A Chapter on Penology
In discussing the moral education of children in the last chapter I found myself naturally using the
word "penology," and once or twice before we have been led by metaphor or example to see the
close relationship between penology and pedagogy. The problem which is presented by naughty
boys is much the same as that presented by naughty men, and it is not altogether a digression to
devote a few pages to the latter.
Tolstoy disapproves altogether of punishment in any form and of the exercise of force by man
upon man, and he is quite ready to dispense with prisons altogether. This seems like a very radical
position, but, strange to say, the most competent prison experts go almost as far. Mr. Charlton T.
Lewis, President of the National Prison Association of the United States for the past twenty years,
declared in his address before the National Prison Congress at Louisville in 1903 that "our county
jails everywhere are the schools and colleges of crime. In the light of social science it were better
for the world if every one of them were destroyed than that this work should be continued." And
again: "Experience shows that the system of imprisonment of minor offenders for short terms is
but a gigantic measure for the manufacture of criminals." "Freedom, not confinement," he adds,
"is the natural state of man, and the only condition under which influences for reformation can
have their full efficiency."
In an address to a former Prison Congress (Hartford, Sept. 25, 1899, published in the Yale Law
Journal of October, 1899) the same authority says: "Prison life is unnatural at best. Man is a
social creature. Confinement tends to lower his consciousness of dignity and responsibility, to
weaken the motives which govern his relations to his race, to impair the foundations of character
and unfit him for independent life. To consign a man to prison is commonly to enrol him in the
criminal class.... With all the solemnity and emphasis of which I am capable, I utter the profound
conviction, after twenty years of constant study of our prison population, that more than
nine-tenths of them ought never to have been confined."
Mr. Lewis makes a strong plea for the "indeterminate sentence," and the release from prison,
under proper supervision, of all prisoners whose release would not be a menace to society. "In all
but extreme cases of depravity, what is needed with the youth beginning a lawless career is that
the social motives in him be awakened and strengthened, that the habit of foresight, the sense of
responsibility, the regard for the esteem of his fellows, the sympathy with mankind, be aroused to
constant action. It is in the social life of the community that this work can properly be done."
The report of the Committee on Preventive Social Work made to the Fourth New York State
Conference of Charities at Buffalo in November, 1903, is as strong in its condemnation of prisons
as Mr. Lewis -- the Chairman of the Committee, Mr. J. G. Phelps Stokes, having taken part in the
Prison Congress at Louisville. This Committee speaks as follows: "At the Thirty-Second Annual
Congress of the National Prison Association, recently held in Louisville, Kentucky, there were
present upward of one hundred prison officers representing the penal institutions of the United
States and Canada, and as many penologists and criminologists and students of social movements.
The sessions of the Congress lasted five days, and throughout the entire proceedings there was
not a dissentient voice raised against the opinion voiced by many of the speakers, that the prisons
themselves are among the principal sources of crime, and that they probably create far more crime
than they cure. There were those present who maintained (and they among the ablest and most
experienced), and who presented impressive evidence and arguments to show, that upon the
whole the influence of most of our prisons upon the offenders and upon society should be
regarded as detrimental rather than the reverse."
Upon such a statement of the case, made by those who manage the prisons and know most about
them, the question naturally arises: Why, then, not abolish the prisons? But Tolstoy does not go
so far as this. He does not propose abolition. He virtually says: "I do not believe in exercising
coercion on my fellow-men, and hence I cannot undertake to execute or imprison them directly or
indirectly. Let him who is without sin cast the first stone. Who am I to act as judge? And as
people come gradually round to my opinion, there will be fewer and fewer left who will be willing
to act as hangman and jailers and warders, until finally such professions disappear."
And here and there I see evidences that this leaven is working in society. The headsman showed
his sense of shame by wearing a mask. The hangman's occupation has always been held infamous,
and I see no reason why that of the "electrician" who manages an "electrocution" should be less
so. Some years ago a hanging took place in a Canadian town, and they could not find a carpenter
in the neighbourhood who was willing to erect the scaffold, and finally they had to send to a
distant city to engage an artisan sufficiently barbarous to undertake the job. Even soldiers have the
decency to serve out one rifle with a blank cartridge to an execution squad so that each man may
hope that he is innocent of the victim's blood.
Maupassant relates an interesting story in his Sur L'Eau of an assassin who was condemned to
death at Monaco. No one could be found in the principality to execute him, and the French
government charged too much for its friendly offices. The sentence was consequently commuted
to imprisonment for life, but after a time this also was found an expensive charge upon the little
country, and they besought the prisoner to escape, which he flatly refused to do. Finally, we are
told that they agreed to pay him a pension, and he was induced to settle just over the border in
France. Maupassant records this as an historical fact, and in relating it I do not know how far he
allowed his art to triumph over his accuracy.
