The Treatment of The Criminal

By F. H. Wines, LL. D., Chairman of Committee on Treatment of Criminals

Ed. Note: In the history of the criminal justice system of the United States there is considerable evidence that social welfare reformers and progressives helped improve the conditions of local jails, reformatories and prisons and the treatment of prisoners. For example, presentations and reports of standing committees at the annual meetings of the National Conference of Charities and Correction during the late 19th century reveal that social welfare leaders and progressives were actively involved in efforts to reform the nation’s criminal justice system.  It was at these annual meetings where leaders of state boards and experts in penology gave presentations and reports describing conditions in prisons and jails and offering proposals for improving them.

The founding fathers of the National Conference of Charities and Correction (1874 – 1898) were governor-appointed secretaries or executives of a State Board of Charities, and therefor responsible for oversight and reporting on the conditions of public institutions, including prisons. As a result, conditions of state and local correctional facilities and the treatment of both juvenile and adult felons were among some of the most important topics presented at the early meetings of the National Conference.  The presentation below from the 1904 Conference is an excellent example.

Ed. Note (2):  Frederick Howard Wines was the son of Enoch C. Wines (1806-1879), who, as secretary of the New York Prison Association, wrote two of the earliest American books on prisons and reformatories.  In 1869, his son, Frederick, was appointed as the first secretary of the Illinois Board of Public Charities.  His service in that position enabled him to become one of the Founding Fathers of the National Conference of Charities and Corrections and its tenth president in 1883.  Wines also served as secretary of the National Prison Association from 1887 to 1889. The slightly edited report presented here is from the thirty-first annual meeting of the National Conference of Charities and Correction, and it is significant that it was also the thirty-first year during which time Frederick H. Wines was a participant, frequent presenter and sometime office holder.

The subject assigned to this committee is the treatment of the criminal, a subordinate phase of the larger problem of the treatment of crime. The criminal is the concrete embodiment of the abstract conception of crime. Crime is an act, while the criminal is the agent of the act; but there can be no act without an actor, and it is through the criminal that the law strikes at crime, which it is the aim of the law to prevent or to suppress, caring little for the criminal actor, but much for the victim of his deed.

The history of the effort to suppress crime is a great transformation scene, painted on an immense canvass, and representing changes in human thought, and in the attitude of society to crime and the criminal, as slow as the Greek drama -the reproduction in art of the majestic movement of fate. The evolution of civilization has been the record of a struggle between two antithetical elements or principles in human nature, of which one is destructive, the other constructive. The trend of progress has been from tyranny to freedom, from war to peace, from superstition to science, from brutal disregard for the rights of individuals to tenderness in dealing with the helpless and even with the ill-deserving.

Thus, in dealing with crime, as the average level of intelligence has slowly risen, reminding one of the subsidence of the vast sea of ignorance and prejudice in the world and the gradual emergence of continents destined to be the theatre of new forms and modes of life, the primitive barbarisms incidental to despotic rule have one by one disappeared, beginning with the wanton murder of prisoners and captives, and including torture as a means of eliciting confession or denunciation, as well as slavery, which we trust may be followed by the gradual disuse of war, the gallows, and possibly (at some remote period) of the prison as well. Yet we must remember that, although Justice may sheathe her sword, she must forever wear it at her side; the Right can not disarm, while Wrong stalks abroad bearing and wielding weapons.

Criminal actions are those which are declared to be such in the statutes. The law creates the offenses which it punishes. It does punish them. A law without a sanction is inoperative and practically void Some of these actions are attacks upon social security, upon life, upon property, upon person; the fatal outgrowth of three primal instincts – anger, avarice and lust. Others are violations of social order, of police regulations; and such are of comparatively trivial consequence. Nevertheless, they are punished. A penalty of some sort attaches to every one of them.

