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The Persistent Offender

Published online by Cambridge University Press:  16 January 2009

L. Radzinowicz
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Extract

The persistent offender occupies, together with the juvenile offender, the central position in criminality, so that every investigation of the genesis and dynamics of his delinquency, and every elaboration of rational methods for curtailing his anti-social activities, must find a place among the fundamental tasks of modern criminology and penal policy. Hence, those provisions of the Criminal Justice Bill, 1938, which deal with the treatment of persistent offenders are undoubtedly of the greatest interest and of particular significance. They are also important because, unlike the other provisions of the Bill, they do not follow the lines set out by the course of evolution hitherto followed but absolutely break with the system established by the Prevention of Crime Act of 1908 (Part II), and they introduce one feature which is entirely new. As nearly all the modern Continental penal legislative systems have also introduced new modes of dealing with persistent offenders, an examination of the English system will be useful for comparative purposes.

Type
Research Article
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The Cambridge Law Journal , Volume 7 , Issue 1 , March 1939 , pp. 68 - 79
Copyright
Copyright © Cambridge Law Journal and Contributors 1939

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References

1 Thus, for instance, the Report from the Departmental Committee on Prisons (London, 1895) formulated this problem as follows: ‘To punish them for the particular offence in which they are detected is almost useless; … the real offence is the wilful persistence in the deliberately acquired habit of crime … (p. 31).

2 Naturally, this system does not exclude the possibility of applying normal or enhanced repression towards certain groups of recidivists. Most modern criminal legislative systems have adopted all three modes in order to attain a greater degree of individual treatment in legislation.

3 It is of interest to note that some of the Swiss cantons have introduced both the single and the twofold system, leaving the application of one or the other to the discretion of the Court (see, e.g., law of May 5, 1922, in Canton of Glarus),

4 See, inter alia, Denmark (Criminal Code of April 15, 1930), Norway (law of February, 22, 1929), Holland (law of April 5, 1929), Italy (Criminal Code of October 19, 1930), Belgium (law of May 11, 1930), Germany (law of December 24, 1933), Poland (Criminal Code of November 11, 1932), Finland (law of May 22, 1932), Latvia (Criminal Code of 1933), Yugoslavia (Criminal Code of January 27, 1929), France (draft of new Criminal Code of 1932), and Czechoslovakia (draft of the Criminal Code of 1926).

5 See Criminal Justice Bill (Bill 4). Explanatory and financial Memorandum, p. vii.

6 The introduction of the twofold system by the Prevention of Crime Act (1908, Part II) is to be explained by quite other considerations. The Bill presented before Parliament by Gladstone proposed the single-track system (absolutely indeterminate sentence), but Parliament, the more effectively to protect the rights of the individual and to restrict the application of the proposed law only to exceptional cases, not only insisted that the preventive detention sanction should be determinate (minimum five years and maximum ten years) but also made its application contingent on the last offence detected being a serious crime for which penal servitude must be inflicted.

7 See in connexion with the Austrian attempt: Exner, Die Theorie der Sicherungsmittel, 1914, pp. 157–161; with the German attempt of 1927: Freudenthal, Eeform des Strafrechts, publ. by Anschrott Cohlrausch, 1926, p. 169; with the German attempt of 1934: Exner, in a paper read before the Berlin Congress of 1935 (Section II, Problem 2); in connexion with the Belgian attempt in 1930: Cornil, La loi de defense sociale, etc., Brussels, , 1930, pp. 78–79Google Scholar; with the Italian attempt of 1932: Dybwad, Theorie und Praxis des faschietischen Strafvollzugs, Borna, , 1934, p. 59.Google Scholar See also new attempts to go beyond the twofold system established by the Italian Criminal Code of 1932: Grispigni, Corso di diritto penale, p. 121; Marsico, Natura e scopi delle misure di sicurezza, in ‘Rivista di dir. penitenz’, 1933, No. 6, p. 1235; Antolisei, Pene e misure di Sicurezza, Sassari, , 1933, pp. 24–25Google Scholar. Likewise the deliberations at the Inter national Penitentiary Congress at Berlin, , 1935, failed to reveal any basic differences between prison punishment and preventive detention sanction in spite of the great efforts made to find some.Google Scholar

8 This largely explains why judges so unwillingly inflict indeterminate sentences, particularly in those countries where the administration of penal justice is based on the doctrines of liberalism. Thus, for instance, although the law in Norway gave the Courts great powers with regard to certain groups of recidivists, for many years the judges took no advantage of the stipulations of the relevant law. See in this connexion, Garçon in the ‘Eevue Penitentiaire’ T. 33, p. 342. Undoubtedly in Great Britain, too, the same reason was at work: see in this connexion, Foltin, Die chronisch erhöht Vienna, Gefährlichen, 1927, pp. 24–33, and p. 127. It is interesting that even at present, the judges in Germany are showing some opposition; this was stated by Dr. Freisler in a paper read at the International Congress at Rome, 1938. This author, Secretary of State at the Ministry of Justice in the Eeich, affirmed that the indeterminate character of preventive detention ‘caused difficulties to arise in connexion with the psychology of the judges’ but (he added), ‘which we are trying to overpower’. See Freisler, L'experimento delle misure di sicurezza in Germania, in ‘Rivista di Dir. Penitenz’, 1938, No. 5, p. 1107.Google Scholar

9 See, in connexion with the danger of too freely using the term of ‘incorrigibility’ the excellent paper read by Dona Conception Arenal at the International Penitentiary Congress at St. Petersburg in 1890 which has to this day maintained its interest. See Actes du Congres Penit. Int., St. Petersburg, , 1890, vol iii, pp. 507–508.Google Scholar

10 The English system goes still farther along the lines of single-track action than a large number of other systems of the same type. Under the Swiss system, the punishment must be first inflicted after which it is supplanted by preventive detention. According to the Criminal Justice Bill, when the Court deems it necessary to apply corrective training or preventive detention, this is applied immediately without passing sentence of punishment.

