640

THE TREATMENT OF THE RECIDIVIST IN THE

INTRODUCTION

Modern penal and philosophy have addressed their attention rather consistently to the problems of two types of criminals: (1) the so-called first offender, and (2) the "repeater" or recidivist, often defined as "habitual." While the first offender has been regarded as a challenge to intelligent judicial leniency, the recidivist has been and still is viewed as in need of a different kind of treatment. The general underlying psychology of reci- divism appears to be that deterrence can only be secured by increasing the as the offender increases his violations of the law. Briefly, increased dangerousness to the community calls for increased pain to inhibit the criminal tendencies of offenders who apparently are directing their energies toward as a continuous form of employment . Though the penalties involved have changed both in kind and degree, increased severity of punishment for repeaters is still the dominant method used to handle this problem. It can hardly be said that the popularity of this practice was, or is, due to the theoretical possibilities of deterrence and reformation inherent in such penalties. Whatever the belief was formerly, present knowledge does not support it. Rather, revenge, and protection gained by eliminating the culprit from society, seem to be the reasons for its continued use. The of the American colonies referred usually to what might be termed "specific" , i.e., the penalty was aggravated when a specific crime was repeated . The English tradition was quite apparent in the old "specific" of the early Virginia Colony regarding hog stealing. For the first offense the offender had to pay one thousand pounds of tobacco to the owner of the pig, plus the same amount to the person who informed against him ; or serve one year's work for the owner plus one year's work for the informer. For the second offense, the statute provided that "if any person haveing beene once convicted of hogg stealing, shall a second tyme be convict thereof then for *This monograph has been prepared under the supervision of Professor Thorsten Sellin, University of Pennyslvania, Philadelphia, Pa. The author also wishes to express his appreciation for the many useful suggestions made by Dr. J. P . Shalloo, Assistant Professor of Sociology, University of Penn- sylvania .

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such his default he°shall stand in the pillory two howres and have both his eares nailed thereto, and at the expiration of said two howres, have his eares cut loose from the nailes, which penalty and punishment shall, be adjudged and inflicted against and upon the offender by any county in Virginia, any law to the contrary notwithstanding. And whoever shalbe taken a third tyme stealing hoggs, that then he be tried by the of England as in ."' The adjudging of the offender as a felon resulted in a death penalty.2 Statutes based upon these same principles of specific recidi- vism are in use in all the states of the Union at this time. In some this type of recidivist legislation is the only one found. Most states have supplemented the statutes just mentioned by what might be termed "general" recidivisms laws; i.e., statutes which provide increased penalties when the subsequent crime is any one of certain types. It is with this kind of legislation that this monograph is specifically concerned. These more "modern" laws are not especially new, however, for their basic form was established long ago. The Massachusetts law of 1817, for example, is not unlike many of the present acts. Part of this law reads as follows : "where a person is again convicted of a crime punishable by hard labor, in addition to the penalty for the crime, he shall have thirty days solitary confinement and seven years, added to the penalty; for the third offense, he shall have the same term Fur-of solitary confinement and shall be imprisoned for life. "3 ther on in the same law . . . "where the previous are discovered after the has been passed for the latest, the convict shall be brought out for and re-sentencing under the provisions of the act."4 Elliott attempts to show that the New York laws of 1907 were derived from this Massachusetts statute. In her opinion, the New York acts were based on those of West Virginia in 1860. The latter in turn were almost copies of the Virginia Acts of 1849, which were practically identical with the Massachusetts Act of 1817.1 There is some `doubt, however, whether the Massachusetts law was actually the indirect inspiration for these New York acts. In 1797, New York already had a law which prescribed 1 Hening, W. W. : Statutes at Large. Richmond, 1809, Vol . 5, p. 440 . a Ibid., Vol. 5, p. 276. 3 Mass. Laws of 1817, Ch. 176, Sec. 6. 4Ibid, Ch. 176, Sec. 6. s Elliott M.A. : Conflicting Penal Theories in Statutory . Chicago, 1931, pp. 186-7.

