Journal of Criminal Law and Criminology

Volume 61 | Issue 2 Article 9

1970

Pioneers in Criminology: Charles Lucas--Opponent of Capital PunishmentAndre Normandeau

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Recommended CitationAndre Normandeau, Pioneers in Criminology: Charles Lucas--Opponent of Capital Punishment, 61 J. Crim. L. Criminology & PoliceSci. 218 (1970)

THE Joumw. or CmnAL LAW, CRIMINOLOGY AND POLICE SCIENCE

Copyright 0 1970 by Northwestern University School of LawVol. 61, No. 2

Printed in U.S.A.

PIONEERS IN CRIMINOLOGY: CHARLES LUCAS-OPPONENT OFCAPITAL PUNISHMENT*

ANDRE NORMANDEAU**

The author is Assistant Professor of Criminology, University of Montreal. He received his Ph.D.from the University of Pennsylvania in 1968.

Dr. Normandeau is the author or co-author of two articles that were published in earlier issues ofthis Journal upon the subject of Delinquency in Canada (Vol. 57, No. 2; Vol. 58, No. 3). He alsoco-authored an international bibliography on Group Treatment in Correctional Instiutions (Vol. 59,No. 1). His most recent prior article was a biography of Arnold Bonnelle de Marsangy (Vol. 60, No.1).

Charles (Jean-Marie) Lucas was a well-knownParisian barrister, prison administrator and pub-licist, whose public influence in France and abroadin the field of penal reform was primarily importantin the second and third quarters of the nineteenthcentury.

Born in Saint-Brieux (Brittany), near the shoreof the English Channel and at approximately 250miles from Paris, on May 9, 1803, Lucas went toParis for his College and University studies andreceived his degree in law in 1825.

A single event was to determine the final pro-file of his life-time career. In effect, public compe-titions were opened in 1826, one by Count deSellon of Geneva and another by the Society ofChristian Morality of Paris, on the subject of thelegitimacy and the efficacy of the death penalty.Lucas, as a youthful abolitionist, wrote a majoressay on the topic and submitted it independentlyto both competitions. Both prizes were awardedto Lucas, whose work received careful attentionby the press. Lucas was bound by them to becomea prominent figure in the political and intellectualas well as in the more specialized penal reformcircles. The work was published in 1827.i Fromthat moment, Lucas' major endeavors were to dealmainly with criminological problems, especially inthe field of penology. He was to try all his life tofind an efficient replacement for the death penalty.

From 1828 to 1830, he published a three-volumework on The Penitentiary System in Europe and

* The author wishes to thank Dr. Thorsten Sellinwho was responsible for his primary contact with theworks of Charles Lucas.

** The author received his Ph.D. in criminologyfrom the University of Pennsylvania in 1968.

1 Du SYSxkME PPNAL ET DU SysTkmE RtPEssIp ENGfd]IAL, DE LA PEINE DE MORT EN PARTICU=IE(Paris, 1827.)

United States. He sent this work to the members ofthe Chambers of Deputies and Peers with twospecial petitions demanding the introduction ofthe "penitentiary system" in France. This so-called penitentiary system referred at the time tothe idealized version of the regime at the WalnutStreet Jail in Philadelphia. The Duke of Laro-chefoucauld-Liancourt had visited this jail in1793 and published a small book on it in 1796.2The prestigious French Academy awarded Lucasthe Monthyon Prize for his work, and his bookwas also publicly praised in the Chambers' pre-cincts. His case was good. The Chamber of Depu-ties unanimously asked the government in Novem-ber 1830 to call Lucas to an administrative officewhere he could help in the execution of the penalreform.

As inspector general of French prisons, a jobhe would hold until his retirement in 1865, Lucashad a direct contact with the practical penalreality. On the basis of this empirical knowledgeand of his reading of the literature on prisonscoming from the United States (he never himselfcame to this country), he wrote his major book in1836 to 1838, another three-volume work3 aboutprison reform wherein he took a definite position"against" what is known as the "Philadelphiasystem of prison discipline" and "pro" a revisedversion of the "Auburn system of prison dis-cipline."

This work consecrated his fame in France andelsewhere. What has been called in Europe the

2DEs PRisoNs DE PHi.AELPx (Philadelphie,1796). An English edition was published at the sametime. The French version was reissued several timesin France between 1796 and 1830.

8 DE LA R.tORME DES PRISONS OU DE LA Ti OPSEDE L'E-PISONNEMENT (3 volumes, Paris, 1836-1838).

PIONEERS IN CRIMINOLOGY: LUCAS

"penitentiary science" was born. It consisted of asystematic study and elaboration of the "best"prison system to adopt. For many decades to come,Lucas was to assume leadership of the movement.The French Great Encyclopedia of 1880 called himin fact the "creator of the penitentiary science,"and the International Penal Congresses of Stock-holm (1878) and Rome (1885) recognized Lucas asthe "Dean of the penitentiary reform and ourmaster to all of us." On that international plane,we may add, incidentally, that Lucas was a cor-respondent member at one time or another of thePrison Societies of Paris, London, Dublin, Phila-delphia, Boston, and New York, as well as of theNational Institute for the Advancement of Sci-ences (Washington).

4

As an active member of the famous FrenchAcademy of Moral and Political Sciences for 50years, Lucas gave lectures of hundreds of paperswhich were, most of the time, published in bookform later on. All in all, his work covers nearly 40volumes. It is thus impossible to present Lucas'ideas in terms of the common perspective providedby the bibliographical succession of even his majorwritings. It seems preferable here to present hissubstantial thoughts in terms of six unit-ideas:(1) the prison system, (2) the death penalty, (3)juvenile institutions, (4) transportation, (5) war,and (6) causation.