Why does the law punish crime? The first crude answer to this question is, “Because it deserves to be punished.” There is a sense, undoubtedly, in which this is true. Crime is an antisocial act. As such it is subject to the universal law of nature, which declares that action and reaction are equal and contrary. The reaction against crime which assumes, in extreme cases and under certain social conditions, the form of lynch law or mob violence can not be said to be unnatural. The spectacle of outrageous and brutal crime inevitably awakens a sentiment of horror and repulsion, which must and does find vent in action, either by legal or illegal methods. If the law fails to give expression to this popular sentiment, the public takes the law into its own hands. But the essentially immoral character which attaches to crime, and which leads many persons to confound sin, which is the violation of the divine law, with crime, which is the contravention of a purely human code more or less perfectly embodying true ethical conceptions, is not a safe or sound basis upon which to construct a criminal code, as the experience of many centuries has proved. For the maintenance of social order it becomes necessary to prescribe penalties for acts which are not essentially immoral, and there are acts grossly immoral or irreligious, with which it does not fall within the scope of human legislation to deal. Besides, no human tribunal can accurately measure the moral delinquency of any criminal at the bar of justice. Too many uncertain elements enter into the problem, such as the criminal’s heredity and previous environment; his education, training and associations; his temperament, his temptations, his opportunities, his secret motives, and the like. Without at all denying the existence of a principle of abstract justice, which in the order of nature insures the return of every deed upon the doer (the principle of nemesis, the theme of every tragedy in art), and without extenuating or excusing the wrong done by the criminal to his victim, or transferring to him the sympathy which belongs to that victim and is his due, nevertheless it must forever remain true that the limited range of our vision and the frailty of our nature forbid our taking into our hands the administration of justice, abstractly considered, and usurping a function which the great judge of the quick and the dead reserves to himself in the words, “Vengeance is mine, I will repay, saith the Lord.” The usurpation of a divine attribute and prerogative has been the occasion of a large part of the bloody deeds with which the pages of history have been stained, from the earliest times to the present age.

A second group of criminologists would insist that crime must be punished as an example, for the sake of the deterrent effect upon others of the suffering endured by the convicted malefactor. Since reference has been made to the language of St. Paul, who was learned in the law, that other saying of his may here be quoted: “He (the ruler) is the minister of God to thee for good. But if thou do evil, be afraid; for he beareth not the sword in vain; for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” Yet the popular imagination, uninstructed by actual contact with the criminal class, grossly overestimates the deterrent influence of legal punishment. The criminal, the typical and habitual criminal, is abnormal; a creature of appetite and passion, deficient in moral perception, foresight, and the power of ratiocination. Motives which appeal to normally constituted men have not equal influence over his conduct, especially at the moment when his criminal impulses are in a state of preternatural excitement and comparable to those of a lunatic. He is blind to the consequences of his act, deaf to the warning voice of reason and conscience, willing to take the risk, and confident that he will escape conviction, or that the penalty imposed will be light, or that he may be able in the last resort to gain a pardon.

The members of a third group hold that the sole rational purpose of the criminal law is social self-protection as a natural right and a governmental duty. Such protection is accomplished in one of two ways: by his elimination, through death, banishment or imprisonment; or by his recovery and rehabilitation. Whatever measure of deterrent influence the law exerts is also an incidental means of protection. In theory the extirpation of the law-breaker by decapitation or otherwise is recommended not merely by the effectiveness of this drastic remedy so far as relates to himself and the apprehension of further injury at his hands, but because it prevents the possibility of his perpetuating his line. It was once the only remedy known or practiced. But, as the growth of the humane sentiment, reinforced by considerations of self-interest, led to the substitution of slavery for the slaughter of prisoners taken in war, so for wholesale execution of political and other offenders the custom of deportation grew up, though it never became general. During this earlier period of criminal legislation, incarceration was not a form of punishment. The prison was a place of detention and of torture; and the possession and the right to make use of it as such was a royal prerogative, shared by the aristocracy and by some of the higher ecclesiastical dignitaries.

The experience of mankind has taught the wise, however, that the efficacy of punishment is in inverse proportion to its severity; that cruelty to prisoners reacts disastrously upon society, by its tendency to brutalize those who tolerate it, to engender or foster a spirit of violence which begets violence, and to render the infliction of the prescribed penalty uncertain because abhorrent to natural feeling. There is a limit to the extent to which social self-protection may be safely carried. Any and every motive to conduct is nobler than that of fear; and the beheadings which occurred in the Tower of London, the oubliettes of medieval prisons, and many similar infamies were supposed at the time to be justified by the plea of self-defense against treason and other high crimes.

Of all forms of punishment incarceration in a modern prison, properly conducted, is least liable to abuse; yet even that may be unjustly inflicted or disproportionately prolonged. It disables its subject from continuing his criminal career while it lasts, but it does not prevent him from returning to it when discharged. It has in itself no reformatory influence. On the contrary, where prisoners associate in idleness, as they do in most county jails, it is demoralizing and corrupting. The only positive and sure means of protection, apart from the death or lifelong imprisonment, is the reformation of the offender.