The case of Sheriff Mines, of Camden, New Jersey, who died in 1903, is in point. According to
the newspapers his death resulted directly from the execution of a criminal. He had dreaded the
ordeal beforehand, but had nerved himself sufficiently to carry it through. When it was over,
however, his health failed, and he began to waste away. He could not get the scenes of the
execution out of his mind, and they preyed upon him until he collapsed altogether at his office,
was taken home; and, after lingering a few weeks in bed, died. The doctors called it "acute
indigestion brought on by worry," but a more profound diagnosis would ascribe his death to
"maladaptation to environment due to his superior civilization." If Mr. Mines had foreseen the
outcome of his act, he would have resigned his office before the day of execution, and when the
time comes when no one can be found to fill such a vacancy, capital punishment will have been
Tolstoy's attention was first called to capital punishment when, as a young man, he witnessed an
execution by the guillotine at Paris, and he instinctively felt then and there that the whole thing
was evil and only evil. It was simply one man killing another. We talk of the "State's" hanging a
man, but a State cannot hang. We cannot avoid responsibility for our individual acts in that way.
And what good does capital punishment do? Life is just as safe in countries where it no longer
It has no deterrent effect, and this was shown by the assassination of President McKinley. He had
just completed a journey through fifteen or more of the States, in several of which capital
punishment had been abolished. A week before his murder he had passed several days in
Michigan, where they stopped hanging people thirty years ago. Czolgosz might have shot him
there (and it was nearer the murderer's home than the actual scene of the deed) with the absolute
certainty of escaping with his life. But what did he do? He waited until the President had entered a
State where speedy expiation by death was inevitable, and here it was that he accomplished his
design. If capital punishment had any effect at all, it was to precipitate the crime, and it is not
impossible that the prospect of a trial for his life and the dramatic surroundings of an execution
really had some influence in fixing his choice of place for the crime. But the fact is that criminals
rarely think of punishment. Their mind is engrossed with the criminal act, and they either snap
their fingers at the penalty or expect to avoid it.
And capital punishment is demoralizing to those who take part in it, to those who read of it, and
to all the inmates of the prison in which it is performed. For this last fact, read the Ballad of
Reading Gaol, and that the same is true in Sing-Sing prison is proved by the fact that the officials
of that institution petitioned the Legislature some years ago to remove all executions to the little
prison of Dannemora, in the Adirondack wilderness, on account of the pernicious effect which
such events had upon the prisoners generally. When the State feels impelled to go off into the
woods to do its work, we may be sure that it is dirty work which ought to be left undone.
The proper treatment for a criminal is to develop the good that is in him, and there is always at
least a germ of good. I was reminded of this fact a year or two ago, when, during a visit to
Georgia, I learned that a convict had made his escape in a daring manner from the new Federal
prison at Atlanta. Descriptions of the man were at once telegraphed all over the country, and in
these he was designated as a "desperate character." And what do you suppose was the occupation
which had been assigned to this "desperate character" in the prison? He had been appointed
barber, and he had been accustomed from morning till night to wield a sharpened razor upon the
throats of his fellows! He had been trusted to this extent -- and could trust go farther? -- and he
had fully justified the trust reposed in him. The story was a lesson to me in penology. It showed
that the safety of the community rests upon the good will of our fellows far more than upon the
threatening arm of the law, and that the kindliness even of ruffians is one of the bulwarks of
Men in prison differ very little from those outside. Ask any humane and sympathetic warden, and
he will tell you that a small proportion of the prisoners in his charge have the criminal head, and
seem to have been predestined to a life of crime. Is it not rather hard to punish men for the shape
of their skulls? An asylum would be the proper place for them. And then the rest of the prisoners,
he would tell you, are very, very much like you and me. So that, barring the small class of
defectives, if all the prisons were emptied to-day, and you and I and our friends put in instead, the
world would go on very much the same. Mankind is not divided into good and bad people, but
each individual has his good half and his bad half, and the best of all discipline is that which is
exercised by the saint in a man over the sinner in him. This is the only real self-government, and
the education which tends toward it is worth more for the public safety than all our penal
institutions put together.
And how ineffectual those institutions are! Over ten thousand homicides are committed in the
United States every year, and probably not ten percent of the perpetrators are punished. The other
ninety percent are at large -- not only of last year, but of the preceding years -- and yet we are not
afraid. Then we know that all the men who will commit next year's murders are free to-day, and
the murderers of the immediately succeeding years as well, and that nothing can prevent it; and
yet we go on living in tranquillity, not relying evidently upon the power of the law so much as
upon the good will toward us of the human beings among whom we are placed.