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life for a second felony.' The argument, therefore, remains more academic than legal when the point is raised as to whether these laws of 1907 were more directly related to the Massachusetts statute or to the 1797 act itself. The "general" recidivist statutes reached the zenith of their popularity in the United States in the late 1920''. Initial momentum came almost immediately after World War I due to an apparent increase in crime bringing in its wake intense criticism of penal law and the inefficiency of penal treatment. Sutherland explains that the mandatory characteristics of these laws were the results of investigations and recommendations made by the various crime commissions popular in the early 1920''.1 One of the evident purposes of these commissions was to strip the and boards of some of their powers. Sentencing would then be controlled by the legislature and parole by the governor only.' It is very likely that the Volstead Act was the most Thisimportant factor in the total situation.9 law was instru- mental in producing more crime than any other type of legislation known. Its effects were widespread and touched even judicial and penal authorities. Gangsterism and racketeering became so prevalent that neither existing recidivist laws nor any other normal type of legislation could meet the situations created. As a result there arose the various "public enemy" laws." An index of the enthusiasm with which the general recidivist laws were received may readily be seen by the fact that between the years 1920 and 1930, twenty-three states adopted legislation of this type. The greatest publicity given to any of these laws was accorded the famous "Baumes Laws" adopted in the state of New York in 1926.11 This was due mainly to the excessive criminality in New York at that time and the further fact that in the years immediately following their adoption the mandatory life sentence s State of New York : Report of the Crime Commission for 1929 . Albany, 1930, pp. 11-12. ' Sutherland, E . H. : Principles of Criminology . New York, 1939, p. 539. s Crime commissions were civic agencies, the majority of which sprung up about 1920 . The personnel of these agencies usually consisted of compet- ent public-minded citizens who were interested in securing facts about crime which might lead to an improvement in the situation . The most famous was, perhaps, the still active Chicago Crime Commission . The published reports and bulletins of this body offer good examples of the excellent work done by many of these agencies . 9 The prohibition law in the United States . to These laws are discussed in Chapter IV. 11 Named after Senator Caleb Baumes, then Chairman of the Crime Commission. The laws consisted of a mass of restrictive legislation pertain- ing to various criminal matters . The law with which this study is concerned is the one prescribing mandatory for the fourth of a felony. For purposes of simplification and because of its prominence, this particular act will be referred to henceforth as the Baumes Law .

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for fourth offenders was applied in a considerable number of cases. This statute was therefore given great acclaim by the press. There is some doubt, however, whether it instilled in the criminal the amount of fear that it was supposed to implant. The pro- vision regarding the punishment of fourth offenders was really a r6vision of the old 1907 statutewhich specified the same penalties for the fourth offense. "However, in. the, 1907 statute the pro cedural difficulties impaired, efficient prosecution. The 1926 amendment removed these difficulties and made the law really workable. It may be noted here that this fourth offender act of 1926 is commonly regarded as the habitual criminal act of New 'York. Actually, it does not refer to the habitual criminal at all. Also, New York had a quite different statute entitled "The Habitual Criminal Act." The passage of the Baumes Law in 1926 influenced many other states, which, with certain variations, adopted the mand- atory life sentence for the third or fourth felony. 'Among states passing legislation of this sort in 1927 were Oregon, Florida, North Dakota, Minnesota, and Vermont. Since 1930, three states have repealed or revised important acts or sections of acts concerned with general recidivism. In 1932 New York abandoned the mandatory clause in its fourth offender act, thereby giving the court greater discretionary power. In 1933 Connecticut repealed its Incorrigible Act of 1918. Kansas repealed its mandatory life sentence for third felony conviction in 1937. Only one state has enacted new legislation since "1930, namely, Wyoming, which passed a general recidivism act in 1937. In no discussion of recidivism and its treatment is it possible to overlook the habitual criminal. In the United States there is no uniform or clear legal definition of this type of offender. This confusion makes it difficult to distinguish between "recidivism" and habitual criminality since these concepts are virtually inter- changeable in both law and literature. In some states the habitual criminal is differentiated from the recidivist, but, in a final analysis, one must agree with Roling that in the United States Wherethe two terms are virtually synonymous.13 a differentia- tion is attempted the result is not only unimportant but in some cases paradoxical. Iowa, for example, considers as an "habitual ,criminal" one who has been convicted of three unspecified . 14 New Jersey defines the "habitual criminal" in terms 12 See Thompson's Law of New York, Part II, Ch. 2. s. 510-514 . " See also Part I of Penal Laws, s. 1021=1022. 13 Roling, B.V.A. : The Laws Concerning the So-Called Professional and Habitual Criminals. Martinius Nijhoff: The Hague, 1933, p. 5. 14 Code of Iowa, 1939, Ch. 614, s. 13396, 13397, and 13400.

