286 THE AMERICAN JOURNAL OF SOCIOLOGY
But in that which concerns the correctionnelle recidivist, this measure of qualified clemency, of intelligent indulgence, has produced in France the most happy results. In 1892, in the cases of 17,881 persons receiving the benefit of the conditional reprieve, there were 665 revocations ; or, to express, it otherwise, the relapses into crime amounted to 3.6 per cent. In 1899, in the cases of 28,497 persons receiving the conditional reprieve, there were 1,831 revocations. The percentage of relapses had fallen to 1.4 per cent. Formerly the juvenile offenders were sent to prison for a short term and returned only to augment crime.
The collective conscience is generally scandalized by the impunity of the culpables, but how does it happen that it accepts with manifest sympathy these half- acquittals which in reality enable 98 or 99 per cent, of the persons concerned to remain unpunished ? It is because, if materially these half -acquittal? do not differ from real acquittals, they nevertheless are spiritual condemnations, and that is the essential fact. " The true penalty, as the true government, being public opinion, that which is important, from the point of view of "social defense, is much less the execution of the penalty than the judicial announcement." The social need to which criminal justice responds is not to render blow for blow, evil for evil, but to pronounce official condemnation upon the offender. The number of months in prison or amount of fine serves above all to measure the gravity of the censure. In case the penalty is never executed it would still conserve its metric value, that would not be indifferent. " But in case of the conditional reprieve it is something more. It is a writ of execu- tion under condition, and this penalty upon paper is like fiduciary money which loses nothing of its exchange value when it is convertible into gold. Let us add that tribunals elevate to a much higher level the penalties that they pronounce with the help of the reprieve than they would be able to do without it. The law of 1892 has therefore effectively remedied the abuse of the short terms and at the same time has placed in fuller light the whole subjective nature and moral foundation of penal repression." G. TARDE, "La loi du sursis conditionnel et ses effets en France," in Bulletin de P Union Internationale de Droit Penal, Vol. X, No. 2, p. 299.
J. D.
The Importance to be Attributed in the Criminal Law to the Psychic Elements of Crime in Comparison with its Material Consequences. It is
important to distinguish between the different ends the penal law proposes. In the first place to defend society against the hurtful activity of a delinquent is the question. For this end it is necessary to apply the most appropriate measures, to paralyze the delinquent's anti-social activity, or better, to transform it into a social activity. The determination of proper measures to secure this result will depend evidently on an exact knowledge of the psychical constitution of the delinquent.
M. Garraud insisted that the criminal should be punished for what he had done and not for what he was. If the punishment should be determined by the character of the criminal, he must be treated for what he is, and not for what he had done.
Nevertheless, the psychic factor to be taken into consideration cannot be of one exclusive kind. Account must be taken, on the one hand, of the fact that the social defense is not carried on solely for repressive ends and only against the delinquent, and, on the other hand, of the fact that criminal justice is executed in all peculiarities of social conditions.
The social defense should be not only repressive, but also preventive. In regard to the defensive function, the measures applied to the delinquent will have an intimi- dating character. One certain thing cannot be mistaken; that in our day societies are defended against crime only by intimidation.
Penal law in order to obtain its entire efficacy must in its application obtain the complete adhesion of public opinion, or, if one wishes, the social conscience. If the masses do not adhere to the penalties proposed by the penal law, the law will be used to deprive the delinquents of a chastisement which is repugnant. Inversely, if society, moved by a crime, does not obtain satisfaction, it will make an application of private justice. There should be a complete concord between the decisions of criminal justice and social conscience. M. GAUCHLER, in Bulletin de f Union Internationale de Droit Penal, Vol. X. A. B.
