1871. Victoria. Report (No. 2)
THE ROYAL COMMISSION ON PENAL AND PRISON DISCIPLINE.
“PENAL AND PRISON DISCIPLINE.”
Presented to both houses of Parliament by his Excellency’s Command.
By Authority: John Ferres, Government Printer, Melbourne.
Table of contents.
- Punishment. 1 to 8
- Discretionary Power of Judges. 9 to 18
- Habitual Criminals. 19 to 20
- Remission of Sentences. 21 to 27
- Life Sentences. 28 to 30
- Miscellaneous Offences. 31 to 34
- Juvenile Offenders. 35 to 40
- The Crofton System. 41 to 49
- Gaols. 50 to 58
- Adaption of Crofton System. 59 to 64
- Board of Honorary Visitors. 65 to 69
- Conclusion. 70 to 71
- Appendices to Report:
- J. D. Wood’s Report on Irish Prisons
- Circular to Sheriffs
- Summary of Replies to Circular
- Appendices to Evidence
We, the undersigned Commissioners, appointed under Letters Patent from the Crown, bearing date the 8th day of August 1870, to enquire into and report upon the condition of the penal Establishments and Penal Discipline in Victoria, have the honour to submit to Your Excellency the following Report:-
- Before entering on the enquiry, according to the terms of our Commission, “whether the punishment of crimes as now provided by law, and especially for” certain crimes specified, “is adapted to their repression, and adequate to the protection of society,” we must first consider the question of the abstract relation of crime to punishment.
- It is a principle now held by almost all jurists that the primary object of punishment is to deter from crime, and thus protect society; the reformation of the offender being a secondary and subordinate object. The penal sentence passed by the judge has relation to the first, and the manner in which that sentence is carried out to the second, of these objects.
- This view is presented with much force in a memorandum affixed by the Lord Chief Justice of England to the Report of the Royal Commission on Transportation and Penal Servitude appointed in 1863. Its importance justifies our inserting the quotation. His Lordship says:-
“The purposes for which the punishment of offenders takes place are twofold; the first, that of deterring others, exposed to similar temptations, from the commission of crime; the second, the reformation of the criminal himself. The first is the primary and more important object, for though society has, doubtless, a strong interest in the reformation of the criminal, and his consequent indisposition to crime, yet the result is here confined to the individual offender, while the effect of punishment, as deterring from the crime, extends not only to the party suffering the punishment but to all who may be in the habit of committing crime, or who maybe tempted to fall into it. Moreover, the reformation of the offender is in the highest degree speculative and uncertain, and its permanency, in the face of the renewed temptation, exceedingly precarious. On the other hand, the impression produced by suffering, inflicted as the punishment of crime, and the fear of its repetition, are far more likely to be lasting, and much more calculated to counteract the tendency to the renewal of criminal habits. It is on the assumption that punishment will have the effect of deterring from crime that its infliction can alone be justified, its proper and legitimate purpose being not to avenge crime but to prevent it. The experience of mankind has shown that though crime will always exist to a certain extent, it may be kept within given bounds by the example of punishment. This result it is the business of the lawgiver to accomplish by annexing to each offence the degree of punishment calculated to repress it. More than this would be a waste of so much human suffering; but to apply less, out of consideration for the criminal, is to sacrifice the interests of society to a misplaced tenderness for those who offended against its laws. Wisdom and humanity, no doubt, alike suggest that if, consistency with this primary purpose, the reformation of the criminal can be brought about, no means should be omitted by which so desirable an end can be achieved. But this – the subsidiary purpose of penal discipline – should be kept in due subordination to its primary and principal one. And it may well be doubted whether, in respect times, the humane and praiseworthy desire and restore the fallen criminal may not have produced to great a tendency to forget that the protection of society should be the first consideration of the lawgiver.”
- In practically applying the principals set forth in the preceding extract, it is needful to keep steadily in view the two separate ends of punishment. The expression quoted above, as to deterring “others,” involves an important distinction. For it is certain, with respect to a large class of criminals, that the infliction of punishment is inefficient to deter them from preserving in evil courses. If unduly severe in proportion to the offence, especially in the higher classes of crime, it but too frequently hardens then reforms the offender. The Habitual criminal is, in general, proof against influence. But though it may not deter those who are hardened offenders, it certainly does deter many persons of weak and wavering principles, who might otherwise yield to temptation. It establishes a barrier on the boundary line between right and wrong which multitudes are prevented from overlapping. It supports and strengthens the voice of conscience, by giving to it an outward expression and a practical power. Punishment thus exercises a higher function and a wider influence that the reformation of the individual offender. The final expression of this value as a social instrument is that it preserves multitudes from becoming
- For these reasons, it is the manifest duty of the Legislature in enacting, and of judges in awarding, penal sentences, to consider primarily their deterrent force on society, and secondarily their probable moral influence on each particular offender. Every sentence must therefore carry with it a certain degree of severity. It is no doubt natural for a judge, acting under the impulses of humanity, to regard rather the reformation of the individual actually before him than the effect on the general public; but if the efficacy of punishment, as respects its primary object, be in proportion to its severity, it follows that punishment ought to be as rigorous as is compatible with a due regard to humanity. We are, therefore, of opinion that the general scale of penalties on the Criminal statute Book is by no means disproportionately severe, and that no material reduction could be made in it without incurring the risk of increasing crime, and thereby inflicting serious injury on the community.
- But although the consideration of repressing crime must take precedence of that of the criminal’s reformation, it is no less the duty as well as the interest of the State to attempt the accomplishment of the latter task. That duty becomes all the more imperative if, as we have shown, there is a large class of criminals on whom punishment has no continuous deterrent effect. Men of this class, when they are released from custody, if they are not better, will assuredly have become worse. Hardened and indifferent to the opinion of their fellow-men, they will have grown desperate and almost reckless. If, therefore, it is possible, whilst they are in confinement, to teach them habits of self-restraint and of respect for the law, not merely will their own moral character have been improved, but society will have been benefited by its escaping the evils to which it would have been exposed by their liberation. And thus a systematic course of reformatory treatment constitutes and indispensable part of any effect scheme of penal discipline, and all the several portions should be framed with a direct view to that end.
