PENAL AND PRISON DISCIPLINE: A Report in 1880

At THE SEVENTH ANNUAL CONFERENCE OF CHARITIES AND CORRECTION

Held At Cleveland, June and July, 1880.

Edited By F. B. Sanborn, President Of The Conference, and Secretary of The American Social Science Association.

Preface: The Seventh Annual Conference of Charities and Correction — an organization consisting of delegates from StatesBoards, representatives of municipal, local and private charities, and members of the American Social Science Association, interested in charitable work — met in 1880, at Cleveland. The Cleveland Conference was the most important of these gatherings that has been held. Not only were the various State Boards of Charities represented, but a considerable number of States having no such Boards were represented by delegates appointed by their respective Governors. Officials from a large number of public and private Institutions, and the Charity Organization Societies of cities were also in attendance, as well as many private citizens interested in charity.

Penal And Prison Discipline:  A Report of The Standing Committee:  Read By Henry W. Lord, of Michigan, Chairman of The Committee. (pp. 37-59).

The treatment of criminals on the present scale of management is a comparatively new science. Not so new as steam navigation, railways and telegraphs, but comparatively new; so new indeed, so undeveloped, when we contemplate the slow processes by which society is built up, as scarcely to be even entitled to the name of system or science.

Until recently, the world for the most part had but two or three prompt and summary processes or methods of dealing with prisoners, they being held as such only while their final disposition awaited the determination of the law. Slavery or transportation when such resources were available, otherwise death, settled all questions of escape or expense of confinement, maintenance and discipline.

Offences of almost any degree of moral turpitude could, in many of the most enlightened countries, be expiated by fine, — that being in some ways desirable by the governments, —  and for some minor faults, and noticeably for differences of opinion in regard to established forms for the time being, lashings, mutilations and the stocks were more or less in use; while for heresy, that pertaining more nearly to the divine authority, torture by fire was regarded as appropriate and in keeping with the ultimate condition of wicked men, according to the teachings of those times.

Prisons were rarely more than dungeons in the vaults of castles and strongholds, in which men were not expected to be public burdens for any great length of time, for it was designed to inflict a greater rather than a less punishment than death. Men were seldom so held in mitigation of penalty, but rather for purposes involving worse than immediate death.

If distributed in places of detention in the form of jails, and held for trial, they were soon either enlarged by acquittal or punished by fine, whipping, torture, execution or banishment, thus concluding expenses, and providing room for the next delinquents.

Not the slightest idea of organized reformatory measures as connected with prisoners, ever entered into the hearts of men until almost within the memory of persons now living; and the first thought of systematized prison labor as an element of discipline was an American idea, reduced to practice in the early part of the present century.

Such was the policy of our own English ancestors, who punished almost everything with death that had in it the nature of crime, from shop-lifting to the amount of five shillings to offences of the greatest magnitude — as rape, murder and high treason. Thus, 80,000 suffered in a single reign, and about 20,000 in the next.

SALE OF CONVICTS TO THE COLONIES. There was a period of time, from the early part of the 17th century onward, when a happy thought held sway with our forefathers, and the sale of prisoners for limited terms of service to the colonists in America emptied the jails of England and Scotland, so that the axe and halter had temporary rest. Thousands of men and women, boys and girls, escaped gibbet and scaffold and made forced passage across the Atlantic, to assist the star of empire then beginning on this continent to organize its westward way.

The supply of convicts, which had been sufficient for the useless purposes of the executioner, was soon found entirely inadequate to the American demand for useful appliances; and that a convict, however bad his home record, could raise more tobacco than it cost to pay for and support him. The resulting profit stimulated a demand that – after emptying the jails of condemned inmates, to which were added many tramps and vagrants whom the overseers of the poor desired to get rid of,-remained so far unsatisfied that a considerable amount of kidnapping was practised along the English coasts, and many innocent young persons were thus violently removed. Thousands of Scotch, Irish and English prisoners of war taken in the various rebellions, including many men of position and culture, were also disposed of in the same way.

LEADS TO THE SLAVE TRADE. Having thus exhausted their supplies, the shipping merchants of the realm transferred their enterprise to the coast of Africa, -where they had to some extent already established it, concurrently with operations in England,- and undertook to relieve the African chiefs also of their surplus prisoners and captives, or such as they might otherwise feel obliged to put to death. These the navigators offered to transport also to the American continent, and they were willing to make little presents in money or merchandise for the privilege of doing so.

This was permitted and encouraged by the English sovereigns, who levied a small tax per capita, for the royal purse, upon the black prisoners so exported to the colonies. Thus the royal interest was awakened and conserved in this life-saving procedure. It was discovered that the prisoners of the African chiefs were inexhaustible in number, as each began to make prisoners of all he could catch that could be accused of having been born outside the boundaries of his tribe, or who had incurred displeasure within it.

In the case of the African prisoners, justice was not only blind but deaf; the evidence, if any were produced, rested on the equivalent of dicers’ oaths; and as the black would not sell for limited periods as well as white captives, it was deemed appropriate to make their terms of service perpetual.

This latter mode of penal and prison discipline continued long after the independence of the United States, and came to be regarded by the mother country, which invented it, as the especial and conspicuous iniquity of her daughter States in the west.