The first idea is the most important because thequestion of the "best" system of imprisonmentwas at the core of a large humanitarian movementin the nineteenth century and forms an importantchapter in the "social history" of this century.

THn PRisoN SYSTEM

The Old Regime (before 1789) used imprison-ment primarily as a means of holding the suspecteddelinquent or the accused before trial or the con-victed before sentence and execution, but not as amethod of punishment per se. This latter ideacame with the Enlightenment and the rationaland humanitarian thinking of people like Beccaria,Montesquieu, Rousseau, Diderot, Voltaire, How-ard, Bentham, and Romilly. 5

4 Further bibliographical notes about Charles Lucascan be found in two obituaries. Brenger, 18 MtMoIR~sDE L'AcADmrIE DES SCIENCES MORALES ET Po=rQmq sD I.'INsTITUT DE FRANCE 483-525 (1894); Simon, 19MimomEs DE L'ACADtmrE DES SCIENCES MORLS DEL'INsTITUT DE FRANCE 57-90 (1896).5 The few scattered institutional antecedents have

been described in some articles by Thorsten Seflin:Filippo Frand: a Precursor of Modern Penology, 17 J.

The first half of the nineteenth century was tobe the carrier of their ideas and was to become thecradle of the four major types of prison systems,which, when reduced to their most simple ele-ments, are the following: (a) the "congregate"prison, where prisoners live, work, eat and sleepin common, and are allowed to talk; (b) the "ab-solute solitary confinement," identified originallywith the Walnut Street Jail, where prisonerslive in an individual cell night and day withoutworking; (c) the "relative solitary confinement,"identified with the Eastern State Penitentiary inPhiladelphia (variously labeled also cellular, Penn-sylvania, or Cherry Hill), where prisoners live inan individual cell night and day but are allowed towork; and finally (d) the so-called "silent" or"Auburn" system where prisoners work and eat incommon but in silence during the day, thoughthey sleep in individual cells at night.

The first prisons in France were patterned onthe congregate type, with all the promiscuity in-volved in these circumstances. Following theFrench Revolution of 1789, members of the Con-stituent Assembly proposed bills to reform prisons,some in favor of the solitary confinement system,some in favor of the silent system. These billsnever passed, however, because of political up-heavals. Another attempt to install solitary con-finement in French prisons was made in 1814 byLouis XVIII. The turmoil of the Hundred Days ofNapoleon prevented the execution of the law. Thesecond major attempt by France to reform itsprisons thus failed again. A Royal Society ofPrisons was then created in 1819 in order to im-prove penal institutions. just at the time whenthe Society's work was to lead to a major reform,it was dissolved by the July Revolution of 1830.6

The following years, however, were to be themost fruitful. The period 1830-1848, in effect, was

Cpni. L. & C. 104 (1926); Prison Reform in Belgium,17 J. C . L. & C. 264 (1926); Dom Jean Mabillon: aPrison Reformer of the 17th Century, 17 J. CRnS. L. & C.581 (1927); The House of Correction for Boys in theHospices of St.-Michael in Rome, 20 J. CRIM. L. & C.533 (1930); The Historical Background of Our Prisons,81 ANNALS 1 (1931). See also his book: PioNEEZINGIN PENOLOGY: Tni AMxEDAM HoUsEs or ColmEc-TioN IN THE 16mH AN 17TH CNruxros (Philadelphia,1944).

6 A fine historical penological sketch of this Frenchperiod, as well as up to 1850, is found in ThorstenSellin's Introduction to BEATfoNT & TocQ Evua.E,ON THE PENITENTIARY SYSTEM IN TEE UNITED STATESxv (Edwardsville, Southern Illinois University Press,1964, first published in 1833). See also Cary, FranceLooks to Pennsylvania, 82 PEsmtrLvANIA MAGAZnE orHISTORY AN BiomuAHY 186 (1958).

ANDRE NORMA NDEA U

probably the most active time of discussions onprison reform that has ever existed, at least inFrance, if not everywhere. A publicist of the timewrote, indeed, that "there is no question, not evena political question, which has engendered a greateramount of publications ... It seems that one can-not die without having done, with his testament,a little brochure on the penitentiary system." 7And Lucas was to write himself, ironically, that"the penitentiary reform question became one dayfashionable and asked only some wit, without thenecessity of any practical knowledge; so that, in anation as gifted with wit as ours, an innumerableamount of writings were and are written whichwill constitute in a very short while a course inpenitentiary literature." 8

The main point of the debate by then wasfocused on the efficacy of the solitary confinementsystem as exemplified in Philadelphia, versus thesilent system used in Auburn.

Alexis de Tocqueville and Gustave de Beaumontwere the first and most noted of the supporters ofthe separate discipline. In 1831 these young magis-trates persuaded the minister of the interior tocommission them to visit the United States andreport on the prisons there. During their tour ofthis country, they discovered a storm raging inAmerican prison circles as to the value of thedisciplines used in its two leading prisons. Auburnofficials tried to convince the French commis-sioners that France should adopt the silent system,since separating each convict during his entireconfinement made madmen of many of the pris-oners at Philadelphia. On the other hand, theofficials at Eastern State Penitentiary argued thatthe Auburn system was too lax, and that thesolitude of their own system actually reformedthe convicts by giving them an opportunity tomeditate on their crimes and, by their gaining on"inner light"--one of the central tenets of Quakertheology-to correct their evil dispositions. In theofficial reports of their trip to America, publishedin 1833, 9 Tocqueville and Beaumont tried to re-main nonpartisan and to avoid committing them-selves to the support of either of the American

7 Moreau-Christophe, Dgfense du Projet de Loi surles Prisons, 3 REvuE I"NiTENTIAIRE 400 (1846).

'Quoted in Pinatel, La Vie et l'Oeuvre de CharlesLucas, 18 REVUE INTERNATIONALE DE DROIT P19NAL126 (1947).

