INTRODUCTION 1
Norval Morris *
1. CLASSIFICATION AND DEFINITION
Scientific progress in criminology, as in other disciplines, depends
on analysis and artificial isolation. For many centuries the considera-
tion of “crime” as distinct from the consideration of “criminals”
inhibited the development of criminology and confined discussion
on oriminal law and its place in society to ethical and philosophical
homilies. This condition was analogous to pre-Darwinian evolution
and pre-Newtonian physics. It was owing largely to the influence
of Lombroso ithat -the criminal became a subject of scientific obser-
vation; the necessity for notional classification followed.
Lombroso’s classification (adopted by many later writers, in-
dluding Havelock Ellis amd Enrico Ferri) incorporated the following
groups: the born criminal, the insane criminal, criminals by passion,
occasional criminals, and habitual criminals. The progress of re-
search has established that several of these groups are of no scientific
vailue and has, of course, varied their content considerably. Never-
theless, the insane criminal -and the habitual criminal are two of
these groups that have stood the test of analytic investigation and
remain in the forefront of any modern objective classification
of asocial individuals. 2 In particular, the “habitual criminal” has
remained the title of a separate group, a group distinguished both
legally and theoretically from the mass of criminals. There are very
few modern legal systems which do not treat the habitual criminal as a
criminal requiring either additional or special sanctions. Similarly,
there is no theorist of any standing who has not recognized that how-
ever successful the measures he advocates for -the majority of crimi-
nals may -prove, there will be a group with whom all these measures
will fail. Normally the term “habitual” is applied to such criminals.
1 Reprinted from “The Habitual Criminal” New York, Longmans and Green,
1951 with the kind permission of the publisher and author.
* Professor of Law, University of Chicago.
2 1 say “objective classification” because psychiatric and psychological research
increasingly stresses the importance and significance of the classification of all
criminals and delinquents into psychological types –
a classification in which
the offence, which was the fundamental of objective classification, is regarded
as but a symptom for purposes of subjective psychological classification.
No. 4]
INTRODUCTION
and even then only perhaps –
Who, -then, are “habitual criminals”? There is much support for
the view that “only jurists ask for definitions. Everybody else knows
that a definition can only be properly given at the end of an investi-
because it will of necessity
gation –
be incorrect. For, as a matter of fact, the science on which the defini-
tion is based is never complete.’ 3 Such a view rests on a fundamental
confusion between nominal definitions, by which temporary agree-
ment is reached, a practical working resolution made concerning a
verbal symbol, and real definitions which seek to incorporate an
analysis of the verbal symbol. Unless ostensive definition is possible,
which is rarely the case in criminology, some sort of nominal or
verbal definition of one’s basic terms is necessary. Admittedly every
such nominal definition “depends necessarily upon one’s perspective,
i.e. it contains within itself the whole system of thought representing
the position of the thinker in question.”‘ 4 But this must not prevent
us from reaching some working agreement on the terms which are
fundamental to this study, the whole purport of which is the search
for a real definition of “habitual criminal”. As Aristotle affirmed,
“the basic premises of demonstrations are definitions.”‘ 5 In seeking
nominal or verbal ‘definitions, however, we must endeavour to relate
them to the actual forces that condition them in reality, so that at
the end of our investigation the real definitions that emerge are
amplifications, reconstructions and analyses of our nominal defini-
tions.
Persistent Offender, Professional Criminal, Incorrigible Offender,
Dangerous Recidivist (Finnish law of 1932), Hardened Offender, Rel-
egable, Habitual Criminal, and many similar terms are used to
define certain groups of recidivists against whom various countries
are prepared to take special measures to protect themselves, – meas-
ures usually involving their protracted segregation from society.
Those countries which make use of this conception of the habitual
criminal, define its scope in relation to some or a’l of the following
factors:-
1. Number of crimes committed by an offender (sometimes
over a certain period or since a certain age).
2. Type(s) of crimes committed by an offender (sometimes
over a certain period or since a certain age).
3. Seriousness of offender’s last crime(s) (.and sometimes period
since commission of previous crime).
3 Winkler, quoted by Bonger: An Introduction to Criminology.
4 K.Mannheim: Ideology and Utopia, p. 177.
5 Aristotie: Posterior Analyticus, in Works, ed. by W. D. Ross, Vol. I,
1928, p. 90 b.
McGILL LAW JOURNAL
[Vol. 13
4. Number and type(s) of punishments he has undergone (some-
-times over a certain period or since a certain age).
5. Extent of danger to public presented by such type(s) of
crime.
6. Extent of danger to public presented by such an offender.
7. Age of the offender.
8. Mental condition of the offender.
9. Biological and social background of the offender.
10. Susceptibility of the offender to reformation.
A nominal definition would be too unwieldy were it to include
all such factors. Let us, therefore, while bearing these factors in
mind, seek the principal conceptions that go to the composition of
the species “habitual criminal”. The Oxford English Dictionary de-
fines “habitual” as “inherent or latent in the mental constitution”
and also defines it as “existing as a settled practice or condition;
constantly repeated or continued”, and thus includes subjective as
well as objective elements, or to ,put it more bluntly and less accu-
rately, a mental pattern plus conditioning experiences. We shall use
“habitual criminal” to include both these elements, and add one
more; that the offences with which the community is threatened,
when such a criminal is not segregated, are regarded by that com-
munity as of appreciable danger to its ordered existence.
