large number of those under thirty years of age. Some hold that this proves that crime is the result of misdirected adolescent energies and that excessive energy is wiped out by advancing years. Others hold that the criminal dies young. The whole truth is not yet known. Our studies have not been carried far enough. The adolescent period and the years following adolescence are productive of a great deal of social disorder. The death rate among offenders is very high and many of them perish before they are forty. Careful and extended investigation will in the future reveal to what extent adolescence operates to encourage criminal tendencies and how far maturity and early death operate to eliminate the offender.

Commendable progress has been made in eliminating the offender and in effecting his rehabilitation through well-thought-out plans. We are beginning to treat the offender in much the same way as we treat the insane. The treatment of the insane was somewhat similar to our recent treatment of the delinquent. Originally the insane were treated as if they were possessed of demons. Finally, special treatment was provided, and special institutions were established to care for such afflicted persons, with the result that 20 to 30 per cent, of those committed to the best hospitals for the insane are either released as cured or may be safely released under the supervision of friends or relatives. The modern tendency is to treat the delinquent in much the same way. The best practice calls for a careful diagnosis of the case of each offender and directs that treatment based upon such investigation should then be provided. This treatment need not necessarily be medical in character. Sometimes it should be careful supervision of ordinary personal habits until good habits are substituted for bad habits.

We now know that commitment to prison should be made where it is not in the interest of the individual or of society to release the convicted offender under supervision.

In formulating different methods of handling the individual delinquent we have learned that old methods should be utilized as long as they are really serviceable, and should not be discarded merely because they are old. The wisest leaders agree that new methods should be carefully tested before they are adopted generally, because experience has demonstrated that there was much good reason for the adoption of the old methods and policies which the inexperienced seldom appreciate.

No single plan of administration or single type of government and discipline should be adopted for all classes of offenders in the same institution, or in different institutions. The human equation must be recognized and differentiation must be made accordingly.

I have attempted to deal with the problem of the offender from a practical standpoint; that is, from the standpoint of one responsible for the daily administration of a large department, which has been created to deal with certain phases of the correctional problem in the largest city in the world. This experience has demonstrated the necessity for co-operation between the different governmental and private agencies, so that the correction department may be able to function to the best advantage I have found it necessary, in my own work, to refer to historical origins and to old methods of treatment in order to understand differences between existing methods and policies and those which have partly superseded them.

In order to administer intelligently this large department, I have also found it necessary to proceed carefully and to experiment widely before effecting a departure from well-known methods of treatment.

In the following pages will be found the results of my study and of my experience. I have attempted to point out how the correctional system of a State should be developed, and from what point of view its various correctional institutions should be managed. There are chapters dealing with the court, with the different systems of classification, with probation and parole, with the clearing-house laboratory for scientific investigation, with the indeterminate and the definite sentence, with autocratic government and discipline and other systems of government, including the so-called modern self-government system, with institutional organization and treatment, with prison labor, with industrial training, with details of institutional management, and with institutional procedure.

I do not feel that I have in any way exhausted the subject. I have attempted to formulate suggestions and methods of handling the delinquent which I hope will prove of some practical value to students, judges, lawyers, institutional managers, institutional officers, boards of control, and other, governmental agencies which have either to provide new facilities or to operate existing facilities dealing with the delinquent.

It has seemed to me that a method of treating the individual offender may be adopted which may at the same time furnish information upon which the city or the State should base its crime-prevention program. There has been much discussion of metaphysical phases of the subject, but very little has been done to learn the facts with respect to the delinquent and his environment. These facts when they are developed will prove of great importance in preventing the development of crime and of the different kinds of lesser offenses, if they are used in proper manner.

How these facts may be developed I.have attempted to indicate in Part I of this book. In the second part I have given consideration to those fundamental social forces upon which, in my judgment, we must depend in order to check the development of the offender. Among the most important of these are the home, the church, the school, health and sanitation, and the police. In order to prevent the growth of the offender, society must depend upon forces or agencies such as these to eliminate those conditions which permit individuals to drift into a life of crime. The information collected while dealing with the delinquent, as suggested in Part I, should be utilized by the forces outlined in Part II in order to improve the character of their work. In short, all the forces of law and of order and of social development should be utilized to the fullest extent and in harmonious co-operation as far as possible.