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of convictions of certain specific felonies." The Illinois, Ohio, and Pennsylvania definitions greatly resemble that of New Jersey. On the other hand, New York" and Ohio" define the habitual criminal in terms of both felonies and . While a majority of the states define the habitual criminal according to the sounder criminologist conception, t.e., in terms of general recidivism, some states omit the term "habitual" and designate such repeaters as "persistent violators" (Idaho), "incorrigibles" (formerly Connecticut), "fourth termers" (Louis- iana), and "fourth offenders" (Vermont) . The definition of the habitual criminal is of importance, however, for it represents alegal distinction not only in penological treatment generally, but more specifically in 'respect to our changing attitude regarding the recidivist. Until the turn of the twentieth century, recidivism was generally defined in terms of successive convictions for specific ; e.g., if an offender had been once convicted for felonious and after serving his term was later convicted of arson, the sentence for the latter crime was not affected or made more severe because of the previous conviction since it was not the same crime for which he was formerly convicted. No doubt as a result of the work of Lombroso, the rising popularity of the term "habitual criminal" caused a change in this situation. For a few decades after the publication of Lombroso's work, it may be noted that recidivism per se becomes more important than the recom- -mission of specific crimes, and almost any relapse into crime incurred the label "habitual." Thenceforth, the recommission of crimes, especially those of a felonious nature, usually involved an increased severity of penalty. Whether habitual criminals actually differ constitutionally from recidivists is not to be argued here, although the question appears to be of significance. The important fact is that at present, the habitual criminal is most frequently defined by statute in terms of "general" recidivism. It is quite probable that the once popular misnomer "first offender" arose in contradistinction to the term "habitual crimi- nal" in both statutory law and everyday parlance. In this way a differentiation was made in terms of the number of convictions suffered. The term "first offender," resting upon an artificial legal distinction at present, is losing its past significance. It is now recognized that in many instances the "first offender" may is New Jersey Statutes Annotated, 1939, Ch. 103, s. 7 and 10. is Thompson's Laws of New York, op cit. 17 Throckmorton's Ohio Code-1940, Ch. 40, s. 13744-1 and 2.

1945] The Treatment of the Recidivist in the United States 645

be an habitual criminal. Yet, from the present legal status of the concept such a distinction is impossible. Since the advent of the personality-situational analysis of the offender himself, the number of arrests or convictions is no longer a suitable criterion for distinguishing first offenders from the habitual offender from the sociological point of view. It should be noted here that in only a few instances are the recidivist laws of the United States related to the acts or measures of safety of European countries. Three acts, two of which have been repealed, belong in thelatter category, however. The Ohio Habitual Criminal Act of 1885 provided that after a person had been twice convicted, sentenced and imprisoned in some penal institution, he would be deemed to be an habitual criminal. On the expiration of his sentence he was not to be discharged but was to be detained during his natural life. He was eligible for an indefinite parole which, if granted, was revocable at any time." The Incorrigible Act of Connecticut (1918) somewhat resembled this law. This act provided that on the third conviction of afelony the offender could be held an additional twenty-five years after the expiration of his sentence." The Rhode Island statute, the only one now in operation, is essentially similar to the repealed Incorrigible Act of Connecti- cut. "If any person shall be convicted and sentenced to any prison or penitentiary in this state or any other state or country, two or more several times, as punishment for crime committed in this or any other state or country, and such person at any time after said two, sentences shall have been passed upon him, be convicted in this state of any offense against the laws _thereof, punishable by imprisonment in the state prison, such person shall be deemed an 'habitual criminal,' and upon said last con- viction, as aforesaid, shall be punished by imprisonment in the state prison for the term of not exceeding twenty-five years, in addition to any sentence imposed for the offense for which he was last convicted, as aforesaid. . . ."20 The Habitual Criminal Act of New York also has some relationship to the European acts.21 The segregating clause of the Pennsylvania Statute also constitutes a derivative form of these acts.22 None of these laws, - however, is concerned 18 Quoted by Elliott, M.A., op. cit., pp. 189-190 . is General Statutes of Connecticut, Revision of 1930, s. 6502 . " General Laws of Rhode Island, 1938, Ch. 625, s. 64. 21 This act is discussed in Chapter IV, immediately following section 3. 22 Purdon's Pennsylvania Statutes, Annotated, title 61, s. 4. This statute, adopted in 1921, requires that "habitual" criminals or those evil-inclined, must be separated from "those of opposite inclinations ."