- Time also becomes an essential element; because the process of reformatory treatment requires to be carried forward with comparative slowness and caution from stage to stage. In many instances the first lapse into criminality may be the result of mere ignorance; ignorance of duty, or of the nature and consequences of crime; or it may be the result of an unusual temptation, acting upon a mind not naturally depraved. In these instances, and indeed in all, the inducements to criminality may be lessened by a judicious system of reformatory discipline, provided it be carried over an extended period of confinement. Whether, therefore, the question be viewed in reference to the deterrent effect of punishment, or to the duty of the State to attempt the reformation of the criminal, the logical conclusion is that the minimum period of imprisonment, in all penal sentences for serious offences, should be of considerable length.
- This principle has been recognized in the systems of penal legislation and prison discipline at present in operation in Great Britain, France, Prussia, Russia, Denmark, and other European countries, and most of the United States of America.
DISCRETIONARY POWER OF JUDGES.
- The question of the discretionary power allowed by law to judges, in awarding sentences for serious offences, has engaged our special attention, and evidence bearing on it has been obtained from a number of competent witnesses. There appears to be a prevailing impression that this power is at present more extensive than is required for the due exercise of that discretion which ought to be vested in each individual judge.
- Some foundation for such an opinion may perhaps be found, as pointed out by several of the witnesses, in the apparent disparity of the sentences awarded at different times for offences of the same general character. But this complaint of the inequality of judicial punishments is not peculiar to our own community. It has frequently been raised, for example, in the mother country. Thus, in the Report of the Royal Commission on Transportation, quoted before, it is pointed out that “the great latitude allowed by law in the sentences which may be pronounced has led to a striking inequality in the punishments inflicted, by different judges, for the same offences, committed under similar circumstances;” and that this fact has been “productive of much mischief, especially by encouraging criminals to speculate on the chance of receiving, if convicted, the minimum of punishment ever known to be inflicted.” The Commissioners, however, went no further than recording the expression of “a doubt whether the discretion entrusted to the courts, I this respect, is not, upon the whole, larger than is expedient.” It may be added that in most of the criminal laws passed since the date of that Commissioners report the limits of punishment for particular offences have been more clearly defined.
- On the other hand, it is urged with very great if not unanswerable force, that any material limitation by Statute of the judge’s discretionary power might lead, in many cases, to injustice and undue severity; and that any system of strictly formed equality of sentences for like offences is not practicable, so long as the variable degrees of inherent baseness in crimes nominally of the same kind, and the differing circumstances attend on their perpetration, are to be taken into account. The judge is certainly bound to keep both these considerations in view when allowing punishment. It is unquestionable, moreover, that a very great variety exists in the degrees of criminality in offences which, even in the most elaborate system of classification, must fall under the same head. Thus, a particular crime may be one of rare occurrence but extremely dangerous to society, and it may therefore call for an exemplary severity of sentence in order to ensure its speedier extinction; or it may be a common offence, but aggravated by circumstances of violence or brutality; or its unusual prevalence at a given period may demand that it shall be visited with a heavier punishment; or it may excessively prevalent in one district, though not in others; or it may have been perpetrated under remarkable conditions of wickedness, fraud, treachery, or cruelty. In each of those instances the punishment must be graduated, so as to produce the utmost amount of deterrent effect. The criminality of embezzlement, or of robbery, again, is varied in intensity by a multitude of circumstances having no reference to the actual amount of property stolen. A highwayman may rob a traveller of all the money he finds on him; or a burglar may plunder a house of all the property he finds in it; or a person holding a position of trust may embezzle a small amount; and in each case, although the value of the property taken may be trifling, this may arise solely from the fact that the criminal had no opportunity of taking more. Clearly, he deserves quite as severe a punishment as if he had done so. Nor could any system of uniform sentences, however carefully framed, be made to apply equitably to the almost infinite shades of guilt in crimes of dishonesty. The same principle holds true of almost every other class of crime.
- In allotting punishment, moreover, it is necessary to have regard to the age and other personal considerations relating to a criminal. A broad line of distinction must also be drawn between casual offenders and criminals by habit and repute. Moreover it must not be overlooked that various minds, acting independently, will inevitably take different views of the degree of severity properly applicable to the cases that arise. And this different action of different minds between the prescribed boundaries is an almost necessary concomitant of that freedom and independence of thought so essential to the uprightness and impartiality of a judge. For the reasons here stated, as well as for other of a less palpable but yet cogent kind, we are of opinion that any attempt to enforce a strict uniformity of sentences by Statute law would be both inexpedient and injurious to the ends of justice.
- But whilst giving the fullest weight to this conclusion, we think it is possible, and at the same time desirable, to assign more distinctly by legislative enactment the limits of penal sentences. This this end we recommend as follows:-
- That all misdemeanours and felonies (excluding homicide, which forms a class sui generis) shall henceforth be severally distinguished as 1. Simple, or 2. Aggravated; and that each of these sub-classes shall be further distinguished as 1. First convictions, or 2. Second convictions.
- That for each of these subdivisions a minimum sentence of imprisonment shall be fixed, as follows:-
|First conviction||Eighteen months.|
|Second conviction||Three years.|
|First conviction||One year.|
|Second conviction||Three years.|
|First conviction||Three years.|
|Second conviction||Five years.|
- We may here observe that the English Amended Penal Servitude Act of 1864, which is based I the Report of the Royal Commission on Transportation, fixes the minimum period of penal servitude to which a prisoner can be sentenced at five years.
- It is much less practicable to fix a maximum sentence for each of the foregoing subdivisions; and we have already stated the grounds for our belief that no general reduction of the scale of penalties at present in operation could safely be made.
- We further recommend that:-
- The judge shall in all cases decide, having due regard to the Information, as well as the other facts, before him, whether an offence in either class comes under the head of simple or aggravated. The judge would, of course, state the reasons for his decision.
- The power given to judges by the 301st section of the Criminal Law and Practice Statute to impose fines for indictable misdemeanours, in addition to or in lieu of imprisonment, shall be extended to all cases of simple felonies.
- The power given to judges under the 296th section of the Criminal Law and Practice Statute, to add private whipping to the punishments awarded for crimes accompanied with personal violence, and for unnatural offence, shall be extended to aggravated cases of offences against women and children, and to crimes perpetrated under circumstances of cruelty or brutality.
- The offence of perjury, now classed under misdemeanours, shall henceforth be ranked as a felony. It has lately become too common inn the courts of this country; it is frequently attended with circumstances of aggravation; and its prevalence is fought with serious evils to society. It therefore demands a higher classification and a more rigorous punishment.
