So far as this contention is true, it shows that a penalty reckoned upon is not unjust. Yet now when morals and law are in practice further apart than before, the infliction of such a penalty may be legally unimpeachable and, notwithstanding, it may revolt our whole moral nature that one compelled into crime by his antecedents and environment should suffer for it.
The more completely one understands the criminal, the more does desire for retribution pass into pity and desire for his reform. In our present penal system, which since Beccaria and Howard has been influenced by the reformation theory, the loss of liberty occupies the principal place, and this is not of necessity reformatory. As imprisonment becomes more reformatory, it may become less irksome and so less preventive; in improving the criminal it may injure society. Granting that it is desirable to reform the prisoners if possible, how is it to be accomplished? It is the well-nigh unanimous opinion of specialists that short terms of confinement are deteriorating in their influence, and this result can hardly be due to bad administration, for it was in Belgium, where the management is admittedly excellent, that the idea of doing away with short terms originated. But on the other hand long terms, which aim to make confinement painful and humiliating, do not succeed much better. We are told here, too, that "reformation is a fiction." The conditions may be more favorable; the material is more intractable; indeed, the great majority are already lost beyond saving.
If neither form of punishment avails to reform the prisoners, what restraining influence do they exert on him or others? In this regard long terms are much more effective.
Anthropology and sociology indicate that certain individuals have a criminal nature. They are habitual or incorrigible criminals and, as such, should be rendered harmless to society, for as long a period as possible. This bold position of the International Criminological Association breaks with the idea that the criminal is punished for his deed, and takes the stand that he should be punished for his mental and moral condition. In other words, punishment is transformed into judicious treatment, the element of pain is eliminated, as it already has been from the care of the insane. The judge, perhaps on petition from the community to which the criminal or dissolute man belongs, should decide on the necessity of the state's caring for him. Such care would involve life in a state institution, but a minimum use of force or restraint. No habitual criminal should be released without retaining some hold upon him. The element of compensation to the party injured should be given greater importance in our criminal law. At present it seems to be an amalgamation of morals and law, and such a return towards the original private treatment of crime might give morals an independent