11 The possibility of depriving such offenders of their liberty even for the period of ten years, is open to objections, particularly when it is considered that, according to the provisions of the Bill, the Courts may very often mete out preventive sanction for such terms. During the debate in the House of Commons, some of the members urged that the new law may have gone too far in this direction. See Official Report, November 23, 1938, col. 295, vol. 342, and Official Eeport, December 1, 1938, col. 638, vol. 342.

12 The Bill, however, says nothing of after-care organization. It would appear, on the other hand, that having introduced the preventive detention system, the State is under an obligation to guarantee first-rate after-care facili ties. As the State and the community, for their more efficient protection, introduce such sharp sanctions, they must at the same time do all that is possible to stop such offenders returning to a life of crime. Institutions for corrective training and preventive detention should possess after-care organizations identical with those applied in the case of the Borstal system.

13 In this respect, the Bill is not quite clear. Thus, in the case of corrective training, the Bill distinctly speaks of ‘reformation’ (and places the prevention of crime in a secondary place); on the other hand, in the case of preventive detention, the Bill speaks only of ‘protection of the public’. Sir Samuel Hoare stated clearly in his speech that the reformative object should be taken into consideration not only in the execution of preventive detention fixed for a period of from two to four years, but should even be applied when this detention is to last ten years. See Official Beport, November 29, 1938, col. 281 and col. 282. A similar point of view was taken up by Mr. Geoffrey Lloyd, Under-Secretary of State for the Home Office, see Official Keport, December 1, 1938, col. 730–731. Members of Parliament demanded that in these establishments an intensive reformative system be introduced along the lines of the Wakefield system. Undoubtedly, the Bill should be made clearer, especially in view of the fact that Clause 34 is to some extent incompatible with Clause 16, which clearly states that ‘reformation’ is to be the object both of corrective training and of preventive detention. Clause 16, however, also contains a provision which seems dangerous, namely, that persons condemned to such sanction ‘shall be allotted to a prison or part of a prison set apart for the purpose’; but what is needed is establishments which fundamentally differ from prison institutions.

14 In connexion with this, mention must be made of the excellent Keport of the Departmental Committee on Persistent Offenders (1932, Cmd. 4090), which in very lucid fashion and searching manner has examined the entirety of the problem and has elaborated the guiding lines which the Criminal Justice Bill has closely followed. Very interesting, although perhaps only too often forgotten, is the Beport from the Departmental Committee on Habitual Offenders, Vagrants, Beggars, Inebriates and Juvenile Delinquents (Scotland), 1895, Cmd. 7758.

15 The Courts apply preventive detention in from thirty to forty cases per Annum on the average, and in nearly every case apply the sanction for the minimum period of five years.

16 In Denmark, Norway and Sweden, the figures in respect of offenders sentenced to preventive detention do not exceed fifty cases. In Belgium the figure is higher but likewise insignificant. This sanction is more usual in Poland, in Italy and in Germany. In Poland, during the period 1934–38, it was applied to about 700 cases; in Italy (1931–37) to about 500 cases, and on a much larger scale in Germany, where it was applied to about 14,000 cases during 1934–37 (in half the cases, preventive detention was applied and in the other half, detention in compulsory work-houses). These figures, even the German ones, however, remain in no direct proportion to the data on multiple recidivism. In 1932, for instance, in Germany, out of a total of 564,479 persons finally sentenced, there were 2412,396 recidivists, of whom 72,129 had been sentenced more than four times previously. Owing to changes in the methods of registration in criminal records, the number of recidivists was artificially reduced and is really considerably larger.

17 English judicial statistics of crime do not consider the factor of recidivism (up to the World War it was possible to establish the number of previous convictions of persons convicted in assizes and quarter sessions). At present, prison statistics take account only of prisoners ‘with previous proved offences’ and ‘previous sentences of imprisonment’; the first category, of course, gives a fuller picture of recidivism than the second. In 1936, out of 100 prisoners there were 75.1 who had previously committed offences, whilst 52.9 had been previously sentenced to ordinary imprisonment or penal servitude; of these more than a half of the prisoners had been ‘known to have more than five previous proved offences’ and about 40 per cent, had previously been sentenced more than five times to privation of liberty. Lack of data on recidivism in English criminal judicial statistics is a very serious defect.

18 It is not by mere chance that in the great majority of cases the beginnings of the criminal activity of professional criminals and persistent offenders date back to very early youth. Eoughly speaking nearly 30 per cent, of those sentenced were condemned for the first time before seventeen years of age and 70 per cent, before the age of twenty-one. This is so also in the material provided by various countries; see, e.g., German material: Schurich, Lebensläufe vielfach rückfälliger Verbrecher, 1930, p. 134; Polish material: Batawia, , Nieproprawni przystępcy, in ‘Archiwum Kryminologiczne’ vol. ii, Nos. 3–4, p. 462: Russian material: Tarnowski, Wielokrotni recydywiści, in ‘Journ. of Ministry of Justice’ 1915, No. 2, pp. 144; English material: Cyril Burt, The Young Delinquent, 1925, p. 218; Goring, The English Convict, 1919, p. 123. There can be no doubt that if these investigations were conducted not only by the method of criminal statistics, which considers only formal recidivism, but also with due consideration of the method of individual examination, it would appear that the process of growth of criminal activity and the formation of the criminal pattern is on a very much larger scale.Google Scholar