- It shall be the duty of those charges with the prosecution of a criminal to ascertain in all cases whether he has been previously convicted, and if so to indict him accordingly, and procure the necessary evidence of his previous convictions. The information should state the date and nature of all sentences passed, as well as the other usual particulars.
- There should be kept at the Central Office a register of all persons convicted of crime in Victoria, containing full particulars for identification, as well as of the goal history, and photographic likenesses of each prisoner, taken when admitted, and when discharged. Copies of this register and of the photographs should be sent to all the gaols throughout the colony; and a sufficient time prior to each criminal sessions a properly qualified officer specially appointed for the purpose should visit the gaols, to ascertain whether any of the prisoners awaiting trial have been previously convicted.
- By the 66th section of the Criminal Law and Practice Statute, justices in petty sessions are empowered to sentence persons convicted before them of larceny under the value of Forty shillings to three months imprisonment; and the same section gives such persons the option of refusing the jurisdiction of the bench, in which cases the justices are obliged to commit them for trial. It has been shown to us that the punishment here awarded is not sufficient for offenders of this class who have undergone repeated convictions, and that much unnecessary trouble and expense are caused by granting the right of refusal in cases which might be quite as effectually disposed of in a summary way.
- We therefor recommend that this section of the Statute be so amended as to take away this right, and to give justices summary jurisdiction in all cases of larcenies under Forty shillings, but with the option as at present, if they shall think fitting, to commit the offender for trial. We also recommended that the maximum penalty awarded by justices for these offences be extended to twelve months imprisonment.
- In the recent criminal legislation of Great Britain and other countries a marked distinction is drawn between casual offenders and habitual criminals. In the latter class are included all persons who make a regular profession of crime, or who are so inveterately addicted to dishonest courses, and so averse to labour, that there is no prospect of their ceasing to seek their living by depredations on the public, unless they are compulsory withdrawn for a very considerable time from their accustomed haunts. An Act, specially directed against this class, entitled the Habitual Criminals Act, was passed in England in 1869. All persons who have been twice convicted of felony are brought under its operation, and are subjected whist at large to police supervision. The Act also provides for the registration of criminals, and for the more effectual suppression of places known to be the resorts of reputed thieves, or receptacles for stolen goods. We are of opinion that this Act, with some obvious alterations to adapt it to the special circumstances of the colony, should be added to the local Statute Book; and that a severer punishment should be provided for the case of persons found guilty of harbouring reputed thieves or receiving stolen goods. In most instances, such persons protect the offenders, and are not only accessories before the fact, but actually suggest the perpetration of the offences
- There are manifold reasons which justify the special recognition and separate treatment by the State of the class of habitual criminals. When a person is tried for a first offence (excepting his crime be one of a very grave kind), it is alike humane and reasonable to assume that he bears a general good character, and that he is capable of reformation. But if, after having undergone a course of penal discipline, specially devised to afford him the opportunity of reformation, he commits a second offence, he proves that the habit of crime is formed in him, and that the discipline has failed of its object. The State, has been put to the expense of his safe custody and supervision whilst in prison; he has lost the advantage of good character; and it is necessary to show to other that a heavier penalty will be imposed upon him when he is again convicted. There is, in addition, a large class of persons who are notoriously criminals by habit. Such persons may be guilty of minor offences, yet, by their continual repetition, they not unfrequently inflict more loss upon the public, whist they are also much less likely to become reformed, than men who, under great temptation, commit a grave but single crime. It has further been pointed out with much force that professional criminals do not stand in the same relation to the State as the rest of the community; they are, in fact, its declared enemies, not its obedient subjects. Their very business and occupation is to prey on society. The large proportion of the annual expenditure on the machinery of criminal justice, on police, gaols, and penal establishments, is necessary by this class. It is an evil leaven which is persistently fermenting, and constitutes the dangerous element of society. From motives of public morality, economy, and safety, it becomes the duty of the State, whist by an efficient system of public education it endeavours to prevent the growth of this pernicious class, to superadd an efficient system of penal discipline, expressly framed with the view to its diminution, and if possible extermination.
REMISSION OF SENTENCES.
- Our attention has been specially invited to the “advisability of maintaining or altering the existing regulations for the remission of sentences imposed by the law.”
- On the general question of the expediency of remitting sentences a wide diversity of opinion exists amongst the best practical authorities. It is urged by the advocates of the practice, that an aversion to regular labour is one of the chief sources of crime, and it is therefore of importance that the system of punishment to which prisoners are subjected should be one calculated to teach them habits of steady labour, and to associate industry in their minds with the advantages to be obtained by it; that experience has demonstrated that it is possible to compel prisoners to work hard by mere coercion, the attempt to do so having invariably failed, whilst it has produced a brutalising effect on their minds, and increased their previous aversion to labour; that the principle of measuring the punishment to be inflicted upon criminals, not by time, but by the amount of labour they shall be compelled to perform before regaining their freedom, has to a greater or less extent been adopted into all the various schemes of penal discipline which have been tried in England within the last thirty years, and has been found to answer well; that the hope of earning some remission of their punishment is the most powerful incentive to good conduct and industry which can be brought to act upon the minds of prisoners; that experience has also shown that, when prisoners have been compelled to serve the full time for which they were sentenced, they have become more sulky, more difficult to manage, and much less industrious than under the remission system; that long sentences, purposely inflicted in order to prevent the early return of criminals to their old haunts and habits of crime, if executed without remission, are calculated to arouse a feeling of undue severity; and that the detention of prisoners for a short additional period can make but little difference I the protection afforded to society, whilst it is injurious to discipline in the prisons, by depriving prisoners of the prospect of earning a mitigation of their punishment.