We do not place this above protection as if it were the sole or the supreme end of the prison. It is an end, however, to be kept constantly in view, whether attained or attainable in all cases or not, just as the physician seeks to save his patient in spite of the incurable nature of his malady and, failing that, to alleviate his suffering and prolong his life. It is the only end of imprisonment in which the prisoner has a personal interest, however stubbornly he may resist the efforts made for its accomplishment; and to deprive him of the chance of recovery under appropriate treatment suited to his individual case, is to deprive him of a natural right, like the right to life and death; as if a hospital were to open its doors to patients and yet lack every facility for healing the sick, including physicians, nurses, instruments, drugs, diet, and even proper sanitary conveniences. The ideal prison, is a moral infirmary.

The reformatory process now demands attention, omitting all discussion of the treat

ent of the prisoner before and after his incarceration, and of the construction, government and discipline of prisoners, except as these topics may be related to the main question before us. Reformation is a process, applicable to those who need it for their own good as well as for the well-being of society; and it must be adapted to their nature and condition.

What then is the criminal? A man as are other men? Yes, but so is the lunatic. In his position, with his antecedents and temptations, we might also have been as he is; yes, but we might also have been born idiots, or have been overtaken by insanity. He claims our sympathy and help; yes, but we must not allow pity for him to degenerate into toleration of his criminal character and conduct.

It is impossible to frame a description of the criminal as he is known to those who have him in charge and are compelled to associate with him, which will not resemble a composite photograph rather than a portrait of any individual. It is often alleged that crime is hereditary; and the criminal class is supposed to form a distinct typical group of the population, the product of heredity and environment (as we all are), but chiefly of a vicious heredity. But what is heredity? and how does it operate? Disease is rarely, if ever, hereditary; what is inherited is a diathesis or tendency, dependent upon the inherent weakness or malformation of this or that bodily organ. The same is true of crime. Heredity is not the simple thing that some, without due reflection, consider it to be. It is the most complex fact of existence. The ancestral line divides at every ascending generation, so that we have only to go back five or six hundred years, if we could trace our ancestry in all lines, male or female, to” find ourselves the possessors of more than a million possible ancestors. Each of us is the embodiment of many million times a million distinct and conflicting heredities, and it is our environment which mainly determines our career in life, according as it favors or hinders this or that element in the mixed blood which courses through all our veins, that of the criminal no more and no less than in those of the rest of us.

Generally speaking, however, the criminal is, as has been said, more or less abnormal in his physical, mental or moral constitution. His constitution may or may not be assimilated to that of one or both his immediate parents. It may be like that of some more remote progenitor. He may come from any family, in any walk or station of life. He may have been tenderly nurtured and carefully guarded in his early years, but may have broken away from parental restraint; or he may have had a bad home, or no home at all. He may have been injured by excessive restraint, spoiled by over-indulgence, or ruined by neglect.  By the time that he enters the prison decay and degeneracy have marked him for their prey, if they have not already made deep and ineffaceable traces upon his form and features. Physically he is apt to be diseased, and a fit subject for medical surveillance, not necessarily or probably in the hospital, but along the line of sanitary supervision. A large percentage of prisoners are flabby, with dreaded sensibilities and slight muscular energy. Their labor is not worth to a prison contractor what he would pay for the same time, at the same work-bench, to an ordinarily healthy man. Many of them are the victims of vices which they have practiced from puberty, if not from infancy. Mentally, too, they are deficient. They are, as a class, ignorant, uneducated, untrained, without economic sense or industrial capacity, despite the occasional and brilliant exceptions to this general characterization. Some of them are true imbeciles, and many are intellectually far below par. It is, however, in their moral sentiments, tastes and habits of thought and action that they most clearly show the ravages of the criminal virus. When a man has said to evil, “Be thou my good,” he soon ceases to discern good from evil and becomes morally color-blind, if indeed he did not lack moral sensibility from his birth, as some men do. If ethical questions have any attractions for him, it is merely that he may exercise upon them, as a dialectician, his gifts of casuistry. He is largely devoid of natural affection, indifferent to the blows of fate, instinctively and often unconsciously at war with the social order; a man with false perceptions, perverted impulses, vicious predispositions; egotistic, reckless, crooked by nature and by habit.

Such is the man with whom we have to labor for his upbuilding into the semblance at least of honesty. Our task is to convert a social parasite into a producer, a social outlaw into a good citizen, a fool into a man of average common sense. It is necessary to begin with the body, with the repair of wasted tissues, the restoration of normal nervous tone and muscular activity. This is the task of the prison physician, who calls into use all the resources of a sound physical hygiene. We do not -stop there. The prisoner must be developed intellectually, commencing in the case of the illiterate, with the alphabet; but