CAPITAL PUNISHMENT. It is not our purpose to discuss at length the topic of capital punishment, but as it is inconsistent with the general theory of this paper, which will develop itself as we proceed, and in the way of such prison discipline as we seek to establish, we cannot avoid giving to it at least sufficient consideration to justify our utter condemnation of its practice.

The system in Christian countries rests for justification mainly upon alleged spiritual authority, and in less enlightened nations on vengeance alone; as it did also in those early times among the Hebrews, when the executioner was an avenger of blood, and retaliatory laws appeared best adapted to the undeveloped characteristics of the people. The numerous Biblical references that justified it then, might be supplemented by many others more appropriate to the progress of society, and destined, perhaps, to influence its later and improved condition; one of them is as follows: “As I live, saith the Lord God, I have no pleasure in the death of a sinner, but that he would turn from his wickedness and live.”

Our Anglo-Saxon ancestry caught the spirit and practice of the Mosaic law more accurately than we have kept it; but if to return to this law in all its sanguinary forms were inexpedient, then it may logically follow that the scriptural mode is not absolutely mandatory on us, a departure from its prescribed methods and abridgement of its enactments being regarded as an improvement.

The constable in Anglo-Saxon days was required by law, if he caught a murderer in the criminal act, or so soon after as to have the knife in his hand; or the robber in his criminal act, or so nearly so that he had the stolen goods in his hand or on his back; then it was the officer’s duty to slay him on the spot, before he could find refuge or sanctuary. The officer was liable to fine and punishment if he failed to do so, or allowed him to escape. So, also, the same Anglo-Saxon ancestors, for certain crimes, cut off hands and feet, cut away tongues and plucked out eyes, with other nameless mutilations, looking still to the Old Testament scriptures for precedent and authority.

Since that time, a thousand years ago, our English race and other European nations have been making progress, though experimenting in a sea of blunders on criminal procedure, giving some color to the remark, that nations emerging from barbarism are alternately slaves and tyrants. The penalty of death survives, but prescription can never render its testimony as conclusive against truth, else the oldest errors would be sanctified by time and rendered perpetual by persistence.

Capital punishment appears unwise, because, up to very recent times, when it was really inflicted according to law, it has cost an immense sacrifice of life, with no tendency either to protect society or diminish crime; as was rendered conclusive by the constantly increasing necessity for its action. And it is a blunder in our own time, because, in the reaction of public opinion, its possible injustice and impropriety defeat itself, rendering its application so uncertain as to afford escape for the greater portion of the guilty, and to lose all terror for criminals until they shall actually have received sentence and stand in the presence of preparations for death.

In Austria, in 1876, while 143 were found guilty of wilful murder, only 3 were executed. During ten years in England, 1857 to 1866, there were 2,885 verdicts rendered for wilful murder; but 135 were convicted, as charged, and hanged; almost as many, 108, were acquitted as insane. In England, at the November assizes, 1878, in fourteen counties, there were 16 trials for wilful murder, which resulted in 8 convictions for manslaughter, 2 were adjudged insane, 4 not guilty, 2 guilty, as charged, 1 of whom was recommended to mercy, and 1 was executed. They would all or nearly all have been hanged, in like cases, up to the middle of the last century, at which time, according to Blackstone, 160 different crimes were punishable with death.

In this country trials progress with still greater uncertainty, and the final issue is more complicated by disagreements of juries, bills of exceptions, pleas of insanity, new trials, executive pardons, commutations, etc., etc.

Further, we object to the death penalty, because it is our belief that it is never inflicted without great damage to the community, especially in the vicinity of the execution. The celebrated Father Matthew has said, “I am convinced that the infliction of capital punishment has been a fatal source of the frequent murders which disgrace and stain the land.”

A few weeks ago, in an adjoining State, a man who had lived thirty years peaceably with his wife, killed her with an axe immediately after they had together witnessed an execution. The act was directly traceable to excitement produced thereby.

Similar cases are numerously on record in this and other countries, so that it is with general truthfulness as to the situation, if not true in detail as to facts, that a writer reports a conversation between a French executioner and a curate on duty in the prison. The former was condemning his own trade from the results of his experience and observation, and the latter disposed to uphold it from its scriptural authority. ” Do you think, Holy Father,” said the executioner of the law, ” that the mob come to a hanging as to a sermon, to amend their lives at a gibbet? No, they come as they would to take an extra dram to stir their blood for an hour or two. As I am an honest executioner I have in my day done mine office, among others, on twenty, all of whom were regular attendants at my morning exhibitions.”

Aside from this, it brutalizes that element of the public mind with which it is most popular, and from which crime so largely springs – an element of idleness, intemperance, and general vicious tendency, and on which elevating instead of debasing influences are of the utmost consequence to society. Worse than that, it makes a farce of religion, and of religious hopes and consolations in man’s final hour.  ‘” More arrivals in Heaven via the Scaffold ” or equivalent titles to sensational descriptions of executions, are almost daily seen in the comparatively respectable and reputable papers from various parts of the country.

In one State, near by, we have lately heard of three persons imprisoned together and awaiting execution, with some hopes of reprieve. One, a youth of seventeen or eighteen years, amuses himself with his fiddle, and treats with contempt the manner of the others, of whom he says that they drop on their knees or assume attitudes of devotion when they hear footsteps approaching.

Late papers from a Southwestern State give accounts of disagreement between ministers of different sects, as to which of them is entitled to claim credit for fitting one, about to ascend the ladder, with suitable preparation for that final rest into which he is about to be elevated.