- On the other hand, it is argued that the remission system practically sets aside the judicial sentence passed upon the prisoner in open court, and substitutes for it a different sentence; that it is unfair to the judges to alter, by regulations, the sentences they have publicly pronounced; that criminals are confined in their evil practices by knowing that they will not actually have to undergo the punishment awarded them; that respect for the law is materially weakened when a criminal, who in known to have been sentenced to a lengthened term of imprisonment, is seen to be at large a considerable time before that term has expired; that the practice of depriving judicial sentences of a large proportion of their weight tends directly to the increase of crime; that it is necessary to the ends of justice that a clear distinction should be preserved between the sentence passed on a criminal and the nature of the discipline wo which, by his subsequent conduct, he deserves to be subjected; that judges in some cases, in awarding punishment, take the remission regulations into account, and make the sentences proportionately longer than they otherwise would have done, and that this circumstance naturally leaves the impression that the punishment awarded is unduly severe; that if, as is universally admitted, it be essential to the full efficiency of punishment that its infliction should be certain, the remission system acts injuriously in the criminal’s mind, by adding to the chances of eluding detention and of escaping conviction, a doubt as to whether, even when convicted, the sentence of the judge will really be carried out; that the fact that a convicted criminal may while under sentence escape a portion of his punishment, is of itself calculated to detract from is deterrent effect; and that the delegation of legislative power of the Executive in the matter of punishing crime is vicious in principle.
- Weighing those opposing considerations, and dealing with the question before us exclusively with reference to the sate of things existing in this country, and to the general scheme of penal discipline recommended in this and out Progress Report, we are of opinion that it is advisable to abolish the system of remitting sentences at present in operation, and to repeal so much of the 318th section of the Criminal Law and Practice Statute as empowers the Governor in Council to make rules and regulations for the mitigation or remission of sentences.
- This conclusion, we remark, is founded less on the superior force of the arguments against the remission system than on the twofold consideration, that the primary condition of the success of our proposed scheme is having ample time for its operation on a prisoner, and that the successive relaxations of discipline which it provides for may be taken as a fair equivalent for remitting a portion of the sentence.
- In all cases the prerogative of the Crown to pardon and release prisoners, or to mitigate their sentences, upon the subsequent discovery of extenuating circumstances, or of their innocence, should of course be strictly reserved. With a view, however, of ensuring similar publicity for such acts of remission, and the grounds for them, that has been given to the sentences pronounced in open court, we deferentially suggest, that whether a prisoner is liberated before the expiration of his sentence, or a mitigation of the sentence has been allowed, an announcement of the fact, with a statement of the reasons for the complete or partial pardon, shall be published in the Government Gazette.
- With the reservation here stated, we recommend that the regulations for the remission of sentences in force since 1860 shall be repealed, excepting in respect of prisoners now in confinement, and that in future the sentences awarded by the judges shall be in every case carried out in the manner described in our Report.
- Another exercise of the progressive, to which we may be permitted to refer, is the commutation of death sentences to imprisonment for life. So long as the punishment of death forms a part of the penal code, where a prisoner, after a fair trial and on clear evidence, has been found guilty of a capital offence, it is manifestly in the interests of justice to carry the sentence into effect. The injurious results arising, as already pointed out, from the uncertainty and inequality of sentences of imprisonment, are still more manifest in respect of sentences involving life itself. The chief argument in favour of the retention of death punishments is their efficacy in deterring from crimes of the highest class, and that efficacy is greatly weakened by every act of interference with the stern operation of the law. It would be better, indeed, to abolish the death penalty altogether than not to enforce it with impartial and rigorous uniformity. And it is certain that the substitution of the sentence of imprisonment for life frequently exercises an injurious influence on the prisoner himself. He is shut up for life in hopeless confinement. One of the most powerful incentives to good conduct is taken away from him, and the effect upon his mind is too often to sink him into sullen and reckless despair. Moreover, the class of life-sentenced prisoners forms a difficult and dangerous body of men, whom it is almost impracticable to bring under any fixed scheme of reformatory discipline in company with other prisoners. It has been suggested that this class should be kept in a separate prison by themselves; but the cost of such an arrangement appears to us to be a decisive objection to its adoption.
- We therefore recommend that, in future, all commutations of the death penalty shall be for a definite period of imprisonment, which we venture to suggest shall be fixed at fifteen years, and that all prisoners whose sentences shall be so commuted shall be brought within the operation of the system of discipline set forth in our Report.
- The cases of the prisoners at present undergoing life sentences are recommended to the consideration of the Executive.
- The 43rd section of the Criminal Law and Practice Statute provides that the crime of Rape shall be punishable with death. Beyond the expression of our opinion that the penalty ought to be strictly enforced in all cases attended with circumstances of special aggravation, we have no suggestion to add to that already given.
- A great advance towards the repression of Drunkenness might, we think, be made, if the act itself, apart from the conduct to which it excites, were distinctly recognized as offence. We are, of course, aware that it is impossible to make man temperate by penal enactment, or moral by Act of Parliament; and that no law should be passed to affect the individual who indulges privately in this or other personal vices. But the open exhibition of drunkenness is an outrage on public decency, and an injury to society by the evil example set, of which the law is bound to take cognizance. We therefore recommend that, in dealing with the offence of Drunkenness, the penalty shall attach, in the first instance, to the act of public exhibition in that state, and secondarily to disorderly conduct committed by the offender whist drunk. We further recommend that, as there is scarcely any substantial distinction between habitual drunkenness and lunacy, the Lunacy Statute, which is practically inoperative for this purpose, should be amended so as to include habitual drunkards. The friends of such persons should have power to make application to the Master-in-Lunacy, as in cases of lunacy; and in the remoter districts, where access to the Master is difficult and expensive, power should be given to existing local tribunals to deal with such applications under the Statute; a copy of the proceedings in every instance being forwarded to the Master for perusal and record. We also suggest that, in order to maintain a due regard for the credit and reputation of the persons on whose behalf applications of this kind may be made, the enquiries may be conducted in private.
- We do not feel called upon to recommend a more severe punishment for the offence of Obscenity. The provisions of the Statute on respect to it might with advantage be more strictly enforced by the proper authorities.
- The clauses of the Police Offences Act, if enforced with energy, are, in our opinion, sufficient for the purpose of suppressing Vagrancy. We may add that the English Habitual Criminals Act, the adoption of which we have recommended, deals stringently with the class of notorious and reputed vagrants.
- We have specially considered the prevalence of juvenile offences, and the difficulty of suggesting any effectual means of checking it. The evil is one rather to be prevented than repressed. Juvenile crime is mainly the offspring of ignorance, first in the parents, and then in the children; in a lesser degree it arises from habitual idleness, from the social circumstances of a new country, which are adverse to the growth of sentiments of reverence and obedience in the minds of the young, and from the culpable neglect of parents to look after the moral training if their children and to exercise over them proper control. Youths are permitted to roam abroad instead of being kept at home; they become contaminated in morals and depraved in manners by vicious associations, and by the evil example of adult criminals at large, whose obscene and blasphemous language they pick up, and whose actions they at length come to imitate.
