Page:American Journal of Sociology Volume 4.djvu/655

 CRIMINAL ANTHROPOLOGY AND JURISPRUDENCE 63 5

society through his liberty, and that all efforts to prevent this are just. It is true an interrogated criminal will not often answer truthfully, but it would be much more difficult for him to establish his innocence were he not given the benefit of his silence. Science has no patience with the safeguards thrown about the criminal, and believes, if he is guilty, it is just that he should not be protected. If he is innocent, his testi- mony will tend to prove him so. In justice to the state, his silence should be construed against him.

So long as the tendency is to grant greater immunity to the crimi- nal, a decrease in crime is impossible. The certainty or reasonable assurance of not being convicted is one of the strongest incentives to crime, and, judging from the present ratio of the convictions to the crimes committed and the number of recidivists, the risk seems well worth assuming.

With the technicalities of legal insanity, involving the numerous questions of degrees, proof, elements constituting insanity, etc., crimi- nal anthropologists have made no leading suggestions, although the inadequacy is recognized. The question whether the test of insanity shall be the legal or medical one is not so much considered as whether one acquitted on the ground of insanity shall be released. Insanity should be no defense^ although it may be an explanation. The insane criminal is as dangerous to society as the sane criminal, and, being equally incorrigible, should be incarcerated. The absolute release of insane criminals has led to an abuse of the plea of insanity, and if crime is to be lessened by the prevention of further acts, and a trans- mission of defective organisms to descendants, incarceration must be assured. In France, Germany, Belgium, Austria, Hungary, and the United States an insane criminal, when acquitted on the ground of insanity, is withdrawn from all judicial control; but in Denmark, Russia, Spain, Holland, and England the judiciary is empowered to order seclusion in an ordinary or criminal asylum, or to keep the per- son under police surveillance. Italy, also, by her penal code of 1889 (Art. 46), gives a similar authority to her judges. Ferri, the Italian jurist, has proposed that the following classes be sent to these asylums : prisoners acquitted upon the ground of insanity, or sentenced for a fixed period on preliminary inquiry ; convicts who become insane during the term of their sentences ; insane persons committing a crime in ordinary asylums ; and persons under observation for weak intellect, who have been once on trial.

As a result of the Barberi trial, concluded in New York in 1896, a