Indeterminate Sentences
By CHRISTOPHER HOLLIS
ry HE Home Secretary's Advisory Council on the
1 Treatment of Young Offenders* advocate the abolition of short terms of imprisonment. Youths should only be sent to prison for most exceptional and severe offences where a long term is neces- sary: for that and—a little surprisingly—for debt. Why they wish to retain imprisonment for debt k far from clear. A system of compulsory attach- ment of a proportion of wages would seem to be more sensible. However, the general proposal that youths should as a rule be sent to detention centres for training and for an indeterminate sentence is the important suggestion. It is in direct conflict with the Lord Chief Justice who would have short prison sentences and the birch.
The modern fashion is to argue that punish- ment should not be_ retributive: its purpose should rather be remedial—to turn a bad citizen by appropriate training into a good citizen: But there is a difficulty about this theory of remedial treat- ment on whiCh I cannot feel quite comfortable. We are all born in sin. We all doubtless require some discipline in youth so that we may become better citizens than we would if we were allowed to run wild. We do not object to all boys and girls .being submitted to a degree of compulsion in the name of education; we do not even object to .a youth being submitted to some special compul- sion if he can be shown to be mentally defective. But, once you call that compulsion punishment, then it is unjust that it should be inflicted unless an offence has been committed. To that extent, though it be the fashion to speak otherwise, there must be an element of retribution about punish- ment. We may decide entirely for remedial reasons what the punishment shall be. We decide on retributory grounds that there shall be a punish- ment at all. No one would think it fair that a magistrate should stop a youth in the street and say to him, 'You are obviously of the criminal type. It is true that you do not appear as yet to have committed any crime, but you are obviously going the way to commit one. Prevention is better than cure. So before you commit 3,our crime you had better go off for a spell of preventive deten- tion which may stop you committing it.'
Why it would be intolerable to argue like that is not exactly easy to say. The obvious answer is that we cannot be certain that a boy is a potential criminal until he has proved it by committing a crime. But, even when he has committed the crime, in the bewildering debate about free will and 'determinism we have to confess ourselves very uncertain how far he was to blame. Our very
* TuE TREATMENT OF YOUNG OFFENDERS. (iStation- ery Office, Is. 9d.)
demand for an indeterminate sentence bears wit- ness to our uncertainty what methods of treatment will be effective. 'The length of the period neces- sary for adequate training,' says the report, 'can- not usually be judged before the sentence begins.' In other words we are trying not to punish one particular criminal action but to reform a general character.
Now it is obviously true that, if your object is remedial treatment, then the period to be served for that treatment must be to a large extent in- determinate; for there is clearly very little rela- tion between the gravity of a particular offence and the degree of corruption in the offender's character. An offender may commit some very serious assault--even, it may be, a murder—be- cause he is passing through some phase of un- balance which will very quickly remedy itself; or he _may be guilty of some petty pilfering, trivial in itself, but the consequence of some deep- seated complex which will require long and diffi- cult treatment for its cure. Now, if we were willing to be complete Samuel Butlerites, and say without qualification, 'Crime is a disease,' the problem would be easy. We could then explain to the offender, 'There is no element whatsoever of 'punishment in your detention. It is merely as if we were sending you to hospital.' But, when we have said all that we rightly do say about the influences of environment, we are not in the end quite prepared to admit that conclusion; and I think that we are right not to be so prepared. Although we are uncertain what is the degree of freedom possessed either by ourselves or by other people, yet we do feel that man has some freedom; and that we insult and degrade human nature if we treat him entirely as a laboratory specimen. Nor is it good to encourage youth to think that it has no sort of responsibilities for its actions.
Therefore there must be some element of retri- bution, along with the element of the remedial and the deterrent, in all punishments. The pretence that there is an 'either-or' between punishment being entirely retributory or entirely deterrent is nonsense. It is this which makes the difficulty about the principle of the indeterminate sentence. With the really grave crime this presents no prob- lem. We sentence the murderer to life imprison- ment and, if conduct and circumstances warrant it, we let him out after a time. That is all right. He has served less than his sentence—has been punished less (for those who like such language) that his crime deserves. But the problem of the young hooligan guilty of some petty but tiresome act of damage is more difficult. He has destroyed some property in high spirits. It is not an enor- mous wickedness, Yet society has a right to de-
mud that he shall not get off scot-free. What should society do?
If there is really reason to think that he has been guilty of some freak action, quite out of tune with his general character, and is never likely to do such a thing again, then the answer is obviously probation. No one, I think, would deny this. We do not want to bring youths to the detention centre if it is not necessary, and to throw a youth who is not essentially a criminal into company of criminals, whether of his own age in a detention centre or of adults in prison, is much more likely to make him a criminal than to cure him of crime. 1 could understand, though 1 would not for other reasons agree, had the Lord Chief Justice advocated the birch instead of a prison sentence. The birch and a prison sentence seems the worst cf both worlds.
But where there has to be a sentence to a deten- tion centre, then I do not think that the sentence should be indeterminate. It should be for the maximum period. If the offender behaves well, if he gives evidence that he is reformed, then of course there can be remission, and we all hope that in the majority of cases there will be large remission. But I think that it is of considerable metaphysical and _psychological importance that an offender who is detained should know that he is detained because of the offence that he has com- mitted, and not because of a vague general defect in his character. In a free society it is right that he should be released before his time because of a good character. It is very wrong that he should be detained beyond his time because of a bad character.
Previous page