- It lies beyond our province to do more than allude, in passing, to the paramount duty of the Government to encourage and foster every agency calculated to check juvenile crime in its origin. The imperious necessity of a thoroughly efficient system of public education needs not to be dwelt upon; but we may be allowed to refer to the obvious utility of evening schools for both youths and adults, in which might be taught the commoner elements of education, together with the rudiments of technical and scientific knowledge, music, and the elementary principles of art. Experience has well established the fact, that just in proportion as a taste for pursuits of this kind spreads through a community, the amount of juvenile and indeed of all crimes decreases. The character of the prevailing popular amusements is also a matter worthy of consideration, as bearing directly on this subject. It is notorious that public entertainments of an immoral or indecent kind tend directly to increase the number of juvenile criminals. It is therefore the interest of the State, not only that places of amusement should be strictly supervised, but that every means of substituting healthful and rational recreation for the people should be encouraged by the Government.
- With regard to suggesting the most suitable punishment for this class of offenders, it is to be observed that the difficulty is greatly enhanced by the palpable and serious evils arising from the incarceration of youths, either together or with adults, even for short periods of time. The invariable tendency in such case is to sink the younger offenders morally to the level of the worst of those amongst whom they are confined. Under no circumstances, as we think, should this practice be allowed. But in recommending its abolition, we are compelled to substitute in lieu of it some efficacious punishment of a summary kind. There is none that can be suggested excepting personal chastisement. It cannot be denied, however, that there exists, and properly, a strong repugnance to the infliction of corporal punishment on youths as a sentence. The objections taken to it are, that it is calculated to destroy self-respect and permanently degrade the moral feelings; and that, when once established as a legal penalty, there is a disposition to apply it too frequently and indiscriminately. There is certainly great force in these objections; but nevertheless they yield, in our opinion, to the absolute necessity of adopting corporal punishment as the only alternative for imprisonment. It is the lesser of the two evils.
- In order to guard against the possibility of abuse in its application, we recommend that no bench of justices shall have power to sentence a youth to be summarily chastised, excepting there be at least two justices present, of whom one shall be a police magistrate; that a special report shall be made in every case where the penalty is inflicted; that solitary confinement in the look-up (not in the gaol), on bread and water, for not more than twenty-four hours, may be substituted for the chastisement, or added to it, at the discretion of the bench; and that the police districts within which this power may be exercised for a definite period only, to be fixed by the Government in Council, shall be proclaimed in the Government Gazette.
- The chastisement should in all cases be inflicted with a “birch rod,” never with the lash, and in no case should any sentence be for more than five-and-twenty stripes, all to be inflicted at one time.
- The responsibility of parents for the offences of their children has been also pressed upon our attention. At first view it seems a startling proposition to inflict a penalty on one person for the misconduct of another; but, as we have stated, it is undeniable that a large measure of responsibility does in many instances rest upon the parents when children and youths, who are still under parental guardianship, are brought before the tribunals as offenders against the law. It is fitting that in such instances the culpability of neglecting to exercise proper parental control should be brought home to the parents in a practical manner. We therefore recommend that it shall be left to the discretion of the bench, upon proof of the parents’ culpable negligence, of which a previous conviction shall be deemed sufficient primâ facie evidence, to impose on them a fine (not exceeding five pounds), and to order them to make good any damage that may have been done to property by the delinquent.
THE CROFTON SYSTEM.
- We have taken into our consideration “Whether the system known as the Crofton System could be advantageously applied to this country, and if so, what steps should be taken to adopt it.”
- The Crofton System is based in part on the principle tried in Norfolk Island by Captain Maconochie about thirty years ago – that, namely, of reckoning sentences, not by time, but by the amount of labour performed by the criminal. From circumstances into which it is unnecessary to enter, Captain Maconochie’s experimental trial proved unsuccessful; but it has since been very largely adopted into the penal system of Great Britain and other countries. The Act establishing the Crofton System in Ireland, called the Irish Prisons Act, was passed in 1854. It repealed the former Prisons Act, and constituted a “Board of Directors of Convict Prisons for Ireland,” consisting of three members appointed by the Lord Lieutenant. To this Board was remitted the power of making rules for the internal management of the prisons, contracting for all necessary food and supplies, punishing breaches of discipline, and acting generally as justices within the establishments. The first chairman of the Board was Captain (now Sir Walter) Crofton, the founder of the system designated after him.
- The general principles which govern it are thus stated by Sir W. Crofton:-
- That convicts are better and more reliably trained in small numbers, and by their being made to feel, throughout their detention, that their advancement depends upon themselves, through the active exercise of qualities opposed to those which have led to their imprisonment.
- That the exhibition of the labour and training of the convicts in a more natural form, before their liberation, than is practicable in ordinary prisons, is a course obviously calculated to induce the public to assist in their absorption, and thereby to materially diminish the difficulties of the convict question.
- That the institution of appliances to render the criminal calling more hazardous will assuredly tend to the diminution of crime; and, therefore, that police supervision, photography, and systematic communication with the governors of county gaols, with a view to bring, in all possible cases, former convictions against offenders and entail lengthened sentences upon them, are matters of the gravest importance and deserving of most minute attention.
- The system includes three successive disciplinary stages, to which all criminals sentenced to lengthened terms of imprisonment are subjected. In the first stage, a prisoner is placed I solitary confinement in Mountjoy prison, in Dublin, for a period of eight months; but this term may be extended to nine months, or even to twelve months as a maximum, as a punishment for misconduct. On entering Mountjoy prison, the criminal’s personal description and photograph are taken, and registered. During the first three months the prisoner is allowed no occupation, excepting oakum picking. For the remainder of his solitary term, if he be a skilled workman, he is employed at tailoring or shoemaking; and if an unskilled labourer, he is put to mending clothes and sheets, or boot-closing, or such other employment as does not require instruction and supervision. For one hour in the day the prisoner attends school, where he is instructed not only in the elementary branches of education, but also in the whole scope and object of the system which he is undergoing. He thus learns what further discipline he has to pass through, and how much he may do to improve his position in the successive stages by good conduct and steady industry.