The three elements which we include in “habitual criminal” are,
then,
(a) criminal qualities inherent or latent in the mental constitu-
tion;
(b) settled practice in crime;
(c) public danger.
It will be seen that the ten factors listed above can be divided
amongst these three elements.
Before leaving these problems in semantics it is necessary to
comment briefly on the three elements in our nominal definition
of “habitual criminal”.
First, it is important that by the use of the words “inherent or
latent in the mental constitution” there is no implication of pre-
judgment on the relative importance of inherited and environmental
factors in conditioning those “criminal qualities”. This phrase refers
to a condition and seeks -to avoid any decision as to the actiology
of that condition. Quite arbitrarily let us exclude from the conception
“habitual criminal” those certifiable under English law as insane
or mentally deficient.
No. 4]
INTRODUCTION
Secondly, there is some support for the view that “settled practice
in crime” is not a necessary element of habitual criminality and
need not therefore appear in its definition. Supporters of this view
hold that we may well be able to recognize and to isolate the “ha-
bitual virus” even before that “virus” has been involved in an aip-
preciable number of offences and punishments, or even before the
criminal possessing it has become a recidivist, or indeed even before
he has faced a criminal court. “Habitual criminal”, then, should be
defined only in terms of the elements (a) and (c) above. This is
the extreme position taken up by certain modern Positivists adopting
a medical approach to criminology and basing treament-punishment
exclusively on the social dangerousness of an offender or potential
offender. It completely excludes the conception of nulla poena sine
lege and wou, ld appear to exaggerate the adequacy of our existing
knowledge.
Thirdly, it must be appreciated that the danger any particular
offence or type of offender is thought to present to the community
will vary from one legal system to another.
To recapitulate: an “habitual criminal” is “one who possesses
criminal qualities inherent or latent in his mental constitution (but
who is not insane or mentally deficient); who has manifested a settled
practice in crime; and who presents a danger to the society in which
he lives (but is not merely a prostitute, vagrant, habitual drunkard
or habitual petty delinquent)”.
2. THEORIES OF PUNISHMENT
No one theory explains the different punitive measures to be
found in Anglo-American criminal law. They can be explained only
by the existence of different conceptions, conscious and unconscious,
at the time when -they were respectively introduced.6 This is not
an adverse criticism of such measures, for frequently subsequent
rationalization of practical experience tends more to true justice
than any rigid adherence to theoretical preconceptions. On the other
hand it might be expected -that there would, at the present time, be
widespread agreement as to the end we now hope to achieve by our
penal sanctions. The contrary is the case. One can still agree with
Kenny who wrote that “it cannot be said that the theories of oriminal
0″The influence of any doctrine or idea depends on the extent to which it
appeals to psychic needs
in the character structume of those to whom it is
addressed. Only if the idea answers powerful psychological needs of certain
social groups will it become a potent force in history.” Fromm, The Fear of
Freedom, p. 54.
M06ILL LAW JOURNAL
[Vol. 13
punishment current amongst either our judges or legislators have
assumed… either a coherent or even a stable form.”7
Nor is this condition peculiar to our society. Malinowski, con-
sidering -the reactions to this same problem of the Melanesian
inhabitants of a part of the Trobriand Archipelago, wrote: “We
have found that the -principles according to which crime is punished
are very vague”, and that this was so because “all the legally effec-
tive institutions … are.., means of cutting short an illegal or in-
tolerable state of affairs, of restoring the equilibrium in social life
and of giving vent to the feelings of oppression and injustice felt
by individuals.” s
But because neither the primitive tribe nor a highly complex
civilised society seek any single conscious purpose through their
penal sanctions, we must not suppose that we are facing an academic
and impractical problem. When a court decides what sentence to
impose on the criminal convicted before it, even though limited by
maximum and minimum punishments fixed by the legislature, it
must so decide with reference to some purpose or purposes, conscious
or unconscious, articulate or inarticuate. To refuse to define an aim
for the sanction imposed is to make Pilate’s choice, and to give way
to the emotions of others, or indeed to one’s own emotionaq motiva-
tions. Herein lies one of the most deep-rooted causes of the fortui-
tousness of penal sentences by which bigamist A will serve a term of
six months’ imprisonment, while bigamist B (who adduces equally
mitigating circumstances, is of a similar psychological type, but
appears before -a different bench) will serve a term of three years.
My readers will be familiar with many such examples, of which a
multiplicity will be found in the case records analysed in Part II of
this work. For the legislator, and everyone connected with the penal
system, this is a fundamental and challenging problem.
In considering
‘punishment” one is faced immediately by a
semasiological difficulty; there are few words more heavily charged
with subjective emotional and intellectual overtones. Let me avoid
this by insisting that “punishment” is here used as a symbol for
society’s official reaction to crime, and does not necessarily connote
either the swish of lashes or the soft dripping of sentimental tears.
Hanging, imprisonment, Borstal detention, approved school training,
probation, fine –
these are all “punishment”.
7 Kenny, Outlines of Criminal Law, 15th ed, p. 38. Kenny wrote this in 1902
in the first edition of his book, and it has remained unaltered throughout all
editions to the revised 15th in 1947. It is still an incontrovertible contention,
s B. Malinowski, Crime and Custom in Savage Society, pp. 98 and 99.
