In the earliest edition of this work I maintained that repression ought to be mild in form for occasional criminals, and progressively severe for recidivists and habitual evildoers, until it reached perpetual segregation. The Italian proverb, that ``the first fault is pardoned and the second whipped,'' is an unconscious confirmation of the popular opinion. And from this point of view the conditional sentence, if combined as in the French law with progressive severity of repression for recidivists, is sufficiently attractive in the first instance.
But the conditional sentence, to consider it for a moment as it has hitherto been propounded and carried out, has two characteristic defects, in common with the actual penal system, of which its advocates, for the most part balancing between the classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its attention on crime, and the positive school studies the criminal, especially in regard to his biological and psychological character, the advocates of the conditional sentence (and of the laws which have so far brought it into operation) oscillate between the two standpoints, considering the criminal, no doubt, rather than the crime, but only the average and abstract criminal, not the living and palpitating criminal, as he is to be found in his several categories. In proof of this it is enough to observe that the ninth article of the Belgian law admits the conditional sentence, so far as punishment is concerned, when this punishment does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE CUMULATION OF TWO OR MORE! In other words, the conditional sentence is allowed in the case of a criminal who has committed several offences--which substantially (except in the few cases of connected offences due to the same action, or arising out of the same occasion) is a mere case of relapse, and therefore proves in the majority of cases that the law is not dealing with true occasional criminals; for these, as a rule, like criminals of passion, only commit a single crime or offence.
The two fundamental conditions of the conditional sentence in Europe (a slight infraction and a nonrelapsed criminal) do not, therefore, afford a complete guarantee of the utility of its application.
It is true that this system tends to fix the attention of the judge on the personal conditions of the prisoner, requiring him to decide if the conditional sentence is suitable to the particular occasion, having regard to the special circumstances of the action and the individual, apart from the legal limitations of the offence and of the punishment.
But we know that the crowding of the prisons with persons condemned to short terms of imprisonment is attended by a grievous crowding in the courts of prisoners accused of slight offences and contraventions. Thus it is inevitable that the judges, even apart from their ignorance of the biological and psychological characters of the offenders, being compelled to decide ten or twenty cases every day, cannot fix their attention on the procession of figures which files past the magic lantern of the courts, but simply leave them with a ticket bearing the number of the article which applies, not to THEM, but to their particular infraction of the law. Thus the judges will come to pronouncing the conditional sentence almost mechanically, just as they have come to give the benefit of attenuating circumstances by force of habit This device also was introduced in France in 1832, in order to ``individualise punishment''--that is to say, to compel the judge to apply his sentence rather to the criminal than to the crime.
So long as penal procedure is not radically reformed, as we have proposed, in such a manner that the inquiry, the discussion, the decision upon the evidence, which are the only proper elements of penal justice, aim at and lead up to the determination of a prisoner's biological and psychological type, it will be humanly impossible for the practical application of these judicial measures to overcome the mechanical impersonality of justice, which applies rather to the crime than to the criminal.
Hence the conditional sentence, though it was evolved by the abuse and disastrous effects of short terms of imprisonment, and in spite of its generating principle that ``the first fault is pardoned and the second whipped,'' has to-day only the character of an eclectic graft on the old classic stock of penal law and procedure. As such, notwithstanding its attractive features (for it indicates a step in advance towards the positive system of social defence, which desires to see the application of collective defence to the individual's power of offence), it seems to me to be destined, not long after its earliest application, to deceive the anticipations of happy and beneficent results, such as its advocates entertain.