9 ON THE PENITENTIARY SYSTEM OF THE UNITEDSTATES (Engl. trans. by Lieber) (Philadelphia, 1833).See also Pierson, TocQuEviLE AND BEAUMONT INAMERICA (New York, 1938).

prison disciplines. Actually, they did believe thatthe Philadelphia institution did more to reformconvicts. It was thus but a short time after thisthat Tocqueville and Beaumont, because of severecriticism of separate confinement in France, weredefending the Pennsylvania prison in the Chamberof Deputies and creating in the European mind animage of it as the most important penal institutionin the Western Hemisphere.

The report of Tocqueville and Beaumont setthe stage for the struggle over adoption of theseparate system. Other writers and reformers tooktheir cue and entered the fight, some in support ofand others in opposition to individual confinement.Tocqueville was undoubtedly the leader of thepartisans of the Philadelphia system. Their oppo-nents sided with Charles Lucas who was giving hisallegiance to the Auburn system. 0

Lucas was already one of the most distinguishedof all French penal reformers when he published in1836-1838 his Reform of Prisons or Theory of Ian-prisonment. His humanitarian position was clearlystated from the beginning. Punishment should notbe the aim but merely an instrument of penalpolicy. The true object ought to be the protectionof society, and the means to this end: the pre-vention of crime and reformation of the criminal.Reformation, in this context, was understood asturning the obnoxious and troublesome into toler-able, acceptable, and, if possible, useful citizens.

1"We shall here focus our attention on the twoleaders, Tocqueville and Lucas. For other works of thetime, see AYvEs, ]YU SYSzME PNITENTLIAME ET DE-sEs CONDITIONS FONDAMENTALES (Paris, 1837); BR-ENGER, DES MOYENS PROPRES k GANPRALISER ENFRANCE LE SYsAME PNUTENTIAIE (Paris, 1836);BLOUET & DEMETZ, RAroPRTs A M. LE comTE DEMONTALrVET ... SUR LES PNITENCIERS AUX ETATS-UNIs (Paris, 1837); BLOUET, PROJET DE PRISON CELLU-LAME (Paris, 1843); DEMETZ, Rtsumg DES QUESTIONSPtNrTENTIAIRES (Paris, 1844); DUcPftrAUX, DuPROGRIS ET DE L'ETAT ACTUEL DE LA REFORME P9NI-TENTIAIIRE ET DES INSTITUTIONS PRPVENTIVES AUXETATS-UNIS, EN FRANCE, EN SUISSE, EN ANGLETER.REET EN BELGIQUE (Brussel, 1838); FAUCHER, DE LAR±ro~an DES PRIsoNs (Paris, 1838); FouCHER, SUELA RtoRmE DES PRISONS (Rennes, 1838); MARQUISDE LARoCHErOUCAULD-LIANcOURT, DOCUiMENTS RELA-Trrs Au SYsTumE RENITENTIAIRE (Paris, 1844); MoR-EAu-CHISToPHEI, RAPPORT I M. LE COMT DE MONTA-LIVET ... SUR LES PRISONS Df L'ANGLETERRE, DEL'EcossE, DE LA HoLLANDE, DE LA BELGIQUE ET DE LASUIssE (Paris, 1836); DE L'ETAT ACTUEL DES PRISONSEN FRANCE, cONSmtIt hANS SES RAPPORTS AVEC LATu:omxu PANALE nu CODE (Paris, 1837); DE LA MoR-TALITP ET DE LA FoLIE DAIS LE RnG][ME PNNITENTIAIRE(Paris, 1839); VARRENTRAPP, DE L'EMPRISONNEMENTINDIVIDUEL (Paris, 1844); see also REVUE PeNiTENTI-AIRE ET DES INSTITUTIONS PRPVENTIVES, edited by L.Moreau-Cbristophe from 1843 to 1847.

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PIONEERS IN CRIMINOLOGY: LUCAS

Lucas' motto, stated in the introduction to thebook, was significant in regard to his generalapproach. He wrote in a sociological vein wheresociety was held liable for the criminals in itswake: "It is time that human justice washes itshands in front of God and men of the terriblereproach to the effect that it contributes to in-crease rather than to diminish the stain of crime." uHis philosophy of punishment was in fact a philos-ophy of social rehabilitation when he said, "Societyfinds the criminal. This is a first healing. However,the criminal is in fact a sick person in a socialsense who must be healed not by medical cures butby social cures." 1 2 So that, by healing criminals,we heal society itself. For Lucas, thus, educationwas to represent the instrument par excellence of apenitentiary system; the aim of such educationwas to repair the failure of social education. Pris-ons were, in a sense, schools. By the same token,and well before the Italian school, Lucas turnedthe attention of lawyers and criminologists "fromthe crime to the criminal," as the old clich6 has it.As Lucas put it:

"Legislators have forgotten the actors and fo-cused only on the acts.... Such codes are basedon false and vicious presumptions.... False, be-cause in reality the degree of perversity of a crimechanges with each actor since the intentionality isdifferent.... Vicious, because reformation is moreor less rapid according to this degree of perversity;thus the length of punishment should be propor-tionate to the actor's perversity and not to hisviolation as such, because, for two offenders havingcommitted the same crime, a certain amount ofcorrective detention will be necessary for one andanother amount for the other. But when punish-ment is proportionate to the criminal act only, weare opened each day to detain a reformed man andto release an unregenerated man. Repressivejustice should then be focused on agents and noton acts." 12

Lucas' method of study, finally, was scientificand comparative. "The important study," hewrote, "is the one related to man, his nature, hispenchants, to the factors which maintain him inthe right track or alienate him from it as well asthose which may help to bring him back to itafter the fall. The stability of the social body de-mands from the legislator, nowadays, that elementwhich has long been absent but is now prevalent

"11 DE LA MRFORm1 DES PRsIONs OU DE LA T oRIEDE L'EMPXS0NNEMENT (Paris, 1836).