Treatment of symptoms should not be allowed to crowd out the study of causes, as the study of causes will help prevent the development of the offender. The treatment of symptoms may, it is true, help check or curb criminal activities, but such treatment is hardly sufficient to prevent the growth of abnormal traits which may, if not properly handled, develop into criminal acts. Prevention through a study of conditions, and through the encouragement of normal growth and development, is of primary significance.

Burdette G. Lewis.

New York, 1917.

Part I SOCIETY AND THE OFFENDER

DIFFERENT VIEWPOINTS

Why the Offender? The offender, like the poor, is always with us. Through all ages he has been society's problem, civilization's enigma. Why should he persist? Is he civilization's spoiled child, who makes sport of nature, or is he a broken reed caught up and crushed by the mills which the gods grind? Does he prove that mankind is not advancing, that evolution is change but not progress, and that society multiplies her breeds of men to destroy each other?

Product or By-product? Despite the age-long existence of vendetta and the criminal bands, and despite the continuance in our great cities of criminal organizations that apparently have a public opinion, a code of morals and courts of their own which our statutory law fails to control, the hopes of mankind are not vanquished by the offender. Most men prefer to believe that change means progress, that society normally encourages and fosters the higher and not the lower, the spirit and not the brute, in man. Through all the ages men have accepted these propositions as facts, and have met as best they could the dangers and vicissitudes they encountered by the way.

Most men have regarded the offender either as a man who has grown weary in the search for the pot of gold at the rainbow's end or as a man forging ahead who is unwilling to undergo the restraints imposed by law and convention. From either viewpoint most men regard the offender as one who increases the difficulties and trials of mankind, not as one who prevents or defeats progress — although enthusiasm for the good, on one hand, or pessimism and dismay with respect to righteousness, on the other, may retard the car of progress.

The point of view of this book is that mankind is advancing; that progress is continuous, even though it be delayed by opposing forces. We agree with Dr. Richard T. Ely, who, in his treatment of competition, has taken the position that "the altruism which has been developed in competitive society, and which has manifested itself in an infinite variety of methods for the alleviation of human suffering, the prolongation of life, and the amelioration of man's social and physical environment, has been co-existent with the increasing strength and efficiency of men in modern society. The reasons for the theory of a possible decline in vigor, due to modern improvements resting upon a combination of philanthropy and science, are obvious enough. The reasoning runs about as follows:

"Philanthropy and science keep alive men who otherwise would perish. These men reproduce their kind, and the result is an enfeebled progeny. Reproduction goes on, and as heredity determines chiefly the characteristics of those who live, we have a feebler parentage leading to a feebler race of men.

DIFFERENT VIEWPOINTS 5

"The writer can at this place describe such thoughts and observations as have convinced him that never before has there been a higher degree of vigor in modern nations, and never before have more promising efforts been made to maintain and even to increase man's physical powers and economic efficiency." *

For convenience in treatment we may group the leading ideas concerning the offender into the three following classifications: A, Old Ideas; B, Radical Ideas; and C, Common-sense Ideas.

Old Ideas. The flight of the offender to shrines and places of refuge helped to keep alive one conception of how he could be treated. The brief stay in this place of refuge finally gave way to the longer stay in another place of refuge — the prison. Foundation of the prison gave rise to various ideas which became settled in practice. The demand of this conception was for treatment of the offender which would be, first, punitive; second, deterrent; third, reformative; fourth, preventive. Some nations and institutions at times seem to have centered upon punishment alone, and to have adopted measures which not only were destructive of good in the offender, but also encouraged the brute in him; then they turned him loose in the community with a desire for revenge rankling in his heart. We need not be surprised, therefore, when we find that he became like a hunted animal, possessed by fear and hatred of those orderly and repressive forces of society which he felt had goaded him on. To him the older plan meant destruction of his better self, not destruction of the evil in him; the breaking of his body and mind,

1 Ely, R. T., Evolution of Industrial Society, pp. 164, 165, 181. The Macmillan Company, New York, 1906.

and his later reception by the community as a branded and abnormal creature. In some of these nations the sick and the offender appeared to most men as persons possessed of demons, whose bodies should be broken and outraged in order to drive the demons out. Finally the sick won the right to decent treatment, later the insane came into their own, and still later the offender was able to claim some sympathy for his imperfections and some consideration for the good in him as well as condemnation for the bad in him.