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with the special type of treatment which is afforded the habitual criminal under the European statutes. In this country the habitual criminal is treated like any other type of offender with the possible exception that he usually receives a more severe penalty and is usually sentenced to maximum custody institutions in those states which have such institutions. Sellin explains the difference which exists between the European approach and ours as due to the unpopularity of the indeterminate sentence in those countries, especially at an earlier date." In this country the indeterminate sentence has been the ground-breaker for sentencing boards which make a complete analysis of the offender before determining the duration of his imprisonment . Both of these procedures loom as important points of development in the future treatment of recidivists.

ANALYSIS OF THE LEGISLATION Seven states and the Federal Government have no "general" recidivist statutes.' All of those states are located in the south eastern section of the country. Legislation of this type has never been politically advantageous in this section for many reasons. In 1939 there was discussion among a few representatives of one of these states to place before the Assembly then meeting a bill providing life sentence for those offenders convicted for the ninth time. News of this proposed bill never reached the press nor did the bill reach the floor of the House. Among the forty-one states and the District of Columbia having "general" recidivist laws a wide variation is found., This chapter, presented in a categorical interrogative form, aims to show the likenesses and differences in these various laws.

1. WHO IS A RECIDIVIST AND THEREFORE PUNISHABLE BY AN AGGRAVATED PENALTY? a. A person sentenced to a penitentiary term having previously served one or more such penitentiary terms. This is the definition used in fifteen states and the District of Columbia. Four of these-Iowa, Massachusetts, New Hamp- 23 Sellin, T., "Prison Tendencies in Europe," Journal of Criminal Law and Criminology (hereafter referred to as J. C. L. & C., Vol. 21, No. 4. 1 Arkansas, Delaware, Maryland, Mississippi, North Carolina, South Carolina, and Tennessee . z Constant reference to the appendices is necessary in reading this chapter if the reader desires to know the specific states and conditions involved in the point undèr discussion.

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shire, and Utah-stipulate that the prior penitentiary sentence must have been for a period of three years or more. Some of the states do not specifically designate the type of penitentiary in which the previous sentence must have been served. Some indicate that the penitentiary may have been either a state or federal institution. In Connecticut, however, the law is so worded that it covers neither of the aforementioned conditions and it has been interpreted therefore as meaning that the prior sentence must have been served in a state penitentiary. For example, in the case of Delmonto v. The State, the court held that the defendant was not subject to the maximum sentence according to the law because he had served his previous term in a federal penitentiary.,

b. A person convicted of a felony having already been con- victed of one or more previous felonies. Fourteen states use this definition of a recidivist. This represents the broadest approach 'to the question of previous record. The unique feature of this particular definition lies in the fact that neither the term of the previous sentence nor the character of the felony is taken into consideration . Criticism of this definition has been made on the basis that it is too broad and therefore ambiguous . The argument centers about the fact that a felony-is not universally defined and that what may be a felony in one state may be only a in another. Justice, it is claimed, is not therefore granted to all ôffenders .4

c. A person convicted of a specific crime, or one of a list of specified crimes, who has been previously convicted of one of these, or of a similar crime.5 There may be some doubt as to whether all the statutes considered under this definition of recidivism are "general" 3 24 Corpus Juris Secundum (hereafter referred to as C. J. S.,) p. 1151. This discussion naturally leads into the question of the territorial coverage and limitations of the statutes. This is specifically treated under Question 2 in this chapter. 4 The discussion of this argument is not specifically relevant in this monograph . It may be stated here, however, that those who have made this criticism give neither adequate nor logical consideration to the geographic role of crime. In this connection, circumstances and intent conducive to -the crime must be given utmost consideration. The question of intent and penalty is a matter of community definition and consensus, related to geographic.locale and social attitudes . Thus the stealing of a cup of water from a person in the western desert is justifiably regarded as a more serious crime than the same act in a New England state where water is plentiful. e Reference to Appendix 3, column three, will aid the reader to under- stand better the material included in this category.

