THE NEW CRIMINOLOGY 861 



a term of apprenticeship in a reform or industrial school, they might 

 be, and often were, paroled. This method of disposing of them had 

 yielded excellent results. But the postulate on which that law 

 rested was that a child of tender years, because of his immaturity, 

 is irresponsible for his acts, and, therefore, incapable of crime. No 

 similar claim could be made on behalf of the fully grown men com- 

 mitted to Elmira. And yet there must have been intellectual pre- 

 paration of some sort for so great an innovation in criminal law 

 and practice. What was it? 



The inequity of definite sentences had been demonstrated by 

 experience to the satisfaction of all competent observers. Almost 

 invariably the term of imprisonment named in the mittimus was 

 either too long or too short. The sentence of the court, nevertheless, 

 once pronounced, was immutable and irrevocable. The only alter- 

 native was an appeal to executive clemency. After the indeter- 

 minate sentence (so-called) had gone into effect in New York, in 

 Massachusetts, and possibly one or two other states, a comparative 

 study of all sentences for crime In force at the date of the Eleventh 

 Census (1890) was made, in the scientific spirit, by authority of the 

 Federal Government. The tabulated result, which is accessible in 

 the official report published by the Census Office, reveals in a striking 

 manner the lack of any principle of uniformity or of due proportion in 

 the distribution of imprisonment for given offenses, as between the 

 states, or even within the limits of any single state. The inference is 

 inevitable that the theory of adjustment of penalty to guilt, measure 

 guilt by what standard you will, is a myth, a figment of the imag- 

 ination, unsubstantial as a disembodied spirit and infinitely more 

 dangerous and harmful. 



The inequity of judicial sentences for crime having been once 

 established, the question arises, how to equalize them? What is 

 the remedy for the evil complained of? Of the three coordinate 

 branches of the government, two have attempted to establish and 

 secure penal justice, namely, the legislature and the judiciary. 

 Neither has succeeded. Obviously, the only remaining alternative 

 is to impose this duty upon the executive department. Has not the 

 governor of the state the power to grant pardons and commutations 

 of sentences? Yes, but the grant is an act of arbitrary sovereign 

 power. What Is needed is something quite different, to wit, the 

 establishment of a system under which the authorities who have the 

 custody of the prisoner, and who, being appointed by the governor, 

 are his representatives and agents, and are empowered to establish 

 rules, subject to executive (or even joint executive and judicial) 

 approval, governing the date and the conditions of the prisoner's 

 release. These officials are members of the executive branch of the 

 government. They are in a position to gain, by observation and 



