This method of ``administering justice'' must be radically altered. The State must indemnify individuals for the damage caused by crimes which it has not been able to prevent (as is partially recognised in cases of public disaster), recouping itself from the criminals.
Only then shall we secure a strict reparation of damage, for the State will put in motion its inexorable fiscal machinery, as it now does for the recovery of taxes; and on the other hand the principle of social community of interests will be really admitted and applied, not only against the individual but also for him. For we believe that if the individual ought to be always responsible for the crimes which he commits, he ought also to be always indemnified for the crimes of which he is the victim.
In any case, as the indefinite segregation of the criminal is the fundamental principle of the positive system of social defence against crime, apart from the technical systems of imprisonment and detention, so indemnification as a social function is a second essential principle, apart from the special rules of procedure for carrying it into effect.
These two fundamental principles of the positive system would still be incomplete if they did not come into practical operation according to a general rule, which leads up to the practical organisation of social defence--that is to say, the adaptation of defensive measures to the various criminal types.
The tendency of the classical theories on crime and prison discipline is in sharp contrast, for their ideal is the ``uniformity of punishment'' which lies at the base of all the more recent penal codes.
If for the classical school the criminal is but an average and abstract type, the whole difference of treatment is, of course, reduced to a graduation of the ``amount of crime'' and the ``amount of punishment.'' And then it is natural that this punitive dosing should be more difficult when the punishments are different in kind, and not very similar in their degrees of coincident afflictive and correctional power. Thus the ideal becomes a single punishment, apportioned first by the legislature and then by the judge, in an indefinite number of doses.
Here and there a solitary voice has been heard, even amongst the classical experts, objecting to this tendency towards dogmatic uniformity; but it has had no influence. The question brought forward by M. D'Alinge at the Prison Congress in London (Proceedings, 1872, p. 327), ``whether the moral classification of prisoners ought to be the main foundation of penitentiary systems, either in association or on the cellular plan,'' which he himself decided in the affirmative, was not so much as discussed, and it was not even referred to at the successive Congresses at Stockholm (1878), Rome (1885), and St. Petersburg (1889). On the contrary, the Congress at Stockholm decided that, ``reserving minor and special punishments for certain slight infractions of the law, or for such as do not point to the corrupt nature of their authors, it is desirable to adopt for every prison system the greatest possible legal assimilation of punishments by imprisonment, with no difference except in their duration, and the consequences following upon release.''[20]
[20] Proceedings, i. 138-70, 551-7, 561-3. Now and then, however, a prison expert of more positive tendencies maintains ``the very great use, or rather the scientific necessity, of the classification of prisoners as a basis for the punitive and prison system'' (Beltrani Scalia.)