2Id. at 25.1 Op. cit. supra note 1, at 276, 281-82.

in the medical approach to the human body, i.e.science." 1

4 And reflecting more specifically on hiswork, he added: "There are two languages inSociety, one is science and is concerned with thefinding of truth, the other is teaching and is away to get the masses to understand what hasbeen discovered rigorously by science. I hope thatmy language pertains to the first one." 15 As to hiscomparative method, Lucas was quick to study thepenal legislations and their practical outputs interms of penal institutions of several countries. Itis in this sense that the American penitentiarysystem was highly praised by Lucas. "Why notsupplement," he wrote to the Chambers, "our lackof knowledge by the abundance of their researches?On what basis could we disdain the evidence oftheir experience, and trust only ours?" 16

Lucas' practical solutions, again well in advancedof his time, were in the realm of a progressive prisonsystem and the use of indeterminate sentence andparole, although this terminology was obviouslynot used by him and appeared on the "penologicalverbal market" only several decades after.

These modem ideas were delineated by Lucas,for example, as early as 1827, when Lucas de-manded sentences of minimum and maximumwhere thejudgewould have considered the extenuat-ing circumstances (which means in fact a considera-tion of the actor rather than, or in addition to, theact). Five such categories of minimum and maxi-mum were recommended: up to five years of im-prisonment, 5 to 10, 10 to 15, 15 to 20, and 20 to25. However, once the criminal was in prison, adiscretionary power over each prisoner's time toserve was allowed by Luca§ to a disciplinary board,and eventually to what we could call today aparole board, whose function was to reclassify eachprisoner according to his moral improvement. Inthis fashion, the Court sentence was to become,in fact, wholly indeterminate. Thus, a prisonercondemned to 20 to 25 years of imprisonmentcould be classified in category 15 to 20 after twoyears, in category 10 to 15 after another year, incategory 5 to 10 after two years and a half, andthen, as a member of the last category, he was tobecome eligible to parole which he could gain, letus say, after six months. Condemned to 20 to 25years, this individual could win his freedom inonly 6 years, if rapid signs of regeneration could

24 Op. cit. supra note 11, at LXXV.11 Id. at 29.16 1 Du SysztmE PPmmNTLrMEm EN EBUo ET

Aux ETAm-UNis XIM (Paris, 1828).

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ANDRE NORMANDRA U

be detected by the board. Another prisoner withthe same 20 to 25 years sentence, however, couldstay 10 years in the same category, and be only atthe stage 10 to 15 years after 25 years of imprison-ment. As Lucas put it:

"In the first instance, justice would have ascer-tained the perversity of the criminal in an exagger-ated negative way; in the second, in an exaggeratedpositive way. But the control of experience inprison would repair these errors, one of which wouldhave unduly extended the captivity of a man whowas not dangerous any more, and the other wouldhave given back to society a man still danger-oUS." 17

Lucas later reduced these five categories to three,which he called "categories of moralities," con-sisting of a class of exceptions or punishments, aclass of trials or testing, and a class of rewards orpermissions. But this "moral screening" was essen-tially a reformulation of the very same principleimbedded in his progressive system of five cate-gories.

This idea of classification was coupled with onestressing the further different disciplinary regimein each category, with a progressive liberalizationof the rules. The last stage would even be accom-panied by relatively free walks of the prisoner inthe city or the village in order to reconnect littleby little the culprit with the community. Thisvery same classificatory idea led him also, ob-viously, to stress the need for separate institutionsfor adults and juveniles, and for males and females.(We may mention here, even if it is not directlyrelevant, that Lucas knew the difficulties he wouldencounter from the inside in order to implementhis scheme. Using the old image of the congregateprisons as training schools which breed crime andgrant Ph.D.'s in criminal know-how, Lucas, as aforerunner of the sociology of prison organization,talked about the underground structure of theprison society with its professors and teachers ofvices, the inmate's hierarchy of power, and theprisoners peculiar dialects, rules, politics, policingand penalties or rewards, etc.1 Lucas made herethe well-known distinction between what he called"social criminality," i.e., the ordinary criminalitywhich grows outside prison walls, and "scholarlyor erudite criminality" which is formed in prison.One of his solutions to the problem was the es-tablishment by the government of a special edu-

17 Op. cit. supra note 1, at 308.1 Id. at 282-83.

cational Institute devoted to the training of pro-fessional correctional administrators and per-sonnel.)19

But what physical setting could "best" imple-ment these ideas of penitentiary reforms? Lucas,as well as his contemporaries, had the two mainmodels already well described by Tocqueville andBeaumont: The Philadelphia and the Auburn sys-tems.20 Tocqueville and his followers had sidedwith the Philadelphia system; Lucas and hissided with a revised Auburn system.

Lucas believed that life in common during theday was absolutely essential to the preservation ofthe mental and physical faculties of man. Man wasborn sociable and total solitude, like in the Phila-delphia system, was a state against nature. Manwas bound to live in society, and it was amongmembers of this society that he had to learn tobehave in a proper social way. As he put it: "Soli-tary confinement cannot be for a long termer theright preparation for the social milieu from whichhe stemmed and where he must return when hewill be set free from prison." 21 Lucas would havepermitted the use of separate confinement, butonly for those awaiting trial, for those sentencedto two years or less, and as an extraordinary pun-ishment for incorrigibles and convicts who violatedprison regulations. And, even in the case of personssentenced to two years or less, if the term wasserved in solitary, Lucas recommended an auto-matic reduction in sentence to a maximum of oneyear. He also felt that prisoners subjected to thisdiscipline should be allowed to speak to eachother, to families, and to friends, with permission,and to attend chapel services together. As for thebulk of prisoners living under the silent Auburniansystem, he would never allow the use of corporalpunishment or the whip, as it was done in Auburnto enforce the rule of silence. He would enforce