- At the end of his term of solitary confinement the prisoner is transferred, if he be a skilled workman, to another wing of Mountjoy prison, where associated labour is carried on; and if an unskilled labourer, he is sent to Spike Island, and set to work in the fortifications. In this stage there are four classes, designated respectively the third, second, first, and advanced (or A) classes. A prisoner enters upon the lowest grade of the third class. His conduct and diligence at his occupation are registered by marks, under the three separate heads of “discipline,” “industry,” and “school.” By attending the maximum number of marks in any class he is raised to the next highest one, and when he attains to the advanced (or A) class he is employed on special works, in another portion of the establishment, apart from the other classes of prisoners. A man’s progress from class to class depends entirely on his earning the requisite number of marks, and any misconduct subjects him to reduction and loss of marks. A gratuity of one penny per week is allowed and places to the credit of well-conducted prisoners in the third class, twopence per week to those in the second, from threepence to fourpence to those in the first, and from sevenpence to ninepence to those in the advanced (or A) class.
- When a prisoner has passed through the second stage, he is removed to what is known as an “intermediate” prison, and enters on the third stage of his disciplinary course. There are two “intermediate” prisons: one at Smithfield, in Dublin, and one at Lusk, fifteen miles from Dublin. At Smithfield, the prisoners are employed at trades; at Lusk they are employed at farm-work. At neither place are there ever more than 100 men employed. At Lusk, they are stationed in two iron huts, holding 50 men each, with accommodation for three officers attached. The huts are moveable, and consist of but one large room each, which is used as a school-room, dining-room, and dormitory, the beds being put away in the day time. A gratuity of half-a-crown a week is allowed to such prisoners as are certified to have performed their work properly, but misconduct of any kind is punished by the delinquent being sent back to solitary confinement in Mountjoy prison. At Smithfield, the gratuities are graduated according to the amount of work actually performed, but the maximum sum is half-a-crown a week, as at Lusk. The men in these “intermediate” prisoner are subject to but slight restraint or supervision; the officers are armed, and work with the men, who are allowed uncontrolled association both whist at work and at leisure. They are, even at Smithfield, sometimes permitted to go into the streets; and liberty is given them to expend sixpence a week of their gratuities on books, or tobacco, or any other article excepting drink. In addition to the usual school-teaching, the prisoners in the intermediate prisons are allowed the benefit of lectures on instructive subjects, delivered by a gentleman specially engaged and paid by the Government for that purpose. He is called the Government Lecturer to Prisons.
- Having completed his terms of “intermediate” imprisonment, the prisoner is liberated on conditional-pardon or ticket-of-leave. He is kept under police supervision, and is obliged to report himself at the constabulary station of his locality on the first day of every month. Every change of locality must also be duly reported. In Dublin prisoners at large on tickets-of-leave are visited individually once a fortnight by the Government inspector. It may be added that not much difficulty is experienced in obtaining employment for the prisoners on their release.
- When the full term of his sentence has expired, the prisoner receives a certificate of discharge in the form of an unconditional pardon.
- A more detailed account of the working of the Crofton System, with a description of the present state of the intermediate prisons, founded on personal observations and the most recent public documents, is given in a despatch from the Hon. J. D. Wood, which will be found in the Appendix to this Report.
- Before entering on the details of that modification of the Crofton system which it is proposed to establish, it will be necessary to state our views and conclusions on the subject of the existing gaols.
- A circular letter was addressed to each of the sheriffs, containing a list of questions relating to the condition of the various gaols under their supervision, and asking for suggestions as to improvements in management and other practical details. From the replies returned it appears that, on the 31st August 1870, there were in existence ten gaols (including Melbourne), in which were confined 492 male and 148 female prisoners undergoing sentence and also 45 persons awaiting trial. Other particulars will be found in the Appendix.
- In the Government Estimates of Expenditure for 1871-2 the cost of the gaols is set down at £15,529 19s. for salaries, and £11,050 for maintenance, making a total of £26,579 19s. For Melbourne gaol the cost of supervision only is £5193 7s., which gives an average of £19 10s. for each prisoner, exclusive of the fluctuating number of those awaiting trial; at Ararat the average is £31 11s. per head; at Ballarat, £21 18s.; at Beechworth, £23 2s.; at Castlemaine, £31 7s.; at Geelong, £21 14s.; at Kilmore, £55 14s.; at Maryborough, £33 1s.; at Portland, £38; and at Sandhurst, £29 10s. per head. The total average cost of each prisoner throughout the country is £41 10s. per head.
- These returns show that the plan of maintaining a number of small penal establishments throughout the country, each with its separate staff of officers, is very expensive to the State. But a graver objection arises – that it is wholly incompatible with the carrying out of a uniform and comprehensive scheme of penal discipline. When prisoners undergoing sentence are dispersed in small numbers through many places of confinement, each gaol governor will naturally carry out a method of his own, while at the same time it is impossible to make the labour of the prisoners profitable. The tendency of those establishments is, therefore, directly to perpetuate extravagance, and indirectly to encourage, by failing to repress crime. On the other hand, it is only by concentration of prisoners, organized industry, and systematic discipline, that the two great objects of economical management and moral reformation of criminals can be accomplished.
- It is, therefore, our opinion, that, at the earliest practicable period, the whole of the district gaols should cease to be places of imprisonment, and should be constituted gaols “of the first instance,” or places of detention, in which only persons awaiting trial, and those undergoing very short sentences for petty offences, should be confined. All other prisoners now in these establishments should be disposed of in the manner subsequently described.
- All the disabled, decrepit, or aged prisoners incapable of working, as well in Pentridge as in the gaols, should be sent to a place specially provided for them. The Geelong gaol would, in our opinion, be a suitable place of confinement for this class of prisoners.
- The able-bodied prisoners in the gaols should then be divided into two classes: (1) Those undergoing sentences of more than three years confinement, and (2) those committed for shorter periods. The former class should be at once sent to the Pentridge Penitentiary, and the latter to a House of Correction to be erected on the Pentridge reserve, in close proximity to, but not in communication with, the present prison. All prisoners summarily convicted of petty offences and sentenced to more than one month’s confinement should also be sent thither. By this arrangement, two material advantages would be gained: a uniform system of gaol discipline, and much greater economy of management. The entire criminal population of the country would be concentrated in one locality, and the possibility of abuses creeping into the general penal system would be materially lessened.