Another prisoner, also, whose case is reported, while we write, goes in exstacy to execution attended by his spiritual adviser. As they pass the cell of some female convicts, the latter cry out in loud lamentations. The condemned man stops and expostulates, ” Weep not for me, but weep for yourselves. Heaven opens to receive me.” When he reached the scaffold he declared himself as formerly a soldier, but now a soldier of the cross — and the trap fell beneath his feet.

In this case the feeling of vengeance and retaliation, which is always more or less present at executions, and always influences the public mind, was recognized, and the father of the woman, for whose murder the man was about to suffer, was permitted to prepare the noose in the halter. Eight thousand excited spectators were present.

In another late case a vast crowd had assembled to see three men hanged, and were very riotous when they found that but one would suffer — he, a young man of twenty-five years, who had shot, under circumstances of great atrocity, a successful rival for a vile woman’s hand. His cell for some weeks had been furnished with every comfort; many young ladies of the best families had sent or carried him flowers, and tendered sympathy. On the scaffold he bid the turbulent mob good-bye, promised to meet the ruffians in Heaven, then joined in singing: “Rock of ages, cleft for me, Let me hide myself in thee.” when, as the phraseology is, he was ” launched into eternity.”

While these transactions were in progress,– and all have occurred within a few weeks, — I note that the English executioner, who succeeds to Calcraft, who held the office until superanuated, has been in New York, and a grave international question has been discussed as to whether the English drop in the scaffold is to be preferred to the plan more general in the United States, of an instantaneous elevation of the criminal into the air for a yard or two; and what is the comparative number of failures in breaking the neck chargeable to each system.

The almost universal conversion of condemned men, prior to execution, is certainly to be hoped sincere. And in so many cases as it is sincere, it involves this anomaly: that man persists in carrying an irrevocable punishment to the extreme extent of his power in cases where God has already forgiven. And it is, perhaps, a wonder that the executive authority does not sometimes cry out, as did Balaam from the mountain, “How shall I curse whom God hath not cursed?”

This further anomaly: that the judge with ermine tippet, and the convict with hempen collar; the judge under general sentence from his Maker, and the convict under special sentence from the judge — may both lie down together in the dust, and upon their ashes in common rests the peace that passeth all understanding.

DEATH NOT KING OF TERRORS.  Further, the death penalty rests largely on the mistaken idea that death is the king of terrors, and, consequently, vastly more effectual in deterring bad men from the commission of crime than any other. Death, even when the certain condition of an act to which there is strong provocation or temptation, is not by any means a restraining power of much potency; and when that certainty is reduced tenfold or more, as it is in criminal proceedings, it so largely loses its quality, in that respect, as to forfeit all claim to consideration on that ground.

It is indicated that the fear of death is not a controlling influence  by the fact that there are, at least, 7 suicides to 1 homicide; so that to 500 suicides there are about 71 homicides. And, as in those countries, where the death penalty is depended on, not one fourth of the latter are ever brought to execution, it results that less than 18 suffer death, at the hands of the authorities, as a penalty for crime, to 500 who inflict it on themselves to escape some present mortification or distress.

The honest merchant or business man, who is overtaken with misfortune, fears loss of credit more than he fears death. Innocent maidens often flee to it, almost with alacrity, rather than meet the breath of scandal; while some who have fallen seek its dark shadows with avidity, rather than endure the publicity of shame. Poets and romancers, who do much to mold the sentiment of generations in which they live and those that follow, — Homer, Shakespeare, Byron, Scott, Cooper, Thackeray, Dickens, —  all make their heroes to  ” Count life as idle breath, When love or honor’s weighed with death.”

And the yellow-covered literature of our day, with which the prison class is so familiar, is prodigal of its contempt for the lives of men. even in criminal pursuits. Great armies of soldiers are ever ready, in any cause, to expose their lives on the most sanguinary fields for a less amount of wages than would content them in any of the usual avocations of labor.

In the serious and passionless teachings of lawyers and philosophers such sentiments as these abound. Jeremy Bentham says, ” Such is the situation of a majority of malefactors that their existence is only a melancholy combination of all kinds of wretchedness. In all such cases the dread of death has been ineffectual.” Lord Bacon quaintly remarks, ” It is worthy of the observing that there is no passion so weak but it mates and masters the fear of death. * * * Revenge triumphs over death, love slights it, honor aspireth to it, grief fleeth to it.”

RELATION OF CRIME TO INSANITY. Insanity has an important bearing on the accusation of crime in all its varieties and degrees.

We would not rank among those whose theories tend to extremes, or whose philosophy acts upon them as electricity upon pith balls, attracting or repelling them, this way or that, as they may be positively or negatively influenced. We recognize, however, that there are such states of mind, as are more or less accurately described, as suicidal mania, homicidal mania, pyromania, kleptomania, dipsomania, nymphomania and others, often so obscure in manifestation, until culminating in apparently criminal acts, that their several phenomena enter largely into the perpetration of unlawful deeds, while, at the same time, they qualify or modify the criminal nature of such conduct.

We have lately seen a synopsis of views entertained by experts and specialists eminent in France, Germany, England and America, in regard to the existence of moral insanity. We are unable to decide on which side lies the weight of authority because we can not fully master the phraseology used in the discussion. We submit some of it to this intelligent Conference rather to show the difficulties that beset our subject from this source than with the expectation that they will thereby be elucidated or removed.