19 Op. cit. supra note 16, at LXXIX.20 See the following studies on the subject: BARNEs,

THE REPREssioN OP G nE: STuDrEs IN HIsTORIcALPENOLOGY (New York, 1926); BARNEs, THm Evou-

102N OF PENOLOGY IN PENNS LVANIA (Indianapolis,1927); T1'rxis, THE CRADLE or T PENITENTIARy:THE WALNUT STREET JAIL AT PHILADELPHIA: 1773-1835 (Philadelphia, 1955); TEETEs & SHEARER, THEPRISON AT PHIADELPmA, CHERY HILL (New York,1957); DePuy, The Walnut Street Prison: Pennsylvania'sFirst Penitentiary, 18 PENNSYLVANIA HISTORY 130(1951); DePuy, The Triumph of The PennsylvaniaSystem as a State's Penitentiary, 21 PENNSYLVANIAHISTORY 128 (1954); Cary, supra note 6.

213 DE LA RtoR=E DES PRISONS OU DE ia THiORIEDE L'EmpRisoNNEmENT 484 (Paris, 1838).

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PIONEERS IN CRIMINOLOGY: LUCAS

this rule by the threat of an increase of the timeto serve in prison since his system provided foran indeterminate sentence.

Lucas, in addition to his argument of sociability,put forth three main objections to the Philadelphiasystem: (a) it increased expenses in constructionand operation; (b) it increased the rates of physicaland mental disabilities; and (c) it increased therates of recidivists.

Tocqueville et al. agreed with the first point.However they ingeniously argued that the dangerof riots and escapes in prisons with the silent dis-cipline was much greater than in institutions on thePennsylvania plan. This raised personnel costs toensure security, thereby offsetting the difference inconstruction and operation expenses. As for therates of disabilities and recidivists, this mattercould be discussed only on the basis of the statis-tics given by the American administrators andpartisans of each system. Obviously, two difficultieswere involved here in assessing the validity andreliability of these statistics. First, the statisticsde facto collected were scarce. Second, the collec-tion, organization and presentation of these sta-tistics were often done by each group with theexplicit a priori purpose to prove a point--contraryto one another-, thus biasing the value of theseofficial statistics. In fact, the same set of statisticswas sometimes turned upside down by one groupto prove exactly the reverse position taken by theother group on the basis of this very same set ofstatistics. In the United States, the Boston PrisonDiscipline Society, headed by Louis Dwight, wasprominent to use statistics in this fashion to defend

the Auburn system, whereas the PhiladelphiaSociety for Alleviating the Miseries of Public

Prisons proceeded just the other way around. Theusefulness of these statistics was certainly not im-

proved in France when Lucas et al. relied on the

statistics published by the Boston Society whereasTocqueville et al. relied on the Philadelphia So-

ciety's publications. In fact, what has been said by

Barnes about the unfairness and dishonesty (or

perhaps it was only plain nalvet6) of the American

belligerents could be applied to the French an-tagonists:

"A careful examination of the polemic pam-phlets of both parties cannot fail to impress animpartial reader with the fact that neither wasqualified to cast the first ssone. Both were fiercelypartisan and both were disgracefully unscrupulous

in their use of statistics designed to support theircause or damage that of their opopnents." 2

Be that as it may, the supporters of the Pennsyl-vania system in France were making headway,despite the strong opposition of Lucas et al. Anadministrative decree in 1841 outlined a programwhich concerned individual separation by day andnight. But the advocates of the Philadelphia sys-tem, feeling that a legislative act would be morepermanent and authoritative than an adminis-trative circular, supported legislation from 1843 to1848 in the Chambers of Deputies and Peers in thisregard. Lucas et al. had already proposed in 1840a bill providing for the creation of a system ofprisons on the Auburn plan. It was defeated. Thistime, as of 1843, the supporters of a bill for theintroduction of the Pennsylvania discipline inFrench prisons were larger than ever in prestige aswell as in numbers. They had strong batteriesfiring rounds in defense of the separate system.Tocqueville himself introduced the bill on July 5,1843. However, because of the opposition Lucaswas able to muster, and because of certain differentpoints of view among the Philadelphia partisansthemselves as to the appropriate length of theseparate confinement (from a maximum of 10 yearsto a full term of the sentence), the debates lastedfor five years. As finally accepted, for presentationto a final vote, the bill provided for isolation byday and night for the entire length of a prisonsentence.23

But, once again, political revolution was to inter-fere with social reform. The bill was on the pointof being voted when the Revolution of February,1849, overthrew the government which had spon-sored it.

Not all was lost for the supporters of the separate

system, at least for a short while. An adminis-

trative decree in 1849 confirmed the one dated from1841 and ordered both the continuation of work

already begun and the construction of new depart-

mental prisons on the separate discipline plan.Thus, by the end of 1851, despite the legislativedefeats of Tocqueville et al., forty-seven depart-

mental prisons had been established on the solitaryplan and fifteen more were in the process of con-

22 Barnes, The Historical Origin of the Prison Systemin America, 12 J. CRI&. L. & C. 58 (1921).

2 See details in Cucim, TRAnTt DE SCENCE ET DE

L9GILATION P-6NzIqxnm S (Paris, 1905); VmAL,Couns DE DRoiT CPMUNEL ET DE SCIENCE PRNITENTI-Am (Paris, 1910).

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ANDRE NORMANDEA U

struction. In this sense, Lucas et al. seemed tohave lost the battle.

However, Louis-Napolon ended the SecondRepublic by his coup d'gtat of December 2, 1851.Again politics wiped out the victories achieved byTocqueville et al. The previous decrees wereabrogated, the congregate system was fully re-installed, and a system of transportation to thecolonies was instituted in 1854.