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statutes. Alabama exemplifies the point in question. In this state, increased penalty is permitted for the recommission of the same offense only. This is typical of the wording of the "specific" laws. Yet, in some aspects, this statute may be considered a "general" law. First, it specifies no distinct crime nor a resulting increased penalty for that crime. Also, the law is a statute separate and distinct from the other "specific" pro- visions in the Alabama Criminal Code. It thereby embodies, if only to a limited degree, the idea of "general" recidivation . The case of Texas is quite similar. There the offender is given increased penalty "for the same offense or one of a like nature." The remaining eleven states defining recidivism in these terms adhere closely to the idea of the "general" law. The crimes specified in their statutes cover the important kinds of criminal activity. Increased penalty is not restricted to the recommission of the same or like offense. This monograph considers these statutes as being essentially of the "general" type. Not all the states in this group specify that the previous crime must have been a felony. The state of Washington aggravates the punishment for the recommission "of any crime of which fraud or intent to defraud is an element, or petit larceny, or any felony. . . ." The Nevada and Oklahoma statutes are similarly worded.

d. A person convicted of a misdemeanor following prior convictionsfor misdemeanors. Four states define the recidivist in this manner. These laws will be examined in some detail since they recognize the incipient danger involved in the persistent recurrence of misdemeanors. In Minnesota the law covers the "unlawful selling or giving of narcotics, vagrancy, lewd or lascivious behavior, or criminal offense against women or children, or misdemeanor or gross misdemeanor involving moral turpitude." Any persons convicted for the third time of these offenses or ones of a like nature within a period of five years since the time of previous conviction "shall be guilty of being an habitual criminal." The maximum sentence shall not exceed three years. None of these offenders can be discharged until he has been examined for venereal disease. If infected, he must be given suitable medical treatment. The broadest approach to the treatment of the misdemeanant recidivist is found in Ohio. Increased severity of punishment is permitted for the recommission of misdemeanors involving moral turpitude. On the second conviction for such an offense it pro-

1945] The Treatment of the Recidivist in the United States 649

vides that the offender "shall be sentenced to not less than double the previous term." On the third conviction, the sentence must_ not be shorter than double the term of the last sentence. Under another section of this law, certain of these offenders are defined as habitual criminals. The intent of the law may be clearly seen by the following quotation : "Whoever having been convicted and sentenced for misdemeanors involving moral turpitude under the laws of this state or an ordinance of a municipal corporation in this state or elsewhere, is convicted of an offense involving moral turpitude, under the laws of this state or the ordinance of a municipal corporation. . . and [whom] the judge or magistrate is authorized by law to commit. . . to the workhouse or jail, shall be an `Habitual Offender' and may be imprisoned in such work- house or jail for not less than one year nor more than three years. In such cases the judge may order that such persons shall stand committed to such workhouse or jail until the costs of pro- secution are paid or until such time as he is discharged as herein- after provided. . ." Ohio also has a statute defining the habitual criminal in terms of specified felonies, indicating that this state regards repeated violation of the law as the criterion of habit, regardless of the nature of the offense. This is also true of Nevada and Washington which define the habitual criminal in terms of both felonies and misdemeanors . In these states, however, the differentiation is not made by a specific statute as occurs in the case of Ohio, but is incorporated in the one law. For the third conviction of any misdemeanor the law provides that the offender shall be sentenced to not less than ten years. On the fifth conviction for misdemeanors the sentence is extended to life imprisonment. e. The number of previous convictions required for an aggrava- tion of the penalty of the crime being adjudged .s Second Offense : Twenty-eight states and the District of Columbia increase the severity of punishment for second offenders. The life term is given onlyunder extraordinary circumstances unless the subsequent crime itself carries the possibility of a life sentence for afirst conviction. In NewYork, for example, one whose second offense is or armed may be sentenced to life. Neither of these crimes carries life' imprisonment as a sentence for the first conviction. Generally, these statutes double the penalty for the second a In the following discussion, reference is made to provisions under sections a, b, and c only-the' special case of the misdemeanant recidivist being excluded .