No. 4]
INTRODUCTION
Prevention, reformation, deterrence, retribution, expiation, the
Kantian argument that punishment is an end in itself, all these
mingle in the wild semantic -and dialectic confusion which constitutes
most discussions on the purposes of punishment. Legislators, judges,
prison administrators, wardens, interested members of the public,
and prisoners themselves, all express their own particular and widely
varying rationalizations of punishment. But to point to this diversity
is not to advance a demand for ultimate truth, -and “it is doubtful
that a wholly satisfactory explanation of the existence of punish-
ment can be made” 9 ; it is merely suggested that a compass is de-
sirable by which to guide oneself, even if only for a short distance
and over a particular part of the journey. It is this desire that has
prompted philosophers and jurists, at least since Plato and Aristotle,
to give a great deal of their attention to this problem.
The ‘aim of punishment is concealed by its relationship with the
vexed issue of determinism and free-will, “which finds no end, in
wandering mazes lost”. Certainly the increasing adherence to a
determinist philosophy has been contemporaneous with a movement
away from a retributive-expiative theory and towards a utilitarian
conception of the purpose of punishment. Vengeance, retribution,
expiation, atonement have lost much of their conscious influence,
but, as I shall show, their present emotional power is great. In an
excellent brief survey of theories of punishment Professor Paton
contends that “to-day the usual legal approach is utilitarian, for it
is recognized that the law cannot attempt to carry out all the dic-
tates of religion or morality, but can enforce only that minimum
standard of conduct without which social -life would be impossible.”
For the time being let us accept this conclusion.
However, within a broadly utilitarian approach there are many
subsidiary purposes receiving general support and which fall con-
veniently under three main headings –
deterrence, prevention and
reformation. It is clear that even those who seek a utilitarian pur-
pose through punishment are far from agreed concerning these sub-
headings. The contrasting views of some eminent thinkers will prove
this point:
Sir John Salmond: “The ends of criminal justice are four in number, and
in respect of the purposes so served by it, punishment may be distinguished
as (1) Deterrent, (2) Preventive, (3) Reformative and (4) Retributive. Of
these aspects the first is the essential and all-important one, the others being
merely accessory. Punishment is before all things deterrent, and the chief
0 Reckless, Criminal Behaviour, p. 257.
10 G. W. Paton, A Textbook of Jurisprudence, p. 348.
McGILL LAW JOURNAL
[Vol. 13
the corrective
end of the law of crime is to make the evil-doer an example and a warning
to all that are like-minded with him.” 11
The Most Reverend William Temple, speaking of the deterrent aspect of
penal action, affirmed that “it is morally justifiable provided that it is
subordinate.” 12
Oliver Wendell Holmes, Jr.: “Most English-speaking lawyers would accept
the preventive theory without hesitation,” and
later, “prevention would
accordingly seem to be the chief and only universal purpose of punishment.” 13
S. and E. Glueck: “For the vast majority of the general run of traditional
crimes and criminals,
(reformation) … should
predominate.” 14
Not only is the juxtaposition of these views starbling, but their
existence is of great significance for legislative, judicial and adminis-
trative practice.’ 5 For practical purposes there is supposed to be an
antithesis between deterrence and reformation, and there has been
a tendency to contend, that “there is thus a conflict in each case
between -the needs of a particular ,prisoner and the social interest
in enforcing the law. What may be the best treatment for a criminal
may confliot with the necessity of deterring others. The real problem
is therefore to combine the deterrent and reformative theories in due
proportions.”’16 Sir John Salmond doubted the feasibility of this,
contending that “it is plain that there is a necessary conflict between
the deterrent and the reformative theories of punishment.” 17
theory
There is a frequent confusion between means and ends. Deter-
rence per se can never fully justify -punishment, nor indeed can
reformation outside Utopia. The end, as it is frequently stated, is
the protection of society. Punishment is certainly not the only social
force working towards this end, but it is an important one of them.’
11 Salmond, Jurisprudence, 10th ed., p. 111.
12 In 1934, as Archbishop of York, in the first Olarke Hall Lecture, published
as The Ethics of Penal Action, p. 34.
13 Holmes, The Common Law, pp. 43 and 46. It is worth noting that many
leading jurists have subscribed to this view, as Kenny says in his Outlines of
Criminal Law, 15th ed., p. 32: “According to the most generally accepted writers
this hope
–
of preventing the repetition of the offence is not only a main object, but the
sole permissible object, of inflicting a criminal punishment.”
as for instance Beccaria, Blackstone, Romilly, Paley, Feuerbach –
14 S. and E. Glueck: After-Conduct of Discharged Offenders, p. 97.
15 eI1 rbgne done une grande complexitM dans les buts de la peine; c’est elle
qui explique l’extr~me variUt6 des moyens r6pressifs.D Donnedieu de Vabres,
Traiti de droit criminel et de l6gislation p6nale compargc, 3rd ed., p. 276,
Paris, 1947.
16 G. W. Paton, A Textbook of Jurisprudence, p. 351.
i17 Salmond, Jurisprudence, 10th ed., p. 112.
Is In their acidulous book, Crime Law and Social Science, Michael and Adler
state a similar conclusion in an inverted way: “Punishment can be justified
only as an intermediate means to the ends of deterrence and reformation which,
in turn, are means for increasing and preserving the welfare of society.” p. 352.