Under Louis-Napoleon's totalitarian tendencies,the entire prison reform movement was effectivelysuppressed for more than twenty years.

By the time when France underwent anotherrevolutionary change in government in 1870,Tocqueville had died and Lucas was almost theonly prominent figure in the field to hand on thetradition of prison reform to a new group of menwho were to be active during the Third Republic.As a result, it was the moderate, compromise planof Lucas, rather than the full separate system,which was embodied in the famous prison reformlaw of June 5, 1875. Only offenders sentenced to oneyear and one day or less were to be confined in the"Csolitary" prisons. The Auburn discipline wouldbe used for all the other inmates.

Lucas had won a great victory, which was crown-ing his life's work. But he had been "lucky" in away because politics, more than anything else, hadkilled the penal reforms of the Philadelphia type.In a socio-historical perspective, the relationshipof the reform movement to France's politicalhistory, illustrating the close relationship of anation's political development and its social andcultural history, is of significance today for a studyof social reform strategies in a world where politicsstill has the final word.

ThE DEATH PENALTY

The main theme of Lucas' first book in 1827 wasfocused on the death penalty where he took a firmabolitionist viewpoint. He attached great impor-tance to the problem all his life and never aban-doned a personal predilection for it. In fact, heused to say that he had been interested in prisonreform only inasmuch as he had been looking for a"replacement penalty" to the death penalty.

The work of 1827 was devoted principally to anexamination of the legitimacy and efficacy of thedeath penalty. On the philosophical level, he wasdefending the idea of the inviolability of humanlifc, save for self-defense. Traditional viewpointspertaining to the spirit of Christianity, the natural

rights of man and the rights of society to punish,were used in an elegant fashion by Lucas. On thepractical level, however, Lucas was bolder. In aBeccarian style, he maintained three fundamentalprinciples: (a) that the efficacy of penalties dependson the certainty and proximity of repression; (b)that the certainty is in inverse relationship withthe severity of penalties; and (c) that, in this per-spective, the death penalty was, of all penalties,the least repressive. Lucas then proceeded to provethese assertions by some statistical data related tothe number of indictments and accused, acquittals,condemnations and commutations, about capitalcrimes in France for the years 1825 and 1826. If,by chance, the offender was arrested, there was a50 per cent chance that he would be acquitted.Condemned, he had again a 50 per cent chancethat death would not be pronounced in his case.Even if condemned to death, he had a 20 per centchance of being pardoned. All in all, a capital of-fender had less than 1 chance out of 10 to die underthe guillotine. How could the death penalty beeffective and deterrent in such a state of affairs?

His interest in the question led Lucas to studythe legislations in almost every country in theworld, to write special petitions to the Chambers ofDeputies and Peers of France as well as to theleaders of other countries.

It is astonishing that so many European coun-tries around France have abolished the deathpenalty during Lucas' life-time or after whereasFrance still has it as of 1970. It may be significantin this context to know that Lucas' 1827 book onthe death penalty will be republished in Paris ina few months.

JUVENILE INSTITUTIONS

Lucas' idea of the necessity for an individualiza-tion of treatment was bound to attach its atten-tion on juvenile delinquents because it was obviousto him (as it still is today) that to combat crim-inality at its roots was the best safeguard for thefuture.

Lucas began by insisting that juveniles should beseparated from adult inmates. As early as 1828-30,he proposed the creation of "schools of reform" forjuveniles. His petitions to the Chambers at thetime explicitly demanded the establishment of suchspecial institutions for juveniles under an Auburndiscipline. A strong emphasis on education was themain feature of his proposal. A specific project tothis effect was proposed by Lucas in 1831 to a

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special State Committee. In addition to his earliergeneral scheme, Lucas there stressed the necessityof a complementary post-prison institution, called"patronage," for juveniles. This patronage was tobe equivalent, grosso modo, to a "house of refuge"or, in modem terminology, a "half-way house".Lucas founded with A. Brenger, the first societyof patronage in Paris in 1833.

In 1832, the Paris institution for juvenile delin-quents, La Petite Roquette, was to embody in itssystem of treatment many of Lucas' ideas. How-ever, the system was to be modeled on the Penn-sylvania system, and Lucas rejected it as obviouslyuneducational and unrehabilitative.

While waiting for the governmental action, pri-vate institutions for juveniles began to spread out.Lucas organized one of the first ones in Bordeauxin 1834. The same year, Lucas wrote a brochurewhere he suggested the establishment of "agricul-tural colonies" and then coined his well-knownslogan: "The regeneration of the child by theland, and the land by the child." This stimulus ledDemetz and Lucas to some practical endeavors.They became the founders, and for many years theheads, of agricultural colonies, Demetz at Mettrayin 1839 and Lucas at Val d'Y~vre in 1843. Theseestablishments had accommodations for 500 to 700young offenders who were admitted when undersixteen. A family system was predominant. Theinstitution consisted of various houses; each thehome'of a family of thirty to fifty inmates. Thecongregate system was used at Mettray, but theAuburn system at Val d'Y¥vre, although in thislast instance the cells looked much more like roomsthan anything else. The importance of a new typeof personnel as a prerequisite for constructive workwas recognized as essential. Teachers were espe-cially trained for educational and social work. Theagricultural work gave ample opportunity forhealthy employment. It was, in fact, a real educa-tional system, based on moral persuasion ratherthan on force, with the object of making thejuvenile capable of self-control and self-support.Discharged boys were placed under the supervisionof a patron, and often the institution remained intouch with the boy's employer in his later years.

A law in August 1850 about the education andpatronage of young inmates consecrated Lucas',Bfrenger's, and Demetz's works in this domain.And, in 1872, the State bought Lucas' institutionat Val d'Y¥vre, and so special institutions foryoung offenders began to generalize even moreunder the leadership of the government.

