Quite recently, Senator Berenger introduced a measure in France ``on the progressive increase of punishment in cases of relapse,'' which became law on March 26, 1891, under the title of ``the modification and increase of punishments.''
It is therefore very probable that even the classical criminalists will end by accepting the indefinite seclusion of hardened criminals, as they have already come to accept criminal lunatic asylums, though both ideas are opposed to the classical theories.
This is so true that at the Prison Congress at St. Petersburg in 1889 the question was first propounded ``whether it can be admitted that certain criminals should be regarded as incorrigible, and, if so, what means could be employed to protect society against this class of convicts.'' And speaking as a delegate from the Law Society of St. Petersburg, M. Spasovitch acknowledged that ``this question bore the stamp of its origin on its face. Of all the questions in the programme, it seemed to be the only one directly inspired by the principles of the new positive school of criminal anthropology, whose theories, propagated beyond the land of their birth in Italy, tended to a radical reform in science as well as in legislation, in the penal law as well as in procedure, in ideas of crime as well as in the modes of repression.''
The Congress, in spite of some expressions of reserve, as when Madame Arenal platonically observed that ``an uncorrected criminal is not synonymous with an incorrigible criminal,'' adopted the following resolution:--``Without admitting that from the penal and penitentiary point of view there are any absolutely incorrigible criminals''--which is pure pedantry--``yet since experience shows that there are in fact individuals who resist the combined action of punishment and imprisonment''--a notable admission!--``and who habitually and almost professionally renew their violation of the laws of society, this section of the Congress is unanimously of opinion that it is necessary to adopt special measures against such individuals.''
Similarly the International Union of Penal Law, in its session at Berne (August, 1890), expressed the opinions of the majority in the following terms:--``There are malefactors for whom, in view of their physical and moral condition, the constant application of ordinary punishments is inadequate. In this class are specially included the hardened recidivists, who ought to be considered as degenerate criminals, or criminals by profession. Malefactors ought to be subjected, according to the degree of their degeneration, or of the danger which they threaten, to special measures, framed with the purpose of preventing them from inflicting harm, and of amending them if possible.'' And in the session at Christiania (August, 1891), after the remarkable contribution of Van Hamel, the Union, after rejecting the proposition of Felisch, which spoke of ``the uncorrected'' in place of the ``incorrigible,'' unanimously approved the conclusions of Van Hamel:--``With a view to the more complete study of the character and injurious influence of habitual offenders, notably of such as are incorrigible (a study which is absolutely indispensable for legislation), the Union instructs its officers to urge upon the various Governments the great importance of statistics of recidivism which shall be detailed, precise, uniform, and adapted for comparative study. For incorrigible habitual offenders it is absolutely necessary that the trial on the last charge shall not definitely determine the treatment of the offender, but that the decision shall be carried on to a further inquiry, which shall have regard to the offender personally, to his past, and to his conduct during a fixed period of observation.
It is now necessary to inquire what form the perpetual or indefinite segregation of the criminal should assume.
Two great innovations in regard to prisons, as M. Tarde observes, have been made or developed within the past century, which are not yet adopted in every country: penal colonies, whereof transportation is only a factor, and the prison cell. The cell has assumed a leading position since it was brought over from America to Europe, where, however, the cellular prisons of St. Michael at Rome, and of Gand, had preceded it.
The cellular system, a product of the reaction against the enormous physical and moral putrefaction of the inmates of common prisons and labour establishments, may have had, and doubtless still has many advocates, amongst other reasons for the spirit of pietism and religious penitence which always goes with it; but it is open to strong criticism.