They treat of ” moral disorganization independent of the intellect,” “reasoning mania,” “insanity of acts,” “lucid mania;” “cases where the intellect ought to reign and govern, but neither reigns nor governs;” “cases where the intellectual integrity is only apparent;” ” lesions of the moral faculties alone,” “monomania with consciousness,” “rudimental insanity.” One of the disputants in a spirit of compromise holds that ” many cases are in a period of transit between derangement of the moral faculties and derangement of the intellectual.” Another finds his analogy in color-blindness, etc.; “some cannot distinguish colors, some cannot distinguish notes in music, and there are some individuals born devoid of moral sense.”

Another of the learned doctors accepts moral insanity as an independent morbid form, and believes that “moral fools are born naturally framed for evil doing, and the perversion of moral sense is bound up with the bad organism.” Another claims that “if lesions of the moral faculties independently of the intellectual were possible, then we should no longer possess any means by which to distinguish insanity from perversity.” This last idea certainly brings the matter home to the administration of justice and the theme of this paper: penal and prison discipline.

The whole discussion of the subject is often beyond the capacity of judge and jury, prosecuting officers, physicians and spectators, when brought into an average case in the courts.

We object, therefore, to an application of man’s fallible judgment and imperfect powers of investigation in pronouncing and carrying into execution an irrevocable penalty, as of death. ” An irrevocable judgment requires an infallible tribunal.”

There is no certain test of insanity; no certain criterion by which its existence may be absolutely disproved when alleged with probable cause. The moral faculties may be a perfect wreck, while most of the intellectual are keenly alive and active. This is an every day observation in regard to persons of excitable temperaments, and especially if addicted to intemperance or vicious indulgences, and it not unfrequently characterizes hysteria among women. Impulse or emotion often moves, with instantaneous action, like an explosion of nitro-glycerine, while the slow reason that would interpose if time were afforded, comes lagging along after, like an engine too late for a fire.

While crime may not be insanity, as insanity is not crime, yet the two conditions border upon each other, so that the settlement of questions of justice and discipline is often deeply involved.

Between night and day we are never in doubt. There is nothing inextricable between midnight and noon, and yet, after all, there is a blending of day and night; because the shadows are so softened upon their edges and the light so mellowed as it recedes, that scarcely any two persons would strike the dividing line alike, and say at the same moment of time: This is darkness or this is light. While the cares that beset the day are folding their tents, like the Arabs, the voices of the night are already heard.

Between light and darkness, in intellect, there is a realm of shadows traversed by cross lights and spectral hallucinations in all directions; and while it is not difficult to distinguish such persons as are wholly in the dark, and therefore wholly irresponsible for irregularity of conduct, it is less easy to point out those who, without any exception, are wholly in the light, and alike, without modification; accountable for conduct that is in appearance wholly irrational. Hence the expressions: Criminal lunacy, criminally insane, insane criminals, criminal responsibility, etc., all of which are absurd.

We do not claim in this paper that crime is a disease requiring hospital treatment, but we do maintain that close analogies exist between the criminal class subject to aberrations from moral sense and moral rectitude, and the intellectually diseased class subject to aberrations from all propriety of conduct. Analogies that may prompt the inquiry as to whether the public should not deal with both in analogous ways, and from the standpoint of the public interest, alike liable to suffer in each instance; and from the standpoint of desirability of cure in the one case and reform in the other; so that the proportion of cases cured or reformed, though it be small, may be returned to society; and as to those, perhaps the great majority, in which cure in the one case and reform in the other may be found hopeless, society may find safety in their perpetual seclusion.

PUBLIC SAFETY TO BE FIRST CONSIDERED. This brings us to the main proposition we have to advance as to prison discipline, and that is, that we should deal with crime first with a view to public safety. That is the most important thing in all communities, and the dangers that threaten it are the greatest of all dangers. Next, with a view to the reform and restoration of the criminal.

Seclusion from the public ways should be the first step in all cases, wherein a man becomes dangerous to the public weal, within the limit of what are now called prison offences, and he should not be restored to society until in the best judgment that can be brought to bear he shall have been adjudged fitted to re-enter upon his social duties — in the same way that we send an insane person for his insane acts to a hospital, until in the best judgment that can be brought to bear, he is adjudged cured, and fitted to re-enter on his social duties.

As between mental disease and crime, analogies run through the whole case and impress themselves on the minds of all who consider the question, however they may incline to resist the convictions they tend to establish.

The prison congress of 1870, in Cincinnati, in putting forth a programme of principles agreed upon, says: “Punishment is suffering, moral or physical, inflicted on the criminal with a view by reformation to prevent his relapse. Crime is thus a sort of disease, of which punishment is the remedy; the efficacy of the remedy a question of the fitness and measure of the dose.”

The late Dr. E. C. Wines, says in his last great work: “A criminal is a man who has committed an offence, and deserves punishment, but he is also a man morally diseased, and needs cure;  the prison is intended to effect both those ends, the punishment and the cure, — nay, to effect the cure by the punishment.”

Dr. Despine, an eminent French physician, and philosopher in social science, says: ” The fact attested by all medical men who have made treatment of the insane a specialty, that insanity is much more frequent with criminals than with other men, is further proof that crime, and madness, and suicide have organic ties that bind them very closely together.” He describes prisoners as “psychical anomalies with intellectual faculties, incapable of serving as a counterpoise to depravity, complete or partial absence of moral faculties, moral idiots.” Such expressions are almost innumerable and are found over the names and in the writings of men of worldwide celebrity. They imply or declare a close relationship between crime and insanity, which is disease both mental and physical.