TRANSPORTATION

Lucas was preoccupied all his life with the unifi-cation of all criminal sentences into one consistentsanction: imprisonment. The time element was tobe the central factor to aggravate or mitigate apunishment according to the moral aim in view.It is in this perspective that Lucas, as early as1827, took a strong stand (a) against the "bagnes"(these hulks or shore prisons that had succeeded theFrench penal galleys), and (b) against transporta-tion and colonization. He attacked particularly thethen extensive English system of transportation toAustralia as inhuman and inefficient. As he put it:"Societies must absorb their criminality and mustnot try to throw it out arbitrarily on an unknownland."

2 4

The "bagnes" were replaced all right in 1854,but by transportation to the colonies, and not byimprisonment as wished by Lucas. The transporta-tion system was even extended in 1885. It was todisappear only during World War II, when im-prisonment then became the general and uniformpunishment in France... more than a centuryafter Lucas' suggestion.

CAUSATION

Causation of crime was viewed by Lucas as re-lated to misery and a lack of education; to a lackin "civilization," as he put it. In a little study ofcriminality in France, in 1827, Lucas started froman analysis of the French criminal statistics for1825 and 1826, and divided France into two groups,"the Bright France" and the "Obscure France,"according to their intellectual and material re-sources, using indices like the number of bookstores, the level of education, or the amount oftaxes paid. "Bright" was identified with "civ-ilized." He examined in these two Frances thecrimes against property and the crimes against theperson. He found fewer crimes against the personin the "Bright France" but more crimes againstproperty. He thought it was significant in view ofthe fact that crimes against the person were moreimmoral. He concluded: "Thus, we have proven,with mathematical rigor, this great truth that,with civilization, our persons are more secure. Evenour property is, because the relative increase of

this type of crimes among civilized people, com-pared with others, is simply the result of the mul-

tiplicity for evil in the former since they are

24 Op. cit. supra note 1, at 336.

ANDRE NORMANDEA U

richer." 2 In a similar vein and using extensivelythe available statistics for a series of years andfrom many places (France, England, Pennsyl-vania, Geneva, and Spain), Lucas tried to prove themoral influence of civilized nations on the decreaseof criminality. His conclusion was as before: per-sonal crimes diminish proportionately as civiliza-tion increases and even property crimes do so, in away.26 His thesis was dear, once more: the increaseof well being, of work, of business, in short, thewhole advance of material prosperity, brings withit a proportional increase in the number of crimes.The theory is to the effect that there is a propor-

tion between evil activity (crime) and honest ac-tivity (commerce, industry, and affairs). It restsupon the principle that when the latter increases,there necessarily is a stimulation to the former, sothat the increase in crime would be merely ap-parent, if it were exactly in proportion to theprogress of honest activity. If we admit thispremise that an increase in the number of crimesproportionate exactly to the increase in materialprogress is without importance, signifying in re-ality that crime is stationary, then it follows thatan increase in crime proportionately less than theincrease in prosperity really means that crime hasdiminished. We might therefore find in a givenperiod double the number of crimes of the preced-ing period, and at the same time be obliged torecognize an actual diminution in criminality.Lucas wrote:

"Civilization, which is merely the progress ofliberty, widens the abuse of liberty, preciselybecause it extends its use. To obtain an exactnotion of the morality of civilization, we must,instead of contrasting liberty and civilization,place on one side of the balance the use, and on theother, the abuse of liberty. Let us establish the rulethat the morality of civilization is to be judged bycomparing the use with the abuse." 27

This principle once posited, he sees little groundfor alarm in the larger number of certain classes ofoffenses appearing in France, as compared withSpain:

"We are not called upon to give especiallycredit to a poverty-stricken and ignorant peoplebecause of the small number of harmful actsoccurring in their midst. This fact is due to thelack of occasion for inflicting harm; to nothingelse than an animal-like ignorance. The greater

11 Id. at XXXIV.21 Op. cit. supra note 16.27 Id. at XIV.

number of such acts occurring among civilizedpeoples is merely the result of a larger develop-ment of human freedom." 28

WAR

Lucas, in his state of blindness, beginning in 1863and lasting until his death in 1889, did not changehis fundamental activism in favor of penal reform.If one thing is true, it would be the contrary. How-ever, he did find, in addition to his old interests, anew one. He became, after the Franco-German Warof 1870-1871, an "apostle of international law."But this new role was not so far away from hisrole as a penal reformer. In fact, it was in completeharmony with his whole life and works. In effect,he started to study the death penalty problem byinvestigating the right to punish by society. Theprison and the war problems stemmed from thesame starting point, i.e., the question of self-defense. He wrote:

"What is a reform relative to the abolition ofthe death penalty if not the consecration of theprinciple that, in the criminal penalty as in war,we must respect, with regard to the culprit as wellas to the disarmed warrior, the human life, savein the case of self-defense? And what is a peniten-tiary reform if not a purely defensive right whichconsists in neutralizing the disarmed culprit byprivation of liberty, but also a duty to work so asto rehabilitate the criminal in order to curb recid-ivism? Thus, in penal sanction as in war, we do notproceed against the law, which is based on therespect for life and for man's freedom; but wemust, on the contrary, consecrate this respect bythe proclamation of the principle of life's inviola-bility and of man's freedom, save the case of self-defense.""

On the occasion of the First International Peni-tentiary Congress, held in London, in 1872, Lucasconcluded to the necessity of two complementaryCongresses, logical consequences of the Peni-tentiary Congress; one for the abolition of thedeath penalty; the other, for the abolition of a warcivilization, and the renewal of a peaceful Christiancivilization. He focused on the idea of a "mediator"between the Nations, somewhat similar to a UnitedNations organization.