No. 4]
INTRODUCTION
There is a dichotomy in the means punishment uses towards this
end, for it functions both in the macrocosm of society and in the
microcosm of criminals within society. First, in society as a whole,
though its function has not been fully explored, it would seem safe to
say that the individual’s super-ego, his inner tribunal or conscience, is
reinforced, and to a certain extent conditioned, by the existence
of formal punishments imposed by society; further, for some people
and for some crimes the existence of punishment prevents them as
potential offenders from becoming actual offenders, thus having a
generally deterrent effect. Secondly, in its relations to criminals,
it becomes the function of punishment to reform where possible, to
deter where possible, and generally to work on the offending crimi-
nal with the aim of rendering society safe from his depredations;
in effect, of removing him from the microcosm into the macrocosm.
In fact, “deterrence” is used in two senses: as one of the methods
of rendering society free from the criminal activities of an individual
who has been convicted of crime, and in the wider sense of its
operation on the minds of society at large.19 It is primarily in the
latter sense that Professor Paton and many others have suggested
that there is a conflict between deterrence and reformation, though
this conflict is also alleged to exist in relation to the treatment
accorded those who have offended against the criminal law.
It is my contention that the only reason that there appears to be
a conflict between reformation and deterrence is that the former
is a relatively recent arrival on the scene. By quoting the heritage
of the repressive systems of the past it is possible to make apparent
nonsense of the reformative aim, especially as until now it has drawn
its experience only from work with, and research on, the most malle-
able group of criminals, the youthful offenders. To most youths,
Borstal training holds a great deal more deterrence than the shorter
prison term that might alternatively be imposed.20 The point implicit
in that statement holds true of many of our reformative techniques,
and is reinforced by the fact that all such techniques involve indi-
vidualization, so -that the threat of what appears to him to be the
most severe punishment will always hang over the potential offender
and the -potential recidivist. Reformative techniques, with their
necessary corollary of individualization of punishment and the aban-
19 The distinction here drawn is the same as that between “special prevention”
and “general prevention” as these terms awe used in Continental literature.
It is unfortunate that such a useful terminological distinction has not gained
currency in this country.
20Every asylum for the insane gives manifest proof of the deterrent quality
of even -the most advanced reformative techniques.
McGILL LAW JOURNAL
[Vol. 13
donment of the “price-list” system (by which the offender if he
is so minded can, with reasonable accuracy, estimate his punishment
should he be convicted of a crime), will if anything strengthen
what deterrent effect punishment has on society and on the criminal.
Frequently it is the unpredictable quality of punishment that condi-
tions its deterrent force.
The whole answer to this suggested confl’ct must be sought in
classification of offenders and in an attack upon the problem of
crime on a wide front, suiting our weapons to their task. Then, in-
deed, there is no necessary antithesis between deterrence and reform,
and we may perhaps slowly exorcise from our conception of punish-
ment its primitive heritage of vengeance. But to do this we shall
need greater knowledge of reformative methods, and a greater under-
standing of the role that deterrence plays in the life of society.
Tentatively I would say that the effectiveness of deterrence varies
in inverse proportion to the moral seriousness of the offence; such
ideas, however, must be put to the proof of future research.
The real difficulty lies not in the reconciliation of deterrence
and reformation, but in blending
into our utilitarian pragmatic
approach to punishment the emotional requirements of the commu-
nity. If our task is, as was suggested above, the protection of society,
then we are undertaking to influence men’s actions by means of the
the exercise of
threat and actuality of punishment, wh’ch invoilvec
control over the emotional instinctual forces that condition such
actions. We must then include amongst those instinctual subjects of
our control a very deep-rooted hatred of the criminal, and a very
great reliance on him as the butt of aggressive outbursts. Writing
shortly after the controversies that surrounded the debates on the
Criminal Justice Act of 1948, one need hardly stress this point. As
Dean Roscoe Pound said: “Anglo-American lawyers commonly regard
the satisfaction of public desires for vengeance both as a legitimate,
and a practically necessary, end of penal treatment.”2′ Undoubtedly
there is almost universal inconsistency between the ends of social
protection and punitive retribution.
Our instinctual reactions to crime are two-edged in their oper-
ation. They condition the group’s opposition to the criminal and
thus provide the emotional prop on which punishment rests, and
they form the polarities of leniency and severity outside of which
the punishing authorities cannot safely proceed. Thus Julius Stone
writes: “Failure to visit what gro2p-members regard as an adequate
evil on violators, intensifies the retributive impulse, sometimes to
21 Criminal Justice in Cleveland, 1922 ed., p. 575.
No. 4]
INTRODUCTION
the point of lynch justice. Conversely excessive severity in relation
to the supporting group attitudes tends to -place the violator in the
light of a martyr. The frequent impossibility of getting juries to
convict when the number of capital offences in England was 160, in
the early nineteenth century, is well known. ‘ 22 These instinctual
reactions to the criminal are not even modified by the lex talionis
and are only controlled by a repression which attaches significance
to the fagade of a legal system in which the punishment of the
criminal has been taken out of the hands of the wronged individual,
his family or tribe, and given to a central authority. The punish-
ments this central authority imposes are, however, emotionally toler-
able to the community only so long as they do not fall below an
inarticulate but nevertheless perceptible pole of leniency.
