344 THE AMERICAN JOURNAL OF SOCIOLOGY
of imprisonment, the treatment and training of the imprisoned criminal, his conditional and absolute release, belong more properly to the executive department than to the judicial. If, however, it is thought essential that these matters of the criminal's imprisonment, treatment, and release shall remain in the department of the judiciary, then the controlling board authority might itself be constituted a court for this special purpose.
Practically the same view is taken by Judge L. G. Kinne, speak- ing for the Iowa Board of Control.
The discussion of the "indeterminate sentence" by Judge J. Franklin Fort and others before the National Prison Association 1 represents the most advanced American theory. Judge Fort went far beyond the actual practice in any of our states. He would have no maximum nor minimum sentence fixed by the penal code; nor would he fix the length of sentence even by the trial court. The principle on which he would have all prisoners treated is simply and absolutely that of cure of the disease which crime is said to be; for he says:
I should have neither the minimum nor the maximum term fixed by statute and, possibly, not by the sentencing court. The proper way to cure those who are really criminals is as you cure other diseased persons namely, keep them under treatment until they are cured, or, at least, so nearly cured that they may be discharged safely.
He would apply this principle to the youthful offender, and enable him to regain conditional liberty quickly; and he would apply it to the habitual criminal, so as to hold him as long as necessary to protect society, perhaps for life.
But when we come to the part of the problem which concerns this report, Judge Fort makes a recommendation which would cut at the root of the statutes thus far enacted on the subject, even in his own state. He would not leave the power to parole, recall, and discharge with the managers of the reformatory or prison; and he gives his reasons:
A board of managers of a penal institution is not always the safest body with which to leave the liberty of the prisoner. Even though it be consti- tutional and otherwise legal to confer upon the managers of a penal institu- tion the power of discharge, is it not of doubtful wisdom under our form of government? .... If it could be certain that no conditions that were political and non-judicial would control the board of management, the power
1 Proceedings of Philadelphia Prison Congress, pp. 124 ff.
