The Positive School of Criminology | Page 7

free will, while the legislator has decided that it shall not be assumed. Now, in science as well as in legislation, we should follow a direct and logical line, such as that of the classic school or the positive school of criminology. But whoever thinks he has solved a problem when he gives us a solution which is neither fish nor fowl, comes to the most absurd and iniquitous conclusions. You see what happens every day. If to-morrow some beastly and incomprehensible crime is committed, the conscience of the judge is troubled by this question: Was the person who committed this crime morally free to act or not? He may also invoke the help of legislation, and he may take refuge in article 46,[A] or in that compromise of article 47,[B] which admits a responsibility of one-half or one-third, and he would decide on a penalty of one-half or one-third.
All this may take place in the case of a grave and strange crime. And on the other hand, go to the municipal courts or to the police courts, where the magic lantern of justice throws its rays upon the nameless human beings who have stolen a bundle of wood in a hard winter, or who have slapped some one in the face during a brawl in a saloon. And if they should find a defending lawyer who would demand the appointment of a medical expert, watch the reception he would get from the judge. When justice is surprised by a beastly and strange crime, it feels the entire foundation of its premises shaking, it halts for a moment, it calls in the help of legal medicine, and reflects before it sentences. But in the case of those poor nameless creatures, justice does not stop to consider whether that microbe in the criminal world who steals under the influence of hereditary or acquired degeneration, or in the delirium of chronic hunger, is not worthy of more pity. It rather replies with a mephistophelian grin when he begs for a humane understanding of his case.
[A] Article 46: "A person is not subject to punishment, if at the moment of his deed he was in a mental condition which deprived him of consciousness or of the freedom of action. But if the judge considers it dangerous to acquit the prisoner, he has to transfer him to the care of the proper authorities, who will take the necessary precautions."
[B] Article 47: "If the mental condition mentioned in the foregoing article was such as to considerably decrease the responsibility, without eliminating it entirely, the penalty fixed upon the crime committed is reduced according to the following rules:
"I. In place of penitentiary, imprisonment for not less than six years.
"II. In place of the permanent loss of civic rights, a loss of these rights for a stipulated time.
"III. Whenever it is a question of a penalty of more than twelve years, it is reduced to from three to ten years; if of more than six years, but not more than twelve, it is reduced to from one to five years; in other cases, the reduction is to be one-half of the ordinary penalty.
"IV. A fine is reduced to one-half.
"V. If the penalty would be a restriction of personal liberty, the judge may order the prisoner to a workhouse, until the proper authorities object, when the remainder of the sentence is carried out in the usual manner."
It is true that there is now and then in those halls of justice, which remain all too frequently closed to the living wave of public sentiment, some more intelligent and serene judge who is touched by this painful understanding of the actual human life. Then he may, under the illogical conditions of penal justice, with its compromise between the exactness of the classic and that of the positive school of criminology, seek for some expedient which may restore him to equanimity.
In 1832, France introduced a penal innovation, which seemed to represent an advance on the field of justice, but which is in reality a denial of justice: The expedient of extenuating circumstances. The judge does not ask for the advice of the court physician in the case of some forlorn criminal, but condemns him without a word of rebuke to society for its complicity. But in order to assuage his own conscience he grants him extenuating circumstances, which seem a concession of justice, but are, in reality, a denial of justice. For you either believe that a man is responsible for his crime, and in that case the concession of extenuating circumstances is a hypocrisy; or you grant them in good faith, and then you admit that the man was in circumstances which reduced his moral responsibility, and thereby the extenuating circumstances become a denial of justice. For if your conviction