We are but on the threshold of an understanding of this aspect
of punishment, and an adequate psychological investigation of the
function of judicial punishment in the lives of those who never come
before a criminal court is desperately needed. Inter alia, it might
well throw an entirely new light on our almost unchallenged con-
ception of ‘punishment as a potent deterrent force. Those psycho-
analysts who have interested themselves in criminology have begun
to open up this field of the psychoogy of the punishment community,
but until recently only sporadically. 23 A start has been made, how-
22 The Province and Function of Law, p. 684. It may well be that Part II of
the Prevention of Crime Act, 1908, exceeded what group-members regarded as
the pole of severity, and that this in no small measure accounted for the failure
of this legislation.
23 For example, K. Friedlander, in the Psychoanalytical Approach to Juvenile
Delinquency, writes (p. 192): “If progress is to be made in the treatment of
offenders it
is important to recognize the strength of the unconscious trends
which hinder any loosening of the connection between crime and punishment.
It
is also important to realize that ‘common sense’ alone is not an adequate
weapon against these unconscious tendencies. Common sense is very valuable
in all those instances where intellectual judgment is unhampered by unconscious
emotions. But it -is helpless against influences arising out of our own unconscious.
History, not in the field of criminal research alone, is full of examples showing
that only expert knowledge can remove prejudice based on unconscious motives.
The treatment of the insane before the emergence of psychiatric knowledge is
but one example of ‘the crass error of judgment committed by ‘common sense’.”
With this in mind it is interesting to consider Mr. Justice Stable’s advice to the
new magistrates assembled at Dolgelley on January 4th, 1949: “Have confidence
in yourselves. Do not imagine you have to be learned in the law. Do not worry
about the law but use your common sense. If you use it and find that it does
not tally with the law, then there must be something wrong with the law,
because common sense cannot be wrong.” I tremble for the sexual offender
coming before a magistrate who has accepted this advice and who finds such
a case emotionally disturbing.
McGILL LAW JOURNAL
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ever, and a considerable step forward taken by Paul Reiwald’s So-
ciety and Its Criminals2 4
Though our “idea of punishment has deep irrational roots”, and
though ‘psychology claims to detect unconscious motives for the
demand for punishment in man’s fear, in his insecurity, and even
in a sense of guilt which seeks satisfaction in the vicarious suffering
of the convicted criminal”, 25 there is no reason why we cannot logi-
cally examine the conscious superstructure of our punitive system.
There is indeed one other purpose of punishment which we cannot
overlook. It was presented most forcefully by Malinowski, who found
amongst the Melanesians that punishment was used quite consciously
to serve the needs of social cohesion within the group. This has
been supported as an important aim of punishment by many other
thinkers, for example, Sutherland, who contends that “respect for
law grows largely out of opposition to those who violate the law.
The public hates the criminal, and this hatred is expressed in the
form of punishment. In standing together against the enemy of their
values, they develop group solidarity and respect for the orders of
the groups.” 20
There is at present in criminology a conflict between philosophy
and psychology, between law and medicine, between ethics and em-
pirical knowledge –
a conflict based frequently on ignorance of
one another’s disciplines. For example, Dr. John Bowlby writes
that as weapons against crime “exhortation and punishment are
relatively fruitless and, indeed, unnecessary, since in every man’s
heart there is as strong a drive to co-operate with others as there
is in his body a drive towards health”,27 and Mr. Nigel Bridge replies
affirming that “by speaking as he does… Dr. Bowlby betrays his
distaste for the problems of good and evil, right and wrong. But
these problems are eternal and inescapable”. 28 Truly, it is not yet
appreciated that “sciences are of a sociable disposition, and flourish
best in the neighbourhood of each other”. 20 But the reconciliation
of this unfortunate conflict is beyond the scope of our subject. It is,
however, necessary to point to it before breaking off that section of
the problem particularly relevant to the treatment of confirmed
recidivists and habitual criminals.
24 Translated by T. E. James and published by Heinemann, London, 1949.
25MW. Griinhut, Penal Reform, p. 2.
26 Sutherland, Principles of Criminology, 4th ed., p. 358.
27 The Times, letter to the editor, December 20th, 1948.
28 The Times, letter to the editor, December 24th, 1948.
29 Blackstone, 1. Comm. 33.
No. 4]
INTRODUCTION
Punishment under the aegis of the criminal law is a jurispru-
dential problem. It has all too frequently been regarded solely as
a problem in ethics.
Professor Julius Stone in his monumental work, The Province
and Function of Law, defines jurisprudence as “the lawyer’s extra-
version. It is the lawyer’s examination of the precepts, ideals and
techniques of the law in the light derived from present knowledge
in disciplines other than the law”. 30 There is a remarkably close
analogy between the conflicting schools of jurisprudence and the
conflicting theories of punishment; and understanding will never
illumine either conflict while systematization, for its own sake, has
such influence, and knowledge gathered from other disciplines is
so hesitantly allowed to obtrude. When to theories of punishment
the criminologist brings an extraverted interest based on adequate
knowledge of those sciences in the light of which such theories must
finally be resolved, then perhaps order will emerge from the present
chaos in which it is necessary for virtually every writer of a crimi-
nological work to make his testament, to propound his approach to
the problem of punishment, and to relate his conclusions on this
point to the plan of his work. At present the psychiatrist regards
society’s official reaction to crime as ideally a therapeutic endeavour,
the lawyer as inter alia vindicating the law and preserving the
King’s Peace, the writer on juvenile delinquency as a pedagogic
problem, and so on. There is a nexus between all such people, but
it is far from defined, and it will never be defined while practition-
ers of diverse disciplines approach the problem of punishment from
their own particular premises.31
I realize that my contention that theories of punishment must
become the criminologist’s extraversion demands a definition of the
discipline of “criminology” if it is to be a practically useful sugges-
tion. This is a problem beyond the scope of my present purpose.