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offense, provide a minimum-maximum term for such offense, or add a specific number of years to the sentence for the subsequent crime. Maine adds "any number of years." Third Offense : Twenty-five states aggravate the penalty for the third conviction. Six of these-California, Indiana, Kentucky, Texas, Washington, and West Virginia-stipulate a mandatory life sentence for the third offense. The statutes of the other states double or triple the sentence for the subsequent crime or add a maximum number of years, or state a minimum-maximum term. Fourth Offense. Eighteen states have legislation which in- creases the penalty for the fourth offense. The life sentence is possible in all of these. Thirteen states make life imprisonment mandatory for the fourth offense. Of the five remaining states where a life sentence is optional with the court, Missouri permits it only if the fourth offense was committed while the offender was armed with a deadly weapon.

2. WHAT CONSTITUTES A PREVIOUS CRIMINAL RECORD PERMITTING AGGRAVATION OF THE PENALTY FOR THE SUBSEQUENT OFFENSE? Definition of recidivism requires not only a certain number of previous convictions, but also one which carries with it the determination of the offender's recidivism and on which the accused has not been sentenced. In some states each charge must have been separately brought and tried. This is the case, for example, in Ohio and Oklahoma. This is supplemented in some instances by the requirement that successive terms of imprisonment must have been served for the former offenses. Such is the case in Pennsylvania. In one case in the last men- tioned state the defendant was indicted, tried, and convicted of four crimes during the same term of court. On the basis of the preceding three convictions the court imposed the life penalty for the fourth offense. Upon appeal by the defendant, the court was reversed and it was held that the fourth offense must have been committed after the conviction for the third .' For of the former record it is usual to accept the authenticated records of courts or prison wardens. In most states the judgment of conviction must be final. In Oregon it has been ruled immaterial whether sentence was imposed or not on the former conviction.' The conviction itself was considered as adequate prior record. 7 University of Pittsburgh Law Review. 7:70: N-40. 1 24 C.J.S., pp. 1154.

19451 The Treatment of the Recidivist in the United States 651

Only twenty-two of the states have statutes which admit prior convictions handed down outside of _ the United States. These are so worded that the previous conviction may have been obtained "in any state, government or country" (e.g., Colorado, Florida) ; "in or out of this state " (e.g., Kentucky, Idaho) ; "in this state or elsewhere" (e.g., Ohio, Washington) ; "in any state or country" (e.g., Rhode Island) ; or "within or without this state" (e.g., Wyoming, Pennsylvania). Fourteen states have statutes which provide that the prior convictions' must have occurred within certain jurisdictions of the United States. Five of these states stipulate that the prior conviction (s) shall have been "in this state, or any other state, or by the United States." Included in this group is the statute of Indiana which designates that the prior conviction must have been secured "anywhere in the United States by a Circuit or Criminal Court." The statutes of nine states provide that the conviction or imprisonment must have been "in this state or any state" or "in this state penitentiary or reformatory or the state penitentiary or reformatory of any other state." It should be observed, therefore, that these nine states have statutes which do not cover convictions or handed down by the federal courts. Consequently, the issue cited in Delmonto v. Connecticut" could be raised in any of these jurisdictions. Five states and the District of Columbia have statutes which do not have any specific territorial or governmental delimitations. In the absence of such specific designation regarding the prior conviction or imprisonment, it has been held that previous convictions must have been had within that state in order to permit aggravation of the penalty." Some unusual cases have arisen in connection with the definition of the term "conviction" itself. This is exemplified in the case of The People Ex. rel. Marcley v. .Laves, Warden, ei al.11 Nlarcley had been sentenced to life imprisonment under the Baumes Law for a fourth felony, after having pleaded guilty to the charge of grand larceny in the first degree for theft of an automobile. His previous record was as follows: (1) sentence suspended for attempted larceny of a motorcycle, (2) sentence suspended for burglary in the third degree wherein he had entered a chicken-coop and stolen chickens, (3) sentence to three and one- half years for burglary in the third degree wherein he had stolen automobile accessories from a garage. In his appeal he argued 1° Cf. p. 647, supra. 11 Idem. See also notes 91 and 92 on same page. 12 254 N.Y. 249.

