Indeterminate Sentence | Page 4

conduct method are
substantially failures, and must continue to be so until they rest upon
the absolute indeterminate sentence. They are worse than failures now,
because the public mind is lulled into a false security by them, and
efforts at genuine prison reform are defeated.
It is very significant that the criminal class adapted itself readily to the
parole system with its sliding scale. It was natural that this should be so,
for it fits in perfectly well with their scheme of life. This is to them a

sort of business career, interrupted now and then only by occasional
limited periods of seclusion. Any device that shall shorten those
periods is welcome to them. As a matter of fact, we see in the State
prisons that the men most likely to shorten their time by good behavior,
and to get released on parole before the expiration of their sentence, are
the men who make crime their career. They accept this discipline as a
part of their lot in life, and it does not interfere with their business any
more than the occasional bankruptcy of a merchant interferes with his
pursuits.
It follows, therefore, that society is not likely to get security for itself,
and the criminal class is not likely to be reduced essentially or reformed,
without such a radical measure as the indeterminate sentence, which,
accompanied, of course, by scientific treatment, would compel the
convict to change his course of life, or to stay perpetually in
confinement.
Of course, the indeterminate sentence would radically change our
criminal jurisprudence and our statutory provisions in regard to
criminals. It goes without saying that it is opposed by the entire
criminal class, and by that very considerable portion of the population
which is dependent on or affiliated with the criminal class, which seeks
to evade the law and escape its penalties. It is also opposed by a small
portion of the legal profession which gets its living out of the criminal
class, and it is sure to meet the objection of the sentimentalists who
have peculiar notions about depriving a man of his liberty, and it also
has to overcome the objections of many who are guided by precedents,
and who think the indeterminate sentence would be an infringement of
the judicial prerogative.
It is well to consider this latter a little further. Our criminal code,
artificial and indiscriminating as it is, is the growth of ages and is the
result of the notion that society ought to take vengeance upon the
criminal, at least that it ought to punish him, and that the judge, the
interpreter of the criminal law, was not only the proper person to
determine the guilt of the accused, by the aid of the jury, but was the
sole person to judge of the amount of punishment he should receive for

his crime. Now two functions are involved here: one is the
determination that the accused has broken the law, the other is gauging
within the rules of the code the punishment that, each individual should
receive. It is a theological notion that the divine punishment for sin is
somehow delegated to man for the punishment of crime, but it does not
need any argument to show that no tribunal is able with justice to mete
out punishment in any individual case, for probably the same degree of
guilt does not attach to two men in the violation of the same statute,
and while, in the rough view of the criminal law, even, one ought to
have a severe penalty, the other should be treated with more leniency.
All that the judge can do under the indiscriminating provisions of the
statute is to make a fair guess at what the man should suffer.
Under the present enlightened opinion which sees that not punishment
but the protection of society and the good of the criminal are the things
to be aimed at, the judge's office would naturally be reduced to the task
of determining the guilt of the man on trial, and then the care of him
would be turned over to expert treatment, exactly as in a case when the
judge determines the fact of a man's insanity.
If objection is made to the indeterminate sentence on the ground that it
is an unusual or cruel punishment, it may be admitted that it is unusual,
but that commitment to detention cannot be called cruel when the
convict is given the key to the house in which he is confined. It is for
him to choose whether he will become a decent man and go back into
society, or whether he will remain a bad man and stay in confinement.
For the criminal who is, as we might say, an accidental criminal, or for
the criminal who is susceptible to