But the minimum requirement for a “criminologist” who animad-
verts to the purpose of punishment, and uses information gathered
30 The Province and Function of Law, p. 25.
31 A good example of this is to be found in Dr. A. C. Ewing’s brilliant book,
The Morality of Punishment, a summary of part of which was published by
Dr. Ewing in the Cambridge Pamphlet Series, English Studies in Criminal
Science, under the title of A Study on Punishment. Here the philosopher delves
in an incisive and comprehensive fashion
into the problem we have been
considering; but the influence of his work has not matched its worth. It
is
the specialist considering punishment from outside as it were, and as such
seems unlikely to have much effect until it is related to existing conditions
by receiving an extensive admixture of criminological understanding of the
problem it considers.
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[Vol. 13
from other disciplines, is a full, personal, emotional and intellectual
understanding of the actual functioning of the existing penal sanc-
tions, and of their effect on the individual subjected to them-a
much rarer understanding than one might suspect.
In the light of the above definition of the problem of punishment,
let us now consider the particular relationship between habitual
criminals and the purposes to be served by punishing them.32
3. THEORIES OF PUNISHMENT AND THE
HABITUAL CRIMINAL
Aristotle’s theory of moral accountability, developed in the fourth
century B.C., was formally introduced into jurisprudence as a technical
concept by Pufendorf who, in his Elementia Jurisprudentiae Univer-
salis published in 1660, used the term “imputability” (or “accountabil-
ity”), the essence of which was that for punishment to be just it
must be rationally related to moral culpability. The close links between
such a justification of punishment and an indeterministic freedom
of will are sufficiently obvious, and the conception of a free choice
between various possible courses of action was the essential condition
for, and the philosophic basic of, moral accountability, of imputability,
and therefore of penal responsibility. 33 “Imputability” was the fun-
damental tenet of the Classical School of Criminology, and constituted
its intellectual rationalization of the emotional force of retribution.
The will being free, the criminal’s offence being imputable to him,
each offence must be regarded as a single event, the result of a
distinct and individual choice between the alternatives of keeping
and breaking the law. Reinforcing this conception was the force of
religious belief which regarded the criminal’s offence as a sin to be
32 H1ardly a criminological or penological work fails to incorporate a chapter
on the theories of punishment. There is much in common between them. The
most complete English study on this subject it that of Dr. A. C. Ewing, referred
to above, while the most readable was written by George Bernard Shaw and
published as a preface to Sidney and Beatrice Webb’s English Prisons Under
Local Government (1922). Jerome Hall in his incisive General Principles of
the Criminal Law adopts what is to my mind the wisest course for the time being
in considering the theories of punishment. He relates his analysis of them
separately to each fundamental principle of the criminal law which he examines,
and does not attempt to define his standpoint generally. Thus, for example, he
considers the purpose of punishment in relation to criminal attempt and then
later in relation to strict ‘liability, and so on. By doing this he is able to find
for each topic a wider area of general agreement than he could were he to define
his ethical approach to the whole field of criminal law.
33An excellent account of “imputability”
is given by 0. Kinberg in his
Criminology, pp. 37-49.
No. 4]
INTRODUCTION
purged before God and man-to be expiated by punishment. The
identification of imputability with sin was achieved often with
difficulty, as for example in the case of lunatics who, being “demens
et furious, non per feloniam”,34 were not regarded as imputable or
accountable to the law for their crime, owing to their manifest in-
capacity to make an intellectual choice between alternative courses,
and who were regarded by the Church as possessed of evil spirits
or of the devil, and therefore not necessarily burdened with sin for
the offences they committed whilst so possessed.
If he were imputable and capable of sin, then expiation was at
once the criminal’s right and heavenly duty, and it was society’s task
to overcome any hesitancy on the part of the criminal in accepting
his expiatory suffering. Such an approach to punishment excluded
any classification of imputable sinful offenders for purposes of punish-
ment, and hence recidivism never arose as a problem in punishment.
Later, when the Classical School of Criminology predominated,
punishments were intended to be at once retributive and expiative,
and habitual criminality was no problem for a new reason. Punish-
ments tended by their very nature to exclude a subsequent com-
mission of any but the most trifling offences. If the larceny of twelve
pence is met by hanging, or, if the court is leniently inclined, by
transportation, there is remarkably little scope for the development
of any class of habitual recidivists. One might commit many serious
offences and in that sense be habituated to crime, but once the
ponderous and unsubtle mechanism of the criminal law had one
within its grasp there was little likelihood of the continuance of such
criminality. Theory fitted practice, for it will be noted that the
Classical School concerned itself predominantly with the justification
of punishment, not its purpose, and if it were necessary to inflict a
second expiatory punishment on the same individual that did not
suggest any failure of the punitive mechanisms.