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that such suspended sentences were not convictions in the true meaning of the law. It was held by a majority of four to three that a person having pleaded guilty three times, but whose sentences had been twice suspended, had not been convicted three times within the meaning of this law." An unusual interpretation occurred in the state of Missouri. The defendant was being prosecuted under the Habitual Criminal Act due to his prior record of convictions. The defendant raised no argument against the fact that he had been formerly convicted. His point was that his last conviction had not been final. Specifi- cally, he had not been discharged from prison either by parole or through expiration of his sentence on the former conviction but had escaped from the penitentiary. The court held in favor of the defendant as the statute had not incorporated this contin- gency, for the law reads. . . "if any person convicted of any offense punishable by imprisonment in the state penitentiary or of any other attempt to commit an offense which, if perpetrated would be punishable by imprisonment in the penitentiary, shall be discharged, either upon or compliance with the sentence, and shall be subsequently convicted of any offense committed after such pardon or , he shall be punishable. . . ."14 Pardon following a prior conviction raises a definite issue regarding the question of the contributory status of the previous sentence. The conflict of authority here is great. Most of the recidivist statutes are in agreement that pardon does not exempt or absolve the former conviction, especially if the pardon was conditional. In seven states pardon due to innocence does exempt the offender for the conviction involved cannot be counted as prior record. In three states-Kansas, Maine, and Missouri- pardon from a prior conviction is disregarded, whether for inno- cence or not. In the remaining jurisdictions the recidivist statutes contain no stipulations concerning this practice.

3. IS IT NECESSARY TO CHARGE THE OFFENDER WITH BEING AN HABITUAL CRIMINAL OR RECIDIVIST? The statutes of seven states require that the offender shall be indicted for "recidivism" (as defined by statute) as well as for the latest crime committed . New York used this procedure in the old law of 1907. In 1926 this was changed so that the "For an interpretation of the definition of the term "conviction" particularly in the narrow sense implied in this case, see Posner, op. cit., p. 612. 14 Murphy, D., "The Habitual Criminal Act in Missouri-A Rule of Evidence," Kansas City Law Review, 4 :120-121.

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offender in this state no longer need be indicted both for the latest crime and as a recidivist at the same time. Separate for the latest crime and for being a recidivist means that at any later date, when and if a complementary record is found, such , record may be used against the offender in charging him with recidivism without infringing upon the constitutional question of . This further relieves the prosecution from the immediate need of securing complete previous record of the offender. In four states the laws allow the offender to be charged as a recidivist either by or by information. In thirteen states it is specified that the prosecuting attorney shall have filed with him the necessary information. In fourteen states and the istrict of Columbia. no stipulation is made concerning this point. Generally there is no statute of limitation governing the prosecution of a person as a recidivist. Pennsylvania is the only exception to this. In this state the offender must be prosecuted within two years after his last conviction. Pennsylvania also has an unusual statute of limitation regarding the time intervals between crimes. In order that the offender may be sentenced to life imprisonment on the fourth conviction, such fourth con- viction must have occurred within five years after the expiration of his last term. If he commits no crime within this five year period while he is at liberty, but subsequently is convicted of an offense, he cannot be imprisoned for life unless the crime committed carries a life sentence upon the first conviction.

4. THE DISCRETIONARY POWER OF THE COURT IN IMPOSING THE AGGRAVATED SENTENCE . In most states the statutes are mandatory, and the court thereby has no choice but to impose the sentence exclusively indicated in the law. Of the seventy-two laws in force in forty-one states and the District of Columbia, sixty-one (or 85 per cent) allow no discretion to the court. a. Second Offenses -Mandatory-21 -Optional- 8 (plus the District of Columbia) b. Third Offenses -Mandatory-24 -Optional- 1 (Virginia) c. Fourth Offenses -Mandatory-16 -Optional- 2.11 11 The mandatory character of the statutes of all the states has been extremely obscured by one case. In the case of The People v. Simmons, the

