This is admitted, amongst others, by Ortolan, Davesies de Pontes, and Roeder, who quote as favourable, though only for recidivists, Henke Stelzer, Reichmann, Mohl, Groos, von Struve, von Lichtenberg, Gotting, Krause, Ahrens, Lucas Bonneville, Conforti, and others, amongst students of criminality; and Ducpetiaux, Ferrus, Thomson, Mooser, Diez, Valentini, and D'Alinge amongst prison experts.
After this first period, the principle of segregation for an unfixed term, as a basis for the penal system, has been supported by Despine, and developed by a few German writers. These latter have insisted especially on the disadvantages of the penal systems inspired by the classical theories, though they run somewhat to excess, like Mittelstadt, who proposed the re- establishment of the brutal punishment of flogging.
In corporal punishments, it is true, there would be a certain gain of efficaciousness, particularly against such hardened offenders as the born criminals, so that there is a reaction in favour of these punishments. M. Roncati, for instance, writing of prison hygiene, says that he would be glad to see ``the maternal regime,'' with its salutary use of physical pain before the child has developed a moral sense; and if flogging is objectionable, resort might be had to electricity, which is capable of giving pain without being dangerous to health or revolting. Similarly Bain says that the physiological theory of pleasure and pain has a close relation to that of rewards and punishments, and that, as punishment ought to be painful, so long as it does not injure the convict's health (which imprisonment is just as likely to do), we might have recourse to electric shocks, which frighten the subject by their mysterious power, without being repugnant. Again, the English Commission of Inquiry into the results of the law of penal servitude declared in its report that, ``In English prisons, disciplinary corporal punishments (formerly the lash, then the birch) are inflicted only for the most serious offences. The evidence has shown that in many cases they produce good results.''
Nevertheless corporal punishments, as the main form of repression, even when carried out with less barbarous instruments, are too deeply opposed to the sentiment of humanity to be any longer possible in a penal code. At the same time they are admissible as disciplinary punishments, under the form of cold baths, electric shocks, &c., all the more because, whether prescribed by law or not, they are inevitable in prisons, and, when not regulated by law, give rise to many abuses, as was shown at the Stockholm Prison Conference in 1878.
I agree with Kirchenheim that Dr. Kraepelin's scheme of seclusion for unfixed periods is more practical and hopeful. When the measure of punishment is fixed beforehand, the judge, as Villert says, ``is like a doctor who, after a superficial diagnosis, orders a draft for the patient, and names the day when he shall be sent out of hospital, without regard to the state of his health at the time.'' If he is cured before the date fixed, he must still remain in the hospital; and he must go when the time is up, cured or not.
Semal reached the same conclusion in his paper on ``conditional liberation,'' at the second Congress of Criminal Anthropology.
And this notion of segregation for unfixed periods, put forward in 1867 for incorrigible criminals by the Swiss Prison Reform Association, has already made great progress, especially in England and America, since the Prison Congress of London (1872) discussed this very question of indefinite sentences, which the National Prison Congress at Cincinnati had approved in the preceding year.
In 1880 M. Garofalo and I both spoke in favour of indefinite segregation, though only for incorrigible recidivists; and the same idea was strikingly supported in M. Van Hamel's speech at the Prison Congress at Rome (1885). The eloquent criminal expert of Amsterdam, speaking ``on the discretion which should be left to the judge in awarding punishment,'' made a primary distinction between habitual criminals, incorrigible and corrigible, and occasional criminals. ``For the first group, perpetual imprisonment should depend on certain conditions fixed by law, and on the decision of the judge after a further inquiry. For the second group, the application of an undefined punishment after the completion of the first sentence will have to depend in the graver cases on the conditions laid down by law, and in less serious cases upon the same conditions together with the decision of the judge, who will always decide from time to time, after further inquiry, as to the necessity for prolonging the imprisonment. For the third group, the judge will have to be limited by law, in deciding the punishment, by special maximums, and with a general minimum.''