In course of time sentences became less severe. In consequence
of diverse factors-the spread of humanitarian ideas; a slight shift
of the focus of attention from a preoccupation with the moral gravity
of the offence towards the particular offender; the emergence of
psychological and sociological thought; and above all, the realization
that an amelioration of punishment was not followed by an increase
of crime-criminal law in England, as in other countries, has resorted
less and less to extreme punishments. Thus habitual recidivism has
become a practical possibility.
34 Kentish Eyre of 1313 (Selden Society), 1, 81.
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[Vol. 13
This amelioration of the severity of penal sanctions has not
ostensibly developed from the idea embodied in the phrase “tout
savoir, c’est tout pardonner”, but has resulted rather from new moral
conceptions, which themselves spring from our increasingly teleolog-
ical approach to punishment and our increased understanding of
the sources of human conduct. The beliefs that have gone to the
formation of this approach “whether they appear to the particular
judge …
as correct or incorrect, or even if he is not conscious of
them, have still influenced his opinion, consciously or unconsciously,
directly or indirectly. And whereas to understand the crime does not
mean to forgive the crime, a healthy and necessary striving after
understanding has led, with psychological compunction, to milder
and milder sentences.” 35
The theoretical developments accompanying and conditioning the
teleological approach to punishment were initiated by Lombroso and
his disciples of the Italian School. They introduced into criminology
a new method, induction based on scientific research, and a new
interest, the criminal instead of the crime. Though the criminal
stigmata that Lombroso sought to define have been disproved by
later workers, notably Dr. Goring in England, 0 and were quite
possibly nothing but prison stigmata, it is to Lombroso’s everlasting
credit that his work turned men’s minds to the consideration of the
criminal as an individual requiring scientific
investigation. The
shift of attention from this to the consideration of the purpose and
the function of the penal sanctions which pressed upon him followed
logically. This incursion of psychiatry into criminology and the in-
sistence that the efficiency of a social institution could only be tested
by its beneficial effect on that society, led inexorably to the death
of the Classical School of Criminology. In its place there arose from
this teleological scientific approach to criminology a School that has
come to be called Positivist. In order to complete this sketch of the
broad lines of division on the theoretical plane, it is worth noting
that from the embers of the Classical School there was born, in the
neo-Olassical School, a conception of punishment and an approach
to criminology posited on deterrence.
Since the Positivist School of Criminology was, unlike its pre-
decessor, scientifically interested in the criminal, it was very much
35 Exner, Studien iiber die Strafzumessungspraxis der deutschen Gerichte,
Leipzig, pp. 27-8.
36 The writings of the Amerioan anthropologist, Dr. E. A. Hooton, though
tending .to revivify much of the substance of Lombroso’s basic contention, have
not supported his conception of criminal stigmata.
No. 4]
INTRODUCTION
549
concerned to classify him, one inevitable classificatory rubric being
the recidivist. And, again unlike its predecessor, being interested in
the purpose of punishment and its function within society, the Posi-
tivist School saw in the recidivist a manifest failure of that purpose.
Thus it was that the incorrigible offender, the habitual offender,
the confirmed recidivist, and the recidivist imposed-on a society
which regarded its penal sanctions as teleological instruments (and
it must be remembered that this was common both to positivists and
neo-classicists) the intellectual necessity of inventing special meas-
ures to deal with them; and since punishments had become of such a
nature that recidivism was physically impossible, this intellectual
necessity developed into the practical necessity of introducing such
measures into the criminal law so that “a modern criminal code
cannot be conceived without (them).”3
We thus return to the utilitarian conception of the protection of
society as the purpose of punishment. By definition society is not
protected from the habitual criminal by normal criminal sanctions.
Something more is needed, and we shall in Part I of this study
consider the special sanctions that are applied in different countries.
In so doing it will be helpful to keep in mind that no penal system
has ever rationally pursued its aims, and this for three reasons.
First, the rationality of an aim is directly connected with the state
of our knowledge (so that, for instance, a group which believes that
fire is divine acts rationally in feeding that fire with human sacrifice
to avert divine wrath). Seeing errors of “knowledge” in the past,
we are naturally sceptical of the true wisdom of our present aims,
doubting as we do the accuracy of the “knowledge” on which they
are based. Secondly, there is within all of us an attachment to old
customs, a reluctance to abandon at least the fagade of an institution
to which we have adhered in the past. Thirdly, there are hidden
personal desires, unconscious motive forces, which masquerade as
being for the benefit of society but which distract us from the pursuit
of a rational aim.38 Providing society had expended its best efforts
to protect itself from an habitual criminal and had used all the
practical means within its power to make him live a life that society
37 Timasheff, The Treatment of Persistent Offenders Outside the U.S.A.,
Journal of -Criminal Law and Criminology, Vol. 30, No. 4, p. 459.
38Thus to complete the analogy of the fire-worshippers: the three reasons
adduced in the -text why social aims are not rationally pursued will gradually
lessen the frequency of human sacrifice, will make those who are sacrificed be
of a type or group not desired by the society, and will lead evenitually to
symbolic sacrifice of animals instead of humans, and in similar fashion will
continue to be modified.
McGILL LAW JOURNAL
[Vol. 13
was prepared to tolerate, it would be rational to destroy him.30 It
would certainly be rational to keep him from again entering society.
But for the above three reasons, and because, in George Bernard
Shaw’s phrase, we lack “the ruthlessness of the pure heart” we but
rarely proceed to such logically complete conclusions.40
Nevertheless, we must strive to protect society from habitual
criminals. What, then, are the tools which lie to hand for labour
in this field?
