Page:American Journal of Sociology Volume 4.djvu/659

 CRIMINAL ANTHROPOLOGY AND JURISPRUDENCE 639

duced a bill' providing for the asexualization of the inmates of the state institutions for epileptic and feeble-minded persons convicted of the crime of rape, and those for the third time convicted of felony. This bill did not pass.' The other bill was introduced in the Ohio legislature in February, 189S, and provides that it shall be the duty of the probate judge in each county to appoint an examining board of three physicians who shall consider and pass upon all applications for licenses to marry. By the terms of the proposed law, this board shall not be allowed to grant a license to persons contemplating marriage, unless upon exam- ination they are found to be free from true insanity, dipsomania, hered- itary insanitv, and tuberculosis. An appeal maybe taken from this board to a state board. This law contemplates the prevention of crime and disease by limiting the transmission of defective organisms.

In France and England some legislation has been obtained, and also in the United States, but it cannot be said that the test made has been a fair one. The majority of the states still maintain the maxi- mum and minimum penalties, while the discretion of the judge is per- mitted to run the gamut between them. The states having passed habitual-criminal acts are California (Penal Code, No. 667), Virginia (Penal Code, p. 752), Massachusetts (Stat. 1887, chap. 435, No. i), Missouri, Illinois (Rev. S., 1895, No. 498), Maine (Rev. S., chap. 135, No. 2), Ohio, and Connecticut. While there is some variance in these statutes, all of them substantially provide that after the commission of two or more felonies there shall be imprisonment for fifteen years and upward, and that the prison officials or boards of pardons shall have power to release on parole or without condition. These statutes have been subjected to various attacks. It has been sought to hold them unconstitutional on the ground of constituting second jeopardy (Peo- ple vs. Stanley, 87 Cal., 113) ; that they violate the provision that the penalty shall be proportionate to the offense (Kelley ?'.f. People, 115 111., 583) ; and that they are cruel and unusual punishments (Sturte- vant vs. Com., 33 N. E., 648). In each instance the statute has been sustained. It has been held, however, that the previous offenses must have been felonies in themselves and not made so by the statute (Car- son vs. State, ig S. R., 32 ; Stover vs. Com., 22 S. E., 874).

In the application of habitual-criminal acts the mere seriousness of the crime cannot divide the categories of criminals, and the division

■ House Bill No. 672, Michigan Legislature.

'For arguments favoring asexualization consult H. M. BoiSE, Prisoners and Paupers.