But let us refer to professionally hard legal definitions, and see what difficulties beset the court when judges not only dispose of present cases, but make precedents for future practice. Lord Erskine, with Lord Coke for his authority, in order to meet and bar a plea of insanity, says: ” To protect a man from criminal responsibility there must be a total privation of memory, and understanding.” Several other learned judges of that day agreed with him, and Lord Mansfield laid down the doctrine: ” If the accused person is in other respects capable of distinguishing right and wrong, the plea of insanity will not shelter him.”

The better informed sentiment of the present day holds those decisions as utterly at fault, and if the insane in or out of our asylums of the several States, were tested by these doctrines of law, not one in one hundred of them could be held excusable for any acts they might commit; because but few of them have suffered total privation of memory and understanding, and but few have not a sense of right and wrong, in most respects, while it is plainly apparent in regard to some that a complete knowledge of right and wrong exists collaterally and concurrently with the most uncontrollable and dangerous insanity.

Coming down almost to our own times, and to an American jurist and statesman, whose generally clear views and Christian philanthropy have commanded admiration in all countries,Edward Livingston. He says: distinguishing murder from manslaughter, in order to make out a case of the latter, so that the accused may avail himself of the mitigated punishment: “The cause (the provocation) to be adequate must be one that in men of ordinary tempers commonly produces an irritation of mind which renders them incapable of calculating the consequences of their acts.”

This is extraordinary language, and one cannot see wherein it does not define a case of insanity, at least for the time being. If a man of ordinary temper is rendered incapable of calculating the consequences of his own acts, and it does not imply insanity, but still leaves him subject to a sentence of imprisonment for a term of years: it at least establishes what we contend for here, that the analogy or close relationship between crime and mental disease, is sufficient to justify a presumption that analogy of treatment should be carefully considered.

Punishment for an act that to be a crime requires the consent of the reason, when, in fact, the reason is not present, is as illogical and absurd as to inflict punishment for suicide upon the dead body of the victim: but the impropriety of this was not recognized by our ancestors until comparatively recent date.

We have now concluded a brief survey of the question of capital punishment, and of the influence of insanity in its complications with the course of justice, whether involving the extreme penalty of the law or not.

These topics appeared to us to be first in order of consideration in this paper according to the purpose we had in view. We chose to look at penal and prison discipline in its ultimate aspects first, rather than commence with its initiatory proceedings.

THE AVERAGE COUNTY JAIL. We will now go back to a point whence we might have taken our departure at the beginning, and as briefly as possible describe the condition, office and instrumentality of the average county jail, in which prison discipline lays its foundations and from which the progresses are consequential and regular in point of law and practice to a final catastrophe, where the death penalty is in force, or to perpetual imprisonment where it is not.

In the general advance that has taken place in charitable and disciplinary institutions within the present century, the jails remain almost without improvement. But for taking time we might quote numerous authorities to show the infinite hardships and utter degradations suffered in the jails, borough prisons and Bridewells of former generations of our English race; but as they appear in their most flagrant aspects unchanged among ourselves at the present day as we shall refer to them, we hasten on with our subject.

De Tocqueville, fifty years ago, said the American jails were the worst prisons he had ever seen, and they remain for the most part substantially as he found them. By some inexplicable neglect they have in the main, though not without exceptions, escaped reform. They congregate all their promiscuous companies in one corridor to each pr;son, and that generally but an ante-room to the water closets. Amid stenches that cannot be intensified, with an imposed idleness in a moral atmosphere made shocking beyond descriptions the various counties herd together old villains and young boys; prisoners undergoing short sentences; prisoners awaiting bail, awaiting trial or transportation to the penitentiary; prisoners held as witnesses, or even for debt, with here and there a howling or wailing lunatic. Imprisoned prostitutes are sometimes in sight, and often within hearing. In this condition, throughout the republic, the jails, almost last in the field of social science, await the careful attention of such bodies as this.

The several States on this subject testify alike. Pennsylvania, through her Board of Charities, says: ” There is in many of the jails an entire absence of employment, in which cases we have observed a promiscuous intercourse of the sexes during the day, and of the untried with the convicted, no keeper remaining within the precincts of the prison. It is a gross abuse to subject the untried prisoner to intercourse with the felon.”

The Massachusetts Prison Commission, in all its recent reports, presses these considerations, and charges that its “jail system is very expensive and does not reform, but is promotative rather than repressive of crime;” and the Boston Prison Discipline Society has said: ” Acquaintances formed in jail have led many a youth to houses of ill-fame; to familiarity with names, places of abode, and principles of trade and language of counterfeiters; to the arts of pickpockets and thieves; to dangerous combinations in villainy, and to personal degradation that the most hardened prisoner has blushed to name.”

This last was said fifty-four years ago, 1826. The same year, Connecticut, New Jersey, Pennsylvania, Virginia, New Hampshire, New York and the District of Columbia, all described the  influence of their jails and promiscuous prisons in similar or in still stronger language. Later reports are in the same vein, aid show but little improvement.