- In the district gaols “of the first instance” would be also confined all persons awaiting trial, all debtors committed on fraud summonses, persons detained in default of bail, and those summarily convicted of trivial offences, and sentenced to one month’s confinement and under. At present these classes of persons are subjected to the harshness and injustice of being sent to herd with felons. This evil would be avoided by the adoption of the plan here proposed; and at the same time the means would be afforded for making a thorough classification of prisoners of all grades, without which no efficient scheme of prison discipline can ever be brought into successful operation.
- With regard to Melbourne Gaol, it is to be regretted that it was made more than a receiving prison. Its proper use is as a place of detention for persons awaiting trial, and those undergoing short sentences upon summary conviction for petty offences. All prisoners now confined in it on sentences of more tan three years should be at once removed to Pentridge; the females, when the new workshops are finished, to the C division, as before recommended; those under three years sentences to the House of Correction, and those unable to labour to the gaol provided for them. This being done, a gaol “of the first instance,” should be erected in a suitable locality. The Government might then dispose of the area – nearly ten acres in extent – on which the gaol stands, with the buildings on it, in the most profitable manner; or a portion of the materials could be used in erecting the gaol “of the first instance” for the city. In no case, however, could the present fabric be made available for the purposes we have in view. Its situation in the centre of a large and populous city, its vast size, inconvenient arrangement, and the construction of the cells, render it wholly unsuitable both as a place of detention and as a disciplinary prison. The time has come, we think, when its removal has become necessary, both on grounds of public utility and convenience, and as an essential step towards the establishment of an organised system of prison management.
ADAPTION OF CROFTON SYSTEM.
- The question remains as to how far the Crofton system is capable of being adapted to the circumstances of this country. There cannot be a doubt that it has worked admirably in Ireland, nor that it is calculated to repress crime in a higher degree than any other scheme of penal discipline which has yet been tried. Its partial adoption in England, and the testimony borne to its value by eminent jurists and statesmen in all parts of the world, are conclusive arguments in its favour. The soundness of the abstract principles in which it is based; the careful minuteness with which its multifarious details have been wrought out; the manner in which each step in the disciplinary process is made to conduce to the same end, namely, the reclamation of the prisoner; the skilfulness with which the co-operation of the prisoner himself towards the attainment of that end is gradually elicited; and the sagacious blending of severity at one stage of the process with elemency at another; all these are elements in the Crofton system which hardly seem to admit of improvement. We Have therefore incorporated them, so far as possible, with the system we propose for establishment in Victoria.
- We say, so far as possible. For it must be stated, on the other hand, that Victoria differs widely from the older countries where the system has as yet been tried, in the varied national character of its population, in their social circumstances and industrial pursuits, in its most prevalent crimes, in geographical features, and it must be added, in the facilities for obtaining intoxicating liquors. These are all essential considerations in the case before us. The principles of the system – namely, the individualization and reclamation of the prisoner – are applicable to any country, but the details require modification according to the peculiar circumstances of each. Thus, we propose to simplify the system of “marks,” by which the prisoner’s progress from stage to stage is recorded, so as to preclude the possibility of favouritism; to shorten, from eight months to six, the term of solitary confinement; to reject the plan of discharging prisoners upon licenses; and to make the supervision in the third stage much more strict than it is in the Crofton system. It would be simply impracticable, we may remark, in a country like this, where escape across an inland frontier of very great extent is exceedingly easy, to establish the plan of outside working without supervision which is in operation at the Lusk farm, or even to grant the license accorded at Smithfield.
- As regards able-bodied prisoners sentenced to three years’ imprisonment and upwards, the details will be as follows:-
- FIRST STAGE. – A uniform term of six months’ solitary confinement will be substituted for the present graduated scale. But the term may be extended to seven, eight, or a maximum of nine months, as a punishment for misconduct. A daily record will be kept of the prisoner’s conduct, and of the amount of work performed; his physical power and mental capacity for work being first estimated and registered.
- Employment in Solitary Confinement. – The employment in this stage must of necessity be such as can be carried on by one person in a cell. Skilled workmen who can be so employed will work at their trades; and unskilled will be sent to oakum-picking, mat-making, &c., as at present. This being the punishment stage, and as attendance at school necessitates association, the prisoner will be allowed books for perusal at leisure time; but the main object will be to teach him habits of steady labour. The hours of work will be the same as at present.
- SECOND STAGE. – on his release from solitary confinement, the prisoner will pass into the B division, and be employed in the workshops. Unskilled labourers, found incapable of being taught a handicraft trade, may be profitably engaged as assistants in the workshops, and in various minor ways. In each workshop a daily register will be kept of each man’s conduct and work performed, estimated according to his personal capacity for labour.
- Progress through the Second Stage. – The prisoners in this stage will be divided into four classes. Each prisoner, on entering, will be placed in the fourth (or lowest) class, and his progress upwards will be regulated by the number of marks awarded him by the Board of Honorary Visitors subsequently described, who will periodically inspect the daily registers, and allot each man’s mark. No money allowance will be given to the prisoners in this stage; but a shortening of the term in the first class may be granted for continued good conduct in the three lower classes. The maximum time spent by a prisoner in this stage will be one-half of his entire sentence; and this may be abridged by one-fourth, (or one-eighth of the whole sentence); the time subtracted being added to his term in the third, which will be the most desirable stage for the prisoner himself, and the most profitable to the State.
- THIRD STAGE. – When a prisoner has passed through the second stage, he will be removed to a separate workshop in another division of Pentridge, or transferred to public works outside the establishment, under the conditions hereafter specified. In this stage also, as in the second, there will be four classes, and the prisoner’s progress will be regulated by marks. For each class there will be a graduated scale of money allowances, and the prisoner will be allowed to spend a small portion of his earnings in permitted indulgences. The general period of confinement in this stage will be one-fourth of the entire sentence; the one-eighth of the sentence gained by well-conducted prisoners in the previous stage being in such cases added.
- Scale of Money Allowances in Third Stage. – The scale of money allowances should be fixed and strictly observed.
- FOURTH STAGE. – Having completed his probationary term in the third stage, and if no complaints for misconduct have been registered against him, a prisoner will be allowed the option either of continuing on the public works for the remainder of his period of sentence, or of working at his trade in Pentridge, at wages somewhat below the current rate. Or, he may pass into private employment, upon conditions to bi in each case arranged by the Board. The whole of the wages contracted for (with a small deduction), will be retained by the Board on the prisoner’s account until his discharge. The utmost time spent by any prisoner in this (the final) stage will be one-fourth of his entire sentence, less six months. It may be added that there are numerous minor details of management in this and the previous stages which can only be regulated by the personal supervision of the Board.