every prisoner has the same right to mental as to physical sustenance, according to the degree of his previous culture and attainments. It is as important to have upon the prison pay-roll an instructor as it is to have a physician —more than one instructor, indeed; for above all the average convict needs industrial training, both for the sake of its immediate reflex influence upon himself and in order to qualify him to earn an honest livelihood after his release. He also requires elementary instruction in the law, at least in the theory and functions of government and his relations to it, and in simple ethics. How far his moral and religious training can be properly carried by the state is a more difficult question. The state has certainly no right to force his convictions on matters strictly within the scope of the personal relations between himself and his Maker. On the other hand, it is his right to worship according to the forms of his hereditary faith, Protestant, Catholic or Jewish, and provision should be made for such worship. It is also to be said, that the religious nature is the deepest element in his mental and spiritual constitution. It furnishes the surest motive and inducement to right living. It demands cultivation, since, unless touched here, his spiritual regeneration is impossible, and without conversion at the centre of all life’s activities, his reformation valuable and permanent as are the results obtained by physical and intellectual culture – is after all external, superficial, and more apparent than real. It has been well said, by one of the best and wisest of American wardens, that the prison physician and the prison chaplain are the warden’s strong right and left arm. The chaplain if capable, discreet and devoted and if he is properly respected and supported, is second to no other officer in the salutary influence he can and does exert not only on the man, but on the discipline, morale and atmosphere of the entire establishment.

This process is, from beginning to end, an educational process, and a well conducted prison is as truly an educational institution, of a special sort, as is an university or a college. It is in most cases a tedious process, far more difficult than the original training of young men who have nothing to unlearn, no false notions to be eradicated, no evil habits to correct; who are eager and willing, where the ordinary prisoner is reluctant, so that compulsion must be applied to overcome his native and acquired inertia. It consists essentially in furnishing to its subject a new ideal, a new standard of life, persuading him to accept it, and convincing him that it is practicable for him as well as in itself desirable. Its aim is to develop in him the power of self-control and self-direction, which he never had, or else has lost by self-indulgence and disuse.

It needs no argument to make it evident that this is a noble and worthy conception of the true function of the prison. If it could be realized in practice, it would transform the life of the state or nation. Why can it not be?

Because, in the first place, it has not yet taken possession of the state or nation. It is not in the minds of our judges, our legislators, our governors, our politicians, our people. The press has not grasped it, nor the pulpit. Even our prison officials apprehend it but dimly, and are greatly hampered in its application to existing conditions.

If a warden, without knowledge of criminals from previous experience with them, who owes his appointment to political favor and is primarily expected to make his administration of his office minister to the success of his party, or of a faction within his party, who is not himself an exemplification of the character which it should be his aim to develop in his prisoners, who has not their reformation at heart – or, worse still, is a disbeliever in its possibility under any system -and, finally, who has neither skill nor capacity as the head of an educational establishment: if such a man should be given this great work to do, who could reasonably expect the best results? Or if, although qualified and earnest, he is denied the freedom of action entrusted to the physician in charge of a hospital, with respect to the selection and discharge of his subordinates and the institution of methods adapted to the accomplishment of the task committed to him, who must be held responsible for his failures?

Much failure there must be, under any system, whoever may administer it; the material to be handled is so refractory, so insusceptible to moral therapy. But the percentage of cures already obtained, under a reformatory prison system, imperfectly -organized and still in the experimental stage, warrants its retention and extension.

Another difficulty in the way of complete success is the initial treatment of the criminal, when first arrested and convicted. All are agreed that the success of philanthropic work depends on the thoroughness and wisdom with which we attack poverty, ignorance, idleness and vice in the young; that our main strength must be exerted by way of prevention, rather than cure. The same rule applies in correctional work also. The prison is a criminological fad; it is grossly abused-a sort of favorite prescription, when we do not know what else to do. Too many men are sent to prison, and so ruined in reputation, in self-respect, and their restoration thus rendered hopeless, who would or might have recovered, had they been left at large under proper surveillance, in constructive but not actual custody of the law. The probation system, with its admirable adjunct, the juvenile court, will, we trust, in time change all that. Then the first sentence imposed is apt to be nominal, and it is served in a municipal or county prison. We all know what that means. If municipal and county prisons can not be reformed, they ought to be abolished. They are crime breeders and public nuisances, more harmful and hateful than any with which our boards of health have to deal. The stench emitted from them is a moral stench. In many cases, by the time that the prisoner reaches the reformatory, his cure is improbable, if not hopeless. Every prison, and most of all a prison for novices in crime, should be a reformatory prison; all others, except those for incorrigibles, should be destroyed.

Finally, the reformatory process requires time: time for inflammatory action to abate, time for old wounds and sores to heal, time for healthy tissue to grow, time in which the prisoner may recuperate his energies, in which new and better resolutions may germinate, blossom and bear fruit, and in which the genuineness of any seeming alteration in his character may be tested and confirmed.