Radical Ideas. At the other extreme to-day are those who would coddle and fondle the tiger in the criminal; who believe that the gunman who murders for a few dollars, and the abnormal beast who slashes little ones to gratify a fiendish curiosity, are children of nature for whom society is responsible. They would overwhelm such a man with kindness, believing that good is so much stronger than evil that in a fair fight the good will prevail. They are idealists who cheer mankind, but who, given free rein, would wreck institutions through neglect and misunderstanding. They believe that the sense of justice descended from on high, although research informs us it was born and grew in the midst of mortal combat between the Davids and Goliaths, in the prize-ring between antagonists who refused to hit below the belt, and on the frontiers where experience taught men to obey "the rules of the game."

Some among these men and women are less idealistic and visionary, but fail to appreciate that "the unschooled sense of justice acquiesces in a shoot-at-sight policy as cheerfully as in a r6gime of peace, sees fairness no less in the arbitration of the gun than in that of a court." Still others among them fail to

DIFFERENT VIEWPOINTS 7

understand that "reasonable rules once set up, the just-minded hasten to obey them, because now each knows what forbearances he can look for in his rivals. Thus is formed a law-abiding disposition, the birthright of all good laws, but soon lost if they are not enforced." *

Common-sense Ideas. Between these two extremes the truth lies. How may we discover it? How shall we act when it is discovered? We have the criminal who is bad because of his physical and mental make-up, to whom Lombroso and his school called attention. We have the clever scoundrel who is bad because he wishes to be so, and whom our well-meaning sociologists have failed to understand. These represent a small minority of those with whom we have to deal. Between these two groups lies the great group of offenders who are more or less passive, whose enthusiasm and enterprise are limited. How are we to leaven this great lump; how inspire them to noble deeds? This is the. real problem with which society has to deal.

There is only one way to deal with this great middle group. It is to attack the problem by the use of modern scientific and common-sense methods. The abnormal offender and the wilful offender may best be consigned to study by those who are chiefly interested in the peculiar, the unusual.

We cannot determine exactly at present how far the offender is directly responsible to society for his shortcomings. We must assume that heredity is partly responsible and environment is partly responsible; that in one man perhaps the hereditary in-

» Ross, E. A., Social Control, pp. 34, 35, the Macmillan Company, New York, 1901.

fluences and in another man perhaps the environmental influences are chiefly responsible for his downfall. We do know that each offender must be treated as an individual and not merely as one of an outcast class, and that each offender will yield to treatment if we can but discover what treatment to apply. One starting-point, therefore, is the offender himself. Then we should consider those institutions which have been organized for dealing with the offender.

The people at large must await patiently the outcome of careful investigation and careful treatment, and not become either panic-stricken at outbreaks of criminality or misled by glowing promises of reform. The only sure way is to repress crime where it appears and to formulate and carry out plans for prevention of the development of the offender.

The forces of government and of society are perplexed by the young gangman, "the white-slaver," and the young gunman — the boy of the idle, predatory sort who is "wise," sly, slangy, "tough." His swagger, his slang, his cocksure gossip of gamblers, prize-fighters, and women may indicate a blood taint, a perversion and inversion of instinct, or a failure of society to furnish to him the dramatic interest and appeal which his nature craves. The law may prescribe a penalty to be visited upon him for his offenses, but the court stands helpless if it is called upon to prevent the production of this child of the street.

Society is not without resources, however, in dealing with these strange children of the world. It has resources other than the law and the courts. The child-welfare stations, with their physicians and visiting nurses, have demonstrated that babes born in the same homes which have produced these gang-

DIFFERENT VIEWPOINTS 9

sters and these children of the streets may have their crooked limbs made straight, their tiny, emaciated bodies made plump, and their little lives made cheerful and sunny. We now know that society, through the adoption of proper preventive measures, may insure to children yet unborn a decent birth and a happy childhood, leaving no room for the perversions of instinct and the attractions of the lower nature which have produced the elder brother of the street and the brothel.

