236 



March iO, 1906. 



THE INDETERMINATE SENTENCE. 



Now that the indeterminate sentence has taken 

 root in Australia, it will interest lovers of reform to 

 read the criticisms upon the general question by 

 Mr. S. J. Barrows, of America, President of the In- 

 ternational Prison Congress, in I'/ie Outlook of Satur- 

 day, January 6th. 



As most of our readers are already aware, the in- 

 determinate sentence is now a part of New South 

 Wales law, and it is pretty certain that it will not 

 be very long before the othv-r States follow her 

 example. 



The indeterminate sentence, like that of Juvenile 

 Courts, and the system of probation applicable both 

 to adults and minors, had its origin in the United 

 States of Amercia. Juvenile Courts are a growth of 

 the last five years only. Probation has been on its 

 trial for twenty-five years, but the indeterminate 

 sentence has been in ojx-ration in some of the 

 States for the last twenty-nine years. The example 

 with regard to probation has been followed in some 

 degree in Britain and on the Continent. The idea 

 of the Juvenile Court has been commended to the 

 nations represented at the International Prison Con- 

 gress, but the indeterminate s<'ntence, although it 

 has had prominent advocates, has not yet been 

 adopted in any of them. 



The arguments for the indeterminate sentence are 

 the same all over the world, it is impossible to 

 construct a criminal code so that the penalty shall 

 exactly fit the crime or the offender. In our own 

 courts we have almost daily illustrations of the 

 inability of Judge and Magistrates to even faintly 

 conceive of the course of action which shall ap- 

 proximate most to an ideal fulfilment of perfect 

 justice. But here the indeterminate sentence comes 

 in, and gives the necessarv relief. Without it, the 

 Judge decides w-hen a man shall come out of pri- 

 son, but under the indeterminate sentence it put5 

 the main responsibility of deciding upon the prisoner 

 himself. The Judge sees to a fair trial, the jury 

 decides as to guilt, but the prisoner has it in his 

 own hands to make his term long or short. It pro- 

 vides the best environment it can under present 

 conditions, and makes it easier for him to do right 

 than wrong. It puts him under a whole range of 

 reformative influences, physical and intellectual, and 

 then gives him the opportunity to show when he is 

 fitted to be restored to societv. He is sriven certain 

 duties to perform, with a certain number of marks 

 attached. This means that he can graduate either 

 quickly or slowly as he chooses. Mr. Barrows goes 

 on to say: — "The indeterminate sentence is not, 

 then, a passive punishment ; it is something better ; 

 it is an active discipline ; it is an opportunity. It 

 is an opportunity for moral and intellectual enfran- 

 chisement which liberates the man from himself. It 



opens to him a new future. It means, not relent- 

 less suffering for something that he has done, but 

 relentless endeavour for something which he is to 

 become. The truest proof of re|>entance is re- 

 formation. No reformation can be secured without 

 suffering, the suffering of discipline; but the dis- 

 cipline whirh ref(irms is not the discipline which 

 crushes. 



" It is evident, then, that the indeterminate sen- 

 tence has no meaning unless it is connected with an 

 active reformatory system. To send men to prison 

 where there is no labour, no schools, no incentive 

 to self-development, is merely a parody upon the 

 true principle of the indeterminate sentence, which 

 is a very different thing from a definite sentence 

 shortened a certain number of months for good be- 

 haviour. It is important to sound here a note of 

 warning. (.V-rtain Slates have adopted what they 

 call a parole system. Men cire released condi- 

 tionally after they have served a certain time. Their 

 eligibility for parole does not depend upon what 

 they have done in prison, but on what they have 

 not done. They have observed a somewhat easy 

 set of prison rules ; they have given the keepers no 

 trouble. Habitual criminals easily adjust them- 

 selves to such rules. Such parole laws may not be 

 entirely valueless, but they are in no respect synony- 

 mous with the indeterminate sentence ; they are 

 calculated rather to bring it into disrepute." 



Mr. Barrows goes on to suggest that the indeter- 

 minate sentence should have no time limit, either 

 minimum or maximum. The reason for this, of 

 course, is quite apparent. If the indeterminate sen- 

 tence is to be of any use at all, it must be coupled 

 with a man's refonn, and no one can say when this 

 shall be accomplished, in time either long or short. 

 If a minimum sentence is imposed, the prisoner is 

 released probably before he should be, while if a 

 maximum sentence is imposed, if a man is not quali- 

 fied to be released before, he is certainly not then 

 in a fit condition to be released, and should be, as 

 an undesirable, still shut up. 



Advocates in the United States are urging that 

 the maximum limitation mav be removed. Some 

 European jurists have felt a reluctance to advocate 

 the indefinite sentence, because of the difiicultv of 

 safeguarding individual liberty. One can easily 

 imagine that in a country like Russia, an indeter- 

 minate sentence would have .such a hopelessness 

 about it as to suggest p>ermanence. Of course, the 

 maximum limitation is a safeguard against life-long 

 incarceration, and yet against that, it is manifest 

 that there are large numbers of offenders who ought 

 to be separated from society. Every time a con- 

 firmed criminal is released, he is given a fresh op- 

 portunity to offend against society again. 