- Discharge of a Prisoner. – When the full term of his sentence is completed, the prisoner will be discharged, and a portion of his earnings given him by the Board, who will retain possession of the balance until they are satisfied that he is following some honest occupation, so as to prevent his recklessly expending his means. The Board will endeavour, in conjunction with the local Aid Societies mentioned afterwards, to procure employment for discharged prisoners of good conduct; and it must be strictly forbidden to the police to interfere with or inform upon such men. Any attempts on the part of previous fellow-prisoners to extort money from them by threats of informing should be made a punishable offence.
- Employment on Public Works. – It will be the duty of the Government to project public works of a useful and necessary character on which prisoners in the third stage may be profitably employed. The defence works (on which prisoners have already been engaged) may be cited as an example. To these might be added, the improvements of harbors and river mouths, quarrying and stone-cutting for Government departments, the making of canals and storage of water, road-making in remote and difficult localities, and many other works of a similar kind.
- Dietary Scale. – The dietary scale in each stage we recommend shall remain as at present. When a prisoner is actively employed, it is necessary that he should receive daily an allowance of food sufficient to sustain him in health and full working strength. No cause acts more powerfully in making prisoners sullen and insubordinate than insufficient food. It is, besides, the duty of the State, as well as its interest, to discharge a prisoner in a physical condition fitted to enable him to earn his living by labour. When prisoners are unemployed, or are kept in solitary confinement, a reduced ration may be given, as at present. In most of the dietary scales of other countries which we have examined there is a much smaller amount of animal food than in the Victorian scale; but the deficient quantity is made up by milk and other aliments which are elsewhere cheaper, but are in Victoria dearer, than meat.
- Instruction of Prisoners. – The prisoners in the second and so far as practicable in the third stage will be taught in school for two hours every evening. The ordinary teaching will be varied occasionally, as in the Crofton system, by lectures, conversational discussions, and lessons in part singing. And every prisoner should have explained to him the nature and advantages of the system of reformatory discipline he is undergoing.
- Penalties for Misconduct. – A prisoner guilty of misconduct may be punished, at the discretion of the Board, on the report of the Visiting Justice, by forfeiture of the whole or part of the money registered to his credit, or by being put back one or more stages, according to the gravity of his offence.
- Limitations of its application. – We do not feel justified in departing from the principle of the Crofton system, that in no case should a prisoner be allowed to pass through the process of reformatory treatment a second time: such offenders will be kept in the first and second stage during the period of their subsequent sentences.
- The prisoners confined in the House of Correction will be subjected to a process of reformatory treatment based in the same principles as those to be adopted in the Penitentiary, into the details of which it is not necessary to enter.
- The proper employment of female prisoners in the Penitentiary, and the best method of disposing of them upon their release, are questions which must be left to the decision of the Board of Visitors.
- In addition to the recommendations as regards Warders already given in the Report on Pentridge, we think it advisable to suggest that a certain limited number of the police force might with advantage be employed as vacancies occur in the present staff. Two years might be fixed as the term of engagement, the time being reckoned as service in the force. At the end of the term the officer would be replaced by another, and would return to his ordinary duties. By this arrangement the police force would gain a “face-knowledge” of the criminal population, and the periodical changes in the staff of Warders would prevent favouritism and other abuses.
BOARD OF VISITORS.
- In the Progress Report the appointment of a Board of Honorary Visitors of Gaols and Penal Establishments was recommended.
- We consider such a Board indispensable to carrying into operation the system of discipline just detailed. Its functions would be of a strictly supervising nature. It would be required to see that the instructions of the Government, founded on this and the previous Reports, were duly carried out; to watch carefully the operation of the system of discipline proposed; to suggest to the Government from time to time such modifications and improvements as experience might show to be necessary; to recommend the best means of making the labour of the prisoners profitable to the State; to arrange in each case the mode and terms on which a prisoner may pass into private employment; to adopt means to find such employment for discharged prisoners as may be best suited to their individual capacity, and may at the same time serve to withdraw them from their previous haunts and associations, and thus prevent their resorting to crime for immediate subsistence; to help in the formation of local Prisoners’ Aid Societies, by whose means fitting employment may be found in districts remote from the capital; and to watch over the career of prisoners subsequent to their discharge, with the object of preventing, so far as possible, their relapse into criminal courses.
- The success of the Irish system, which has been so marked, is mainly attributable, according to Sir Walter Crofton, to the careful minuteness with which the details are carried out under the personal supervision of the Board of Directors appointed by Act of Parliament. There cannot be a doubt that the same principle applies universally. The establishment of an independent Board, holding an intermediate position between the Government and the officers within the establishment, is in fact an essential condition of the effectual working of the proposed system, which is based on the individualization and treatment of each prisoner.
- In England, the following Irish model, a Board of Directors of Convict Prisons was established subsequent to the Penal Servitude Act Amendment Statute of 1864. In America, prison associations, formed voluntarily by the citizens themselves, are formally recognized and protected by Acts of the State Legislatures. The Prison Association of New York, for instance, was incorporated by the Legislature in 1846, and it annually presents a report of its proceedings, which is laid in the table of the two Houses. The objects of this association, as stated in its Act of incorporation, are as follows:-
- The amelioration of the condition of prisoners, whether detained for trial or finally convicted, or as witnesses.
- The improvement of prison discipline and the government of prisons, whether for cities, countries, or states.
- The support and encouragement of reformed convicts after their discharge by affording them the means of obtaining an honest livelihood and sustaining them in their efforts at reform.
- In England and in most of the countries of Europe societies of a similar nature are in existence, all more or less sanctioned and recognized by the Government. A very large amount of benefits results both to society at large and to the criminal class individually from the operations of these associations. But a voluntary society having the same objects, even if it could be established in this country, would not possess the powers and means of operation held by such a Board as is here recommended.
- The adoption of the foregoing suggestions will necessitate a revision, and some alteration, of the Criminal Law.
- We must be allowed to reserve for a future time our report on the remaining subject referred to us, namely, the working of the Industrial and Reformatory schools.
All which we have the honour respectfully to submit to Your Excellency.
23rd May 1871.
WILLIAM F. STAWELL,
SAMUEL H. BINDON,
W. H. F. MITCHELL,
C. MAC MAHON.