Lucas did not only talk on the subject. He wasactive in promoting a French organization forpeace and an International Institute for the Rightsof Man and writing to different political leaders

" oIbid."Quoted in Pinatel, supra note 8, at 130-31.

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PIONEERS IN CRIMINOLOGY: LUCAS

like Gladstone, the future Prime Minister ofEngland, and Rutherford B. Hayes, President ofthe United States.

CONCLUSION

The principles of modem penology have alwaystended since the nineteenth century to establish apenitentiary regime largely opened to the ideas ofscientific selection of the convicts. Modem pe-nology has been dominated by the notions of indi-vidualization and progressiveness. When this con-ception is based on a more general doctrine wherethe supremacy of the prison as a mode of executionof punishment is stressed, we see immediately howLucas fits perfectly well in the contemporary peno-logical scheme.

In effect, let us only recall here some of themajor concepts developed by Lucas, often quite inadvance of his time and all initially developed inthe few years between 1827 and 1838 when hewrote his three leading books: the importance ofthe criminal as an individual and actor over thecrime and the act; classification (by necessitybased on a social and personality study of theoffender, however rough such a study would havebeen in Lucas' time); indeterminate sentence;parole; special institutions and care for juveniles;half-way house; etc. These concepts are also at thevery heart of the modem conception, without anydoubt, and can be encapsulated by the two moreencompassing ideas which Marc Ancel, the leaderof the New School of Social Defense in Europe, hasstressed in his recent book: "a rational penal policyaimed at the systematic resocialization of the of-fender," and "an ever-increasing humanization ofthe new criminal law." 3

It is thus not surprising at all to hear Ancelclaiming the name and works of Lucas as a chal-lenging figure in the field of criminal law andcriminology, and as a pioneer in the movement ofthe New Social Defense which tries to achieve abalance between criminal law and criminologywithout any imperialism of one over the other soas to eliminate any "cold war atmosphere." AsAncel puts it:

"If time allowed, it might .. be possible to seekin the doctrinal writings of the nineteenth cen-tury, underneath the thick shell constituted bythe legalistic theory of classical criminal law, thefirst rather fugitive and cloistered glimpses of

10 ANCEL, SOCIAL DF-ENCE 24-25 (New York, 1966).See also Canals, Classicism, Positivism and SocialDefense, 50 J. Cnms. L.C. & P.S. 541 (1960).

theories of social defense. In this connexion...there was the important movement in favor of theindividualization of penalties which was to make asignificant and notable contribution to the legisla-tive developments of the nineteenth century....The prison reform movement which emerged inthe last years of the eighteenth century with thework of John Howard and Elizabeth Fry in Eng-land, leading to the 'penitentiary school' of themid-nineteenth century associated with the namesof Charles Lucas, Bonneville de Marsangy, andDucp~tiaux, revealed the possibilities and theadvantages of the re-education of offenders. 31

And elsewhere: "when the United Nations, in1958, adopted the minima rules on the treatment ofinmates, prepared by the International Penal andPenitentiary Commission, they were joining thegreat tradition of John Howard, Elizabeth Fry,Charles Lucas and Bonneville de Marsangy ... ,"32

We may put a final point to our investigation byquoting a very sensitive thought that Lucas ex-pressed near the end of his life and which shouldinspire in us the energy to follow his path and, atthe same time, the modesty of self-limitation. OnNovember 6, 1875, at the Institute, he said:

"Fifty years of studies, this is a lot in the life-time of a man. But, it is so little in order to finda solution to the problem of penitentiary educationwhen we think that, for 2000 years, people havediscussed the role of education in the family andin the State. I have no illusion, and the onlyobjective I may aspire to is to bring a very modeststone to the building of this great movement ofpenitentiary education which will develop onlygradually in the course of the years thanks to thepersevering work of science, the accumulated datacarried by experience, and 'the continued action oftime."

SELcECTED BLIOGRAPHY Or CHARLES LUCAS

Selected Books

Du Sysrmn PNAL -z Du SYsT: mE REPREssw ENGgm", DE LA PEINE DE MORT EN PARTicumLTR(Paris, 1827).

Du SYsTkmE PANiTENT &I E EN EUROPE ET AUXETATs-Ums. (3 volumes) (Paris, 1828-1830).

RECUEIL DES DLBArS DES Assz aTIs LGlSLATIVESDE LA Fa.NcE SUR LA QUESTION DE LA PEINEDE MORT (Paris, 1831).

Dz LA R FORME DES PRISONS ou DE LA TEidozu DEL'EMPRISONNEMENT (3 volumes) (Paris, 1836-1838).

"1 A.CEL, op. cit. supra note 30, at 38-40."Ancel, La Defense Sociale Nouvelle, 14 REvUE DE

SCIENCE CRI3INELLE ET DE DROIT PENAL COMPARIu201(1964).

n Quoted in Pinatel, supra note 8, at 154.

ANDRE NORMANDEA U [Vol. 61

DEs MOENS ET DES CONDITONS DE LA RtFOM Pamphlets, Memoirs and ArticlesP~NITENTIAIR EN FR.ANCE (Paris, 1848).

LE DROIT DE L GITIE DFRA ENSE DANS LA P1NA8T8 Lucas wrote hundreds of pamphlets, memoirs andET DAs LA GUm=aEE (Paris, 1873). articles. Many of them have been published in the

LA CIVIISATION DE LA GE (Paris, 1881). PROCEEDINGS of the Acad~aie des Sciences Morales

DE L'ETAT ANOmAL FANc LA r IPE-SION et Politiques, of which Lucas was a member for more

EN MATI3,IRE DE Cant s CAPITAUX ET DES MOYENS than fifty years (1833-1889). We take the liberty to

D'Y REwtDIER (Paris, 1885). refer the reader to this primary source.