The Ohio Board, in a report to Governor — now President Hayes, says of its jails: ” Ohio is today supporting, at public expense, base seminaries of crime. Children, youth, the middle aged, the old-all, at the first, simply accused of crime, many for first offences; some old offenders, debauched, cunning corrupters of men – are congregated in our jails, crowded into ill-ventilated dark prisons, where the whole being, mental, moral and physical, is soon fitted to receive all uncleanness with greediness.”

The Wisconsin Board says: ” Here all classes -the young and the old, the hardened criminal and the person guilty of his first offence; the un-convicted and the man serving out his first sentence; the man simply suspected, the witness accused of no crime whatever — are huddled together with no occupation for either body or mind. Will the depraved be raised to the level of the comparatively innocent, or will not the aggregate knowledge of wickedness and evil practices become the individual possession of each, and will not the most abandoned leave the jail in a worse condition than when he entered it?”

Illinois, through the accomplished secretary of its Board of Charities, says: ” The sane are not separated from the insane, the guilty from the innocent, the suspected from the convicted; hardened criminals and children are thrown together; the sexes are not always separated from each other-making the county prison a school of vice, creating an atmosphere where purity itself could not escape contamination.”

New York, through its committee on prisons, at a constitutional convention in 1867, says: “There is no source of crime more operative in the multiplication of thieves and burglars than the common jails as now organized.” New Jersey, through a legislative committee in 1879, says: ” For the mass of misfortune and crime in our prison, we have a set of feeders constantly at work, twenty-one county jails, nearly every one of which is a festering moral ulcer, a hot-bed of crime.”

Of the general subject Miss Dix says, ” If it were the deliberate purpose to establish criminals in all that is evil, and to root out the last remains of virtuous inclination, this purpose could not be more effectually accomplished than by incarceration in county jails as they are, with few exceptions, constituted and governed.” Another forcible writer, formulating the tendency of this agency for crime, says: “If you bring two evil-disposed persons together, especially those whose presence in prison points out crime as a prominent feature of their lives, this criminality will have increased after the contact; because they, as well as all other men, good or bad, will propel each other in that line which is characteristically their own. It is this baneful effect of intercourse that is in penology called contamination.”

In our examination of this subject, such citations as we have made, multiply on every hand. Our own personal observation among jails has been considerable, and it fully bears out all and more than has been quoted. We pause only to notice one single experience during the last year.

In one of the most beautiful of the interior cities of Michigan, and within bow-shot of a magnificent union district school building, costing $120,000, of which the town was justly proud; and while the sidewalks in all the vicinity were crowded with youths and maidens innocent and mirthful returning from their recitations, we entered the walls of the county jail, where we witnessed this impressive tableau, in contrast to that outside, to which we have referred, and under the auspices of the same otherwise enlightened community. A block of cells was constructed in two rows, facing in opposite directions; one set for men, the other for women. A corridor encircled the whole and was divided near the door by an open iron lattice partition which prevented the men and women from entering each others divisions, but in no way obstructed their sitting together in a group. Indeed, the stove intended to warm both apartments was placed next the open screen.

On the female side there were three women. One apparently twenty-five years old, an invalid, diseased in her vocation, was reclining on a pallet spread on the floor at that place to afford her the enjoyment of society; by her side, also seated on the floor, was a young prostitute of fourteen or fifteen years, full of vivacity, profane and obscene; elevated on a small table sat a woman of thirty-five years, grave and demure in appearance, who was under arrest for adultery. On the other side, to complete the group, there were five or six men, some old, some young, including the man who was under arrest for adultery with the woman referred to. There was also among them a boy twelve or fourteen years old. Thus, substantially together, these people spent the long hours of the day; the keeper visiting them only at stated times to carry them food, and to lock them up in separate cells at 8 o’clock in the evening.

We have now, in presenting the topic of this paper, had a view of the first steps our country takes in prison discipline, appropriate to a system that ends with the scaffold at its other extreme. These are the primary prison schools in which we give our criminal population every educational facility which an unwise public can furnish, or, according to New Jersey, the hotbeds in which we force the development of crime.

In Michigan, subject to this preliminary course, we have in jails in the course of the year about 10,000 persons; of these less than 15 per cent., or less than 1,500 in all, are finally convicted of prison offences.

In the State of New York, about 80,000 annually go through the same process with about the same proportion of convictions; eighty-five in each one hundred are either acquitted, and therefore presumably innocent, after having suffered alike with the others, the horrors of such confinement as we have described; or else, if found guilty of some minor offence, they go back after conviction to the same jail to serve out a brief sentence, involving this anomaly that they undergo the same punishment before as after conviction, and often for a much longer period.

THE STATE HAS NO RIGHT TO CONTAMINATE. The question arises: Has the commonwealth a right to deal thus with any portion of its people? However that may be, does it not imply bad statesmanship, requiring reform which, if necessarily slow, should at least be put in motion and tend upward from the present low level that has been established?

The State has a right to punish after conviction, but has no right to contaminate, either before or after. May not the un-convicted prisoner at least claim protection from such contamination? May he not claim protection from the criminal contagion to which the jail system subjects him?