4. THE INDETERMINATE SENTENCE
There is much confusion between the indeterminate and the
indefinite sentence. When a criminal lunatic is committed to Broad-
moor the period for which he will be detained is indeterminate; when
a youth is committed to a Borstal Institution the period for which
he will be detained is indefinite. To the former is set no bounds but
administrative decision; the latter though also governed by admin-
istrative decision functions within limits determined by the legislature
and the court-limits which control both the maximum and minimum
periods for which youths so sentenced can be detained. A sentence
fixing only either the minimum or the maximum term, and leaving
the exact date of release to an administrative authority, is likewise
indefinite.4’
The Inquisition occasionally imposed sentences “for such time
as seems expedient to the Church, 42 but it would seem that this idea
was not publicly advanced until 1787 when, at the home of Benjamin
Franklin, Dr. Rush of Philadelphia read a pamphlet on punishment
in which he advocated an indeterminate sentence for all criminals. 43
39 However, the German law of September 4th, 1941, which provided capital
punishment for certain habitual criminals, was not even a “rational” measure,
for the two conditions precedent we have specified had not been fulfilled.
4oAnother factor limiting completely logical measures is well and concisely
stated by Professor Julius Stone: “Even the punishment of the criminal, it is
recognized, must stop short of denying his humanity, for that denial draws
with it the denial of that of members of society generally.” (The Province and
Function of Law, p. 598.)
41 The rms “absolutely indeterminate” and “relatively indeterminate” are
commonly used to represent the distinction we have drawn between indeterminate
and indefinite sentences. On etymological grounds the indeterminate-indefinite
usage is preferable and is adopted by many American writers, notably by Barnes
and Teeters in New Horizons in Criminology.
42 Chrysostom: “I require not continuance of time, but the correction of your
soul; demonstrate your contrition, demonstrate your reformation, and all is
done,” Quoted by George Ives, A History of Penal Methods, London, 1914, p. 38.
43 See Barnes and Teeters, New Horizons in Criminology, p. 488.
No. 4]
INTRODUCTION
In the early nineteenth century the work of Obermaier in Germany
and Montesinos in Spain proved that the indefinite sentence could
indeed function, whilst Archbishop Whately of Dublin, and Living-
stone, the author of the Criminal Code of Louisiana, both published
works supporting the indeterminate sentence. In 1840, Captain Alex-
ander Maconochie took the first practical steps to implement the
indeterminate sentence for adult criminals in the penal colony on
Norfolk Island, 44 and his plan was copied and modified by Sir Walter
Crofton in Ireland. Though both these experiments eventually col-
lapsed under the weight of official prejudice, they had great influence
on subsequent penological developments.
Thus neither the theory nor the practice of the indeterminate
sentence is novel. Indeed, for the last seventy years it has been in
the forefront of criminological controversy. A huge literature has been
built up, and no useful purpose would be served by canvassing the
details of the arguments advanced. The broad lines of cleavage are,
however, worth mentioning as they have a bearing on the problems
of the indefinite sentence.
It is argued, in support of the indeterminate sentence, that at
the end of a trial the judge can have scant knowledge of the criminal
he has convicted, and none of his probable reactions to reformative
treatment. Therefore, the determination of the sentence to which
the criminal will be subjected should pass out of the judge’s hands,
and the offender should not be released until, in the opinion of those
who have observed his demeanour in prison and considered his back-
ground and the environment into which he will be conditionally
discharged, there is some likelihood that he will not again endanger
the community. This argument is frequently linked with a demand
for the establishment of Treatment Tribunals. 45 Many prison admin-
inistrators as well as theorists have supported these contentions. For
example, the well-known Declaration of Principles of the American
National Prison Congress in 1870 contained the recommendation that
indeterminate sentences should replace peremptory sentences, and
in 1925 at the International Prison Congress held in London, the
following resolution was carried: “(i, 3) Indeterminate sentences are
the necessary consequence of individualization of punishment and
one of the most effective means for the social defence against
criminality.”
44 Maiconochie, in arguing for an indeterminate sentence, contended -that “when
a man keeps the key of his own prison he is soon persuaded to Et it to the lock.”
Quoted in Barnes and Teeters, ibid., p. 548.
45 M. Mannheim, C7iminal Justice and Social Reconstruction, pp. 226-37.
McGILL LAW JOURNAL
[Vol. 13
The main point made by those resisting the introduction of the
indeterminate sentence is that only by adhering to the conception of
nulla poena sine lege in its application to punishnent can any defence
against official abuse be guaranteed to the individual; and to support
this they point to the development in criminology under totalitarian
regimes where “scientific criminology” was perverted to political ends.
In the absence of legal control of punishments they fear administrative
arbitrariness. Thus Jerome Hall contends that “the insight of the
common lawyer on these vital issues reflects the informed knowledege
of Western civilization. In the choice of alternatives, he knows the
value of legal control of official conduct, especially when the personal
rights of weak individuals are at stake. ’46
46Principles of Criminal Law, p. 53. Similarly, L. Radzinowicz in his article,
“The Persistent Offender”, at p. 167 of The Modern Approach to Criminal Law,
writes that “unless
indeterminate sentences are awarded with great care,
there is a grave risk that this measure, designed to ensure the ‘better protection
of society, may become an instrument of social aggression and weaken the
basic principle of individual liberty.”