That definite sentences, especially short-term sentences, do not afford the required time for the application of the reformatory process, or, if they do, that they do not admit of the prisoner’s conditional liberation, when it seems to have accomplished its purpose, is the supreme condemnation of the majority of the existing codes of Christendom and of the civilized world. All of the old codes are on a false ethical and legal foundation. They are based on the principle of retribution. They are in attempt to make the punishment fit the crime, in other words, to measure guilt on the one hand and suffering on the other, and strike an equitable balance, between the two. It cannot be done. All of them have proved abortive in practice. The code-maker began by trying his ‘prentice-hand at the job, and gave it up. For fixed penalties, the legislatures substituted variable penalties,. with maximum and minimum terms, and later with maximum terms and no minimum; thus devolving upon the courts the responsibility of solving problems which the code-makers have abandoned as confessedly transcending their capacity. The courts have done little better. The administration of the criminal law is a brilliant illustration of the unequal distribution of injustice. Compare the codes of the several states. Except where they have copied from each other, the crimes listed are not the same, the definitions of crimes and the distinctions made between them differ widely, and there is a woful lack of correspondence between the penalties prescribed for them. Then examine the prison register, and compare the penalties imposed, in different states, or by different courts in the same state, or by the same court on different days. The record is one of ridiculous inequity.

The fault is not in the courts, nor in the judges. It is in the system, which imposes upon them a duty to which human intelligence is inadequate. The time has arrived, at least, in this country, to cease from the impossible attempt to make the punishment fit the crime, and try instead the plan of adjusting our treatment of the criminal to the man, in the spirit of love and a sound mind, remembering that his interest and that of the community are identical, or certainly not in opposition, and that neither should be sacrificed to the other.

There is but one method by which this reform in criminal procedure and in prison discipline can be brought about, namely, by the substitution of indeterminate for definite sentences. The theory of the indeterminate sentence is that it offers to the criminal the choice between reformation and incapacitation. The dangerous criminal, like the dangerous lunatic, if not rendered harmless by curative treatment, is to be permanently detained, which is as lawful and as necessary in the one instance as in the other. If there is any difference between the two cases, it is in favor of the former, since criminality involves censure, while disease is simply a misfortune. But the safety of society is to be considered, rather than the preference of either for his natural liberty. The reformed criminal is to be set at large, whenever it becomes clear to the experts who have him in custody that it is safe, for himself and for the community, to liberate him. The knowledge, on the criminal’s part, that this is the alternative presented to him will have the effect, if he is sane and retains control of his faculties, to induce him to co-operate, by the exercise of his will, in the effort made for his reformation. The crookedness of his nature may lead him to attempt to deceive his keepers by pretended and diligent observance of the rules in force; but it is presumed that, if they are skilled in the knowledge of the criminal character, they will not be often deceived. If they are, they are not fit for the positions which they occupy. But in order to guard against this possibility, his sincerity is subjected, while still in the prison, to the test of the graded system, with marks; he is not released, unless his immediate future is provided for, by employment or otherwise; and, after his release, he is still on parole, liable to re-arrest if the conditions of his parole are violated. He is thus tested outside of the walls of his cell-house, as a lunatic, of whose complete restoration there is. some lingering doubt, may be sent to his home on trial, before striking his name from the list of hospital patients.

Most of the objections to the indeterminate sentence, of which many were urged prior to experimental proof of its practicability and efficacy, have been withdrawn, or refuted by the trial thus far made of it. The criminal code is nevertheless passing through a period of transition from the old to the new, which is marked by many fears and much confusion of thought. Nowhere has the indeterminate sentence been adopted in its entirety. When pushed to a logical conclusion, its theory involves the assimilation of all penalties, for misdemeanors as well as for felonious offences; the abolition of maximum as well as minimum penalties, and the conversion of prisons of every grade into reformatories, retaining, of course, for obvious reasons of convenience and propriety, the classification of prisons as well as of prisoners. Under no circumstances should there be a common place of detention for the accused, still awaiting trial, and for the convicted, under sentence. The system in every state should have a single administrative head, and it should be controlled and administered by state and not by local officials. It should be wholly and forever divorced from practical politics.

Source: Proceedings Of The National Conference Of Charities And Correction At The Thirty-First Annual Session Held In The City Of Portland, Maine, June 15-22, 1904. pp. 422-434.

How to Cite this Article (APA Format): Wines, F.H. (1904). The treatment of the criminal. Presentation at the National Conference Of Charities And Correction, Portland, ME. Retrieved [date accessed] from /?p=7896.