Accused persons are in fact held by the State but as hostages for justice. The State has no right to impair the security, no right to take an innocent man and subject him to such damage, that after having failed to make out a case against him, it returns him to society a worse man, ten fold worse, actually, than he would have appeared when arrested if simply guilty of the charges against him

We shall not have time to discuss fully in this paper the reformation of the jails. As the case stands, we would reform them altogether out of existence by substituting houses of detention for witnesses, persons awaiting bail, and for the untried and un-convicted. For the convicted, such as shall not be immediately sent to the penitentiaries and houses of correction, we would establish district prisons, each representing a sufficient number of counties to enable the authorities to provide facilities for labor to replace with its reformatory and educational influences, the demoralizing tendencies of imposed idleness that now almost universally obtain.

As toward those who are held as witnesses and those simply accused of crime, there are, beside all the other abominations of the jails, outrages upon the very essence of justice; and whatever outrages justice is a cause of crime, indeed is itself a crime as well as blunder.

Men held as witnesses or suspected of crime, are so held ostensibly for the public interest; that is, they are deprived of liberty, subjected to the vilest indignities and humiliations for the good of the public, separated from their dearest possessions, those for which men will make the greatest sacrifices, and without compensation or indemnity.

If the State requires a man’s property for the public necessity, it cannot take it except by legal processes, most carefully guarded at all points in the interest of the owner. And ultimately compensation must be made such as in the opinion of the man’s neighbors, who may be exposed to like situations, he is entitled to.

Thus property is protected; but as to liberty, a man may be accused by his fellows or by circumstances, and though presumably innocent, he is taken from family and friends; all his relationship to society disturbed or destroyed, his credit ruined, and property thereby lost, and no indemnity is promised, no damage paid.

Why should not one, being innocent, who thus suffers in jail for equal laws and the good of his country, under such forcible debasement, that the very vermin of his cell are less loathsome than his human associates, be entitled to at least something like the limited indemnity that a soldier receives, who is held under authority for the public good in the field of military operations, comfortably provided, and with honorable, instead of despicable possibilities before him.

Fortunately, except in large cities, men are not numerously held in jail as witnesses; there are, however, hundreds of cases, and often while the alleged perpetrators of the crime are out on bail, with chances at least even that they will not be convicted; involving this anomaly, that it is often less dangerous to commit a crime than to see a crime committed.

This view of the case creates questions beset with difficulties, but no less demands the attention of Conferences of correction, and even of charity.

STATE PRISONS.  We come now to a view of our State prisons and larger houses of correction, to which men are sentenced for what are termed State prison offences, and as preparatory to which they have all had a preliminary course of treatment in such jails as we have described.

In regard to the State prison and the State house of correction (the latter sometimes another name for the same class of institutions), we take pleasure in testifying to a great progress of improvement in this and in almost all the European countries. The systematizing of labor, better classification of inmates, cleanliness of persons and apartments, wholesomeness and abundance of diet, abolition of prison tortures and strictly penal labor, education in secular and religious knowledge,-in all these respects the public is to be congratulated upon an advancing reform.

There are still many questions at issue as to such part of prison discipline as is independent of the sentence of the court, and devolves upon the prison administration. It is not our design to treat of them. There are men present, or connected with this Association, who have achieved reputation in hand to hand acquaintance with these topics, and whose wisdom has been gained by experience, who can better instruct the Conference.

INEQUALITY OF SENTENCES.  Having still in view our analogy between crime and mental disease, which analogy we do not claim to be one that is perfect and holding at all points, yet holding sufficiently to justify what we have said and what we shall say, we shall conclude this paper by a few moments’ commentary upon the sentences of the courts.

One of the ablest and oldest judges in Michigan, one who is a writer of standard authority, and of thirty years’ experience on the bench in the trial of criminals, said to us recently: ” I have long since ceased to form for myself any conception or idea whatever of the moral status of any prisoner whom I may have before me.”

This was significant language, and is widely suggestive, from one who has, from early manhood to advanced age, occupied a judgment seat. For several years before the death penalty was abolished, and for a quarter of a century since, he has been sentencing men for moral delinquency, involving all penalties from the least to the greatest known to the law; and yet without the slightest idea of the moral quality of the men complained of. It is probable that no one more than he feels the imperfection of the administration of the laws.

The wide range of discretion given to judges in the imposition of sentence, is based entirely upon an expectation that they can form an idea of the moral status of a prisoner in the light of all the evidence that is brought to bear on his case in the courts; yet the frank avowal of the venerable magistrate referred to, of his inability to meet that expectation, raises with us the presumption that the same disability rests upon all the criminal courts. The more profoundly one reflects upon the remark quoted from the judge, the greater appears the probability of its general application.

Thus we have that universally-complained-of inequality of sentences, which so disfigures and obstructs the administration of justice. Courts cannot search the conscience, and virtue and vices are rendered vague sometimes by circumstances; the intention that qualifies the crime cannot always be clearly made out.

It is impossible accurately to scale punishment and adjust penalties where the range of crime is from the slightest infringement upon another’s rights to the most atrocious offence known to the law, and the whole modified, or qualified, by numerous questions of accident, age, education, hereditary tendency, malice, provocation and insanity, in all its obscure developments and relationships.

It has been authoritatively said that “intent is the gist of crime; the degree of guilt and extent of punishment depends on intention;” yet, in some countries, the dignity of the person offended is taken into consideration; and in this country, until recently, the lack of dignity in the offender,-severer penalties being provided for slaves than for freemen. In these cases intention loses, in great measure, its qualifying application, and as a measure of damage done to society it is vague in the extreme.