Then when the law does intervene, how far does it protect us? It usually imprisons the criminal. A
life imprisonment is rarely served out to the end, and we may practically consider imprisonment as
a temporary punishment. We take a "desperate character," put him in prison, keep him there under
harsh and forbidding circumstances for five or ten years, and then release him absolutely. It is (as
Mr. Lewis says) "as if one should cage a man-eating tiger for a month or a year and then turn him
loose." Is it likely that he will come out with a greater feeling of consideration for his fellows than
when he went in? Is he not perfectly sure to be a more "desperate character" than he was at the
beginning? And can such a policy be considered to any great extent protective of society?
Our penal laws have only one legitimate object, and that is to make better men. Crime is the result
of lovelessness, when it is not a disease, and the true field of reformatory activity is to produce a
spark of love in human souls. How little our prisons are adapted to this end is sufficiently evident.
As for capital punishment, it is a clear evasion of our duty. What right have we, as some one has
asked, to make a sort of Botany Bay of the world to come, and send our hardest cases there
without consulting the wishes of the inhabitants? Nurses in hospitals fight over the most desperate
cases, and prefer them to all others; and so the true penologist should long to exercise his healing
influence upon the most advanced, and consequently the most interesting, cases of wickedness.
There is not a man living so low but we can do something better with him than hang him.
Whether we ever arrive at such a conception of the police powers of the government or not -- and
there are not wanting indications that society is headed in that direction -- it is, at any rate, a
pleasure to find that we owe most of our security not to gibbets and dungeons and the resulting
cowardice and fear, but rather to the natural kindliness of our fellow-creatures, an atmosphere
which is conducive not only to safety, but to happiness.
It will be a slow matter, the gradual apprehension of the truth regarding crime and punishment,
scientifically and sympathetically. In Burmah punishment is looked upon as an expiation for crime,
and when the prisoner has paid his debt to society he comes out a new man. His books are
balanced, and he is as good as any one else. (See Mr. Fielding's fascinating book, The Soul of a
People.) With us, on the contrary, the punishment is a far greater stain than the crime. Most of us
could easily stand the burden of an ancestor who had committed murder, but the ignominy of one
who had been hanged would be almost overwhelming.
Further than this there may be a redeeming element in crime itself. Edward Carpenter suggests in
one of his luminous essays that the criminal often keeps alive some necessary social element which
the prevailing society has neglected. We may thus suppose that the smuggler is not so much a
criminal as a protester against the unnatural shackles of trade and an object lesson in a higher
morality than that of his fellow-citizens.
It is a fact that the greatest crimes are also the greatest virtues. High treason is the first of crimes,
and it is also often the first of duties. How many of the great benefactors of the race have stood in
the prisoner's dock? Until recently a picture of the crucifixion, the greatest miscarriage of justice,
hung in every French court-room. The Government has recently ordered them to be removed, but
it was ill-advised, I think, for I know of no better reminder to the bench of its errors and
limitations. It would have been better to add other pictures of the great and good convicts of
history, whose faces would be likely to instil greater modesty into the hearts of the enforcers of
And the vulgar criminal may have his virtues, too. Let us call that enlightened witness, Mr. Lewis,
again. He speaks of convicts, "whom I regard as heroes upon the face of the earth, and before
whom I am happy to bow in reverence as to those to whom I must give precedence by a true
standard of manhood. For I know my life has wrought no such heroic work as that of the man
who, under the terrible burden of inherited degradation and accumulated shame, has achieved the
conquest of self, the victory over passion, the triumph over his own past and over the prejudices
of a community which had learned to distrust and despise him."
The "indeterminate sentence" and the "probation" system, in the hands of men like Mr. Lewis,
would certainly be a great advance in the right direction, and he declares that wherever they have
been fairly tried they have succeeded marvellously. The criminal, like the child, must learn in
society, and not in a school which shuts him out from real life. The convict at large could be
committed to the supervision of such societies as the Prison Association, the "Volunteers" or the
But society itself is largely responsible for the crime committed within it. We forget the solidarity
of social conduct, and that we are members one of another, and silent partners in each other's
misdeeds. Beside each criminal prosecution, "The People against John Doe," I would like to see
another action instituted entitled "John Doe against the People," in which the community should
be brought to book for having made a criminal of the plaintiff or permitted him to become one,
and the evidence offered would be that of unjust social conditions, improper environment, the
limitation of opportunities and the shortcomings of education.
"Every student of our penal administration knows well that the criminal class is, generation after
generation, the continual product of our social system," says Mr. Lewis, and he points out, as an
example, the evil effect of imprisonment for petty offences, but his remark is true in the widest
sense. We must be just in our social and industrial arrangements before we can decently talk of
"administering justice," and we must in educating the child begin to develop that germ of good
which, if it is once allowed to atrophy, may sooner or later leave him an apt candidate for
membership in the criminal classes.