The forces of society, therefore, must deal with the offender kindly, firmly, and intelligently. He should be punished only for purposes of reproof and instruction in righteousness; his blood should not be contaminated, his body destroyed, and his spirit broken and brutalized. His criminal tendencies should be curbed and his social impulses quickened so that his case may serve as a warning to others. He should be trained as a child in school, treated as a patient in a hospital, molded as an apprentice in his trade, so that he may be able to take his place as a self-supporting member of society, either in an institution under the control of others or in the outer community under self-control. As between the individual offender and society, there can be no compromise and no surrender of society to the offender. Wherever the purposes of society and the purposes of the offender cross, the offender must give way; but it is an unwise society which destroys any one of its children unless he has assailed the very foundations of society itself.

Social Control of the Offender. The following pages present in review society's agencies and methods for dealing with the offender. All are worthy of respectful consideration and entitled to intelligent discrimination so that we may see beyond words and symbols which describe the realities, and discern the realities themselves. These realities are men, not monsters; disease, not demons; buildings, not caves; and evolution of good and evil, not special creation of both.

II

society's treatment of the offender

The Different Purposes of Punishment. Society must deal with the individual offender. It may inflict vengeance upon him because he merits punishment. It may intimidate and punish him in order to deter others from imitating his bad example. It may aim at the reformation and rehabilitation of the offender, or it may undertake to prevent the development of offenders by vigilance, by moral training of the young, and by devising practical checks to the growth of the offending classes. These different standpoints are not mutually exclusive. They overlap. As a matter of fact, they always have overlapped.

It is a mistake to assume that the "eye-for-aneye" and "tooth-for-a-tooth" policy once prevailed to the exclusion of all other methods of treating the offender. Careful study has shown that even from the beginning society's agents never have intended merely to wreak vengeance upon him. They assumed that punishments imposed were for the good of society. Earlier students were misled by the emphasis placed upon different points of view by their best-known contemporaries. During the Middle Ages, when, according to these earlier writers, all men were apparently bent upon destroying the offender, we now know that some insisted upon kind treatment. It is a mistake to assume that these four different standpoints mentioned above, from which the offender may be treated, clearly mark out the different stages of historical development in society's treatment of the offender. There was an overlapping of methods in all periods.

Even in the days when the blood feUd held sway a man might flee to any place of worship and there remain under protection of the sanctuary pending investigation of his case; and might eventually be released from this asylum provided he agreed to take up his abode with some other clan or tribe or in some other country. Even during that period when men's hands and feet were chopped off, eyes put out, tongues cut out, ears cut off, or foreheads branded for trivial offenses, other persons were treated, at the hands of a jury of their peers, with every consideration of humanity and fairness, though guilty of offenses which to-day would be considered more serious than those which resulted in physical mutilation. 1

It would seem, therefore, that notwithstanding the fact that each century developed certain higher standards of civilization than did its predecessor, there were certain defects in the social eye by reason of which it failed to observe and appreciate the brutalities and barbarous practices which persisted in each stage of development. We see this strange con-

1 The early jury gave testimony and adjudged the offender's case, while at the same time it passed upon his guilt or innocence. See article on jury and grand jury in the Encyclopedia Britannica, eleventh edition; also Sir James Stephen's General View of English Law, and Pollock & Maitland's History of English Law.

trast in the Church's kindly treatment of the young in the early church schools as compared with its treatment of the so-called heretics during the period of the Inquisition. We see it in the treatment of children in the English home as compared with their treatment in institutions exposed by the pen of Dickens. We see it in the shameless neglect of young men, women, and children committed to the detention prisons of England, awaiting trial for trivial offenses — unfortunates whose horrible condition was so faithfully depicted by John Howard — as compared with plans which were made for the more humane treatment of those who chose to be deported from England to Australia in order to escape the gallows. 1 Even those who presided over the Inquisition had in mind the reformation and rehabilitation of the offender brought before them, as well as suppression of the delinquency charged.