This anomaly is frequent in the courts: A man influenced by passion assaults and kills his fellow with a deadly weapon. He is very likely, especially where capital punishment obtains, to be found guilty of manslaughter, for which the maximum punishment is fifteen years, and the usual sentence is for three or less. Another man, under the same circumstances moved by passion, assaults in the same way, with intent to kill, but handling his weapon less skilfully than the other, he misses the vital organs, and the wounded victim recovers.For this crime the penalty is greater, and is for life, or any number of years, in the discretion of the judge, thus rendering it probable that, if in the first case the aim of the assassin had not been good, his crime would have been increased, and his term of punishment prolonged perhaps to a life sentence, in consequence of his failure to complete the murder.  Hitting a vital organ he gets three years–missing it he goes for life.

We can stay but for a single example of the inequality of sentences growing out of qualifying circumstances, and the inability of judges to see things alike, or, as in the case of the one referred to, form opinions even for themselves.

Assault with intent to commit murder, intention being the gauge of crime, necessarily implies the guilt of murder.

In Michigan, during the year ending September 30, 1877, there were eight convicts sentenced to the State prison for assault with intent to commit murder,– one for 45 years, one for 25 years, one for 15 years, one for 9 years, one for 6 years, one for 5 years, one for 2 years and one for one year.

It is supposable that these eight men, so sentenced for the same technical offence, may have been seen in prison working in the same department, eating at the same table, listening to the same prayers in the chapel; with occasional opportunities for surreptitious exchange of notes as to their respective allotments of justice and their progress in reformation,-reformation being agreed upon in all such Conferences as this as one of the chief ends, if not the chief end, of punishment.

This inequality of sentences runs through all the courts. Cases like this (an actual case) occur somewhere in the United States every month in the year: At the same term of the court a bank teller, for a theft of $500 from his employers or from a customer, is released on nominal or suspended sentence, while a boy of 17 years is sentenced to prison for three years for stealing a secondhand suit of clothes worth less than $20; producing in appearance distortions of justice, a little like Lord Dundreary’s distortion of proverbs when he says: “one man is hanged for looking a gift horse in the mouth, while another may see the whole animal over a hedge and get clear.”

The damage to society of a given offence can be approximately estimated; the guilt of the transaction is beyond man’s power of measurement.

Then why not better cut the Gordian -knot and proceed for the good of society:-estimate the offence according to its damage and danger to society, and at once remove the offender, not for one, two, ten or forty-five years, but until he is apparently restored to such condition, whether mental or moral, or both, as will give the public reasonable assurance of safety?

If there were high courts or commissions in lunacy, and they were to commit eight maniacs who had attempted murder, from one State in a single year to an insane hospital, for terms varying from one to forty-five years, it would at once be apparent to all that the high court itself was wildly insane. If, on the contrary, the would-be murderers were sent to a hospital until wholly restored to reason, the conduct would appear to be sensible.

But if criminals are put under restraint by a similar seclusion in buildings suitable for the purpose, that is, in prisons properly provided and guarded, it may be asked: How shall it be ascertained with certainty when they are so far reformed as to make their enlargement safe to society?

The answer is, that we cannot know with certainty, but it can be known at least equally well in this case as in the cases of insanty. Some insane patients are discharged apparently cured, three, five or ten times, but are found still dangerous to society and have to be returned to the hospitals, and ultimately die without recovery. There will be mistakes, incident to imperfect human knowledge.

Criminals sentenced for limited terms are discharged and re-committed over and over again, with this difference, against the good sense of the proceeding, that there is in the majority of cases no appearance of reformation, but, on the contrary, perfect knowledge on the part of the authorities that are turned out more and more dangerous to society at each successive time.

COMPARATIVE NUMBERS IN PRISONS AND INSANE HOSPITALS.  There is this further similarity between the two classes that we have not seen noticed. The number of patients in the insane hospitals, and prisoners in the penitentiaries of the United States, is somewhere nearly equal, and we have been at considerable pains to ascertain the percentage of apparent recoveries in the one case, and apparent reformations in the other, and find that the probabilities are nearly alike, and do not exceed fifteen per cent. This includes the recent and the chronic cases in disease, and the recent and chronic cases in crime.

Taking them all in all, if at large and unrestrained, they would be about equally dangerous to the community; yet we systematically discharge upon the public the one class as it gets worse and worse, while we sensibly detain the other until seemingly rendered safe by recovery.

CONCLUSION. We have endeavored to economize time and space in the preparation of this paper; have crowded into it as many considerations worthy the attention of this body as we could make room for; but the subject opens and extends before us with such wealth of material that we find it impossible to conclude the discussion.

With little more, then, than statement and suggestion, we leave it to wiser men and to the Conference.

Ours is an age of innovation; it is not long since personal liberty was secured, not long since judges were independent, not long since torture and religious persecutions were abolished.

Overlooked for centuries, and abandoned to the hangman or to slavery, the case of the prisoner is at last coming under the consideration of philanthropy and science. Conferences of correction associate in name with Conferences of charity, and deliberate in the same hall.

Governors of States and ministers of religion sit together; public spirited men and earnest women, now that penitentiary science is 100 years old, are beginning to study crime in the person of the perpetrator, and in the interests of society.

Source: PROCEEDINGS OF THE SEVENTH ANNUAL CONFERENCE OF CHARITIES AND CORRECTION: 1880.  pp. 37-59,  Collection: National Conference on Social Welfare.