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5. OTHER CONSEQUENCES OF A CONVICTION AS AN HABITUAL CRIMINAL OR RECIDIVIST. a. Parole: In only four states do the "general" statutes make mention of parole. New Jersey does not grant parole to fourth offenders. In California, a third offender is required to serve twelve years before he may become eligible for parole. The fourth offender in this state is denied parole." Both Michigan and New York, operating under the indeterminate sentence, allow consideration at the expiration of the minimum term. In the case of New York, such minimum term is set at fifteen years for fourth offenders. In many states, however, parole restrictions are placed upon certain offenders as stated in the specific parole laws. For example, seven states allow no parole to prisoners formerly con victed of felonies a specified number of times." Montana, North Dakota, Oregon, and Texas exclude second felony offenders from parole. New Mexico and West Virginia exclude third offenders. In Washington, the parole of habitual criminals is forbidden.l$ Second offenders must serve a minimum of five years before becom- ing eligible in California. However, if this second offense was committed with arms, ten years must be served. Five years must be served by the first offender who was armed." b. Pardon : The effect upon this practice has been discussed in section 2 of this chapter. c. Commutation: New Jersey is the only state whose statute places restrictions on this practice. In this state a third offender gains no commutation time whatsoever, being compelled to serve his full sentence. Also, for the second offense according to this statute, the offender must serve as extra time the commutation time that he gained during his first term. d. Sterilization: Ten states have statutes which allow under certain conditions the sterilization of recidivists or habitual criminals. Some of these laws specifically state that the offender mandatory "shall" in the Baumes Law was held to be discretionary by the court. This case occurred before the Baumes Law was revised in 1932 (People v. Simmons, 226 N.Y. Supp . 397) . However, the interpretation of the mandatory "shall" might afford sufficient basis for the same interpretation by other courts in states whose laws are still so worded . 16 Ex Parte Rosencrantz, Cal. 271 Pac . 902. 17 Montana, New Mexico, North Dakota, Oregon, Texas, Washington, and West Virginia . These states follow no uniform policy in prescribing the number of previous convictions necessary to make the prisoner ineligible for parole. See Attorney General's Survey of Release Procedures, Vol . II, Parole, Department of Justice, Washington, 1939, p. 109 . 11 Idem . 11 Idem, note 36.

1945] The Treatment of the Recidivist in the United States 655

must be designated as an habitual offender who is reported by the prison warden or superintendent as needing sterilization. Such statutes exist in Idaho, Utah, North Dakota, Iowa, and Oregon. Washington provides that all those "convicted three or more times of felony and sentenced to serve in a penitentiary therefore" may be sterilized. In Utah, the Superintendent of the State Industrial School or State Prison may recommend sterilization if he is of the opinion "that it is for the best interests of the inmates. . . or society." Such candidates, however, must be described as habitual criminals, degenerates, or having criminal sexual tendencies.2° California, one of the states leading in the sterilization and eugenics movement generally, exhibits a politico-legal non- sequitur in its statute. The law stipulates that offenders having been twice committed to prison for rape or seduction,, or who have three times been committed for any crime, and who- "show perversion in prison" shall be sterilized. If the provisions of this clause were literally fulfilled in practice, it would be perhaps necessary to sterilize the majority of offenders in the California prisons.21 ° There is much doubt concerning the non-punitive aspect of the sterilization operation. In the Nevada law of-1929, which sanctioned such an operation, it was held to be a cruel and unusual punishment, and the statute was therefore invalidated.22 In Oklahoma the issue became so intense and distorted that-in 1935 the legislature was forced to define in more specific terms the habitual criminal who was to undergo such operation. Accord- ing to the 1933 law of this state the habitual criminal eligible for sterilization was defined as any person three times convicted of a felony, and over sixty-five years of age, who upon release from custody was recommended for sterilization by the warden." In 1935 such- an habitual criminal was defined as ". , . a person, male or female, who, having been twice or more times convicted to final judgment for the commission of crimes amounting to felonies involving moral turpitude, separately brought and tried, either in a court. of competent in this state, or any other 211 Revised Statutes of Utah, 1933, 89 : 0 :1. 21 It is not irrelevant to point out here the lack of understanding and insight that most persons inexperienced in prison life manifest in regard to sex perversion among prisoners. The so-called "crime against nature" is treated as a serious offense in any prison of the country . Yet the sponsors of these laws and the proponents of the sterilization law described above apparently fail to comprehend that such rulings will not prevent perversion in prison so long as the prisoners themselves live in a perverted environment . 22 Nevada Code of 1929, s. 9977. 23 Oklahoma Session Laws, 1933, Ch. 46.

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state in the United States, is hereafter convicted . . . for . . . a felony involving moral turpitude, and is sentenced therefore to serve a term in the Oklahoma State Penitentiary or State Reform- atory, or in any other like penal institution, now or hereafter maintained by the state of Oklahoma."" Recent developments, however, have established that even this revision of the act was insufficient as the statute has been ruled invalid by the United States Supreme Court. In Justice McReynolds' opinion ". . . there is a feature of the act which clearly condemns it. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment." This opinion was handed down in the case of Jack T. Skinner v. The State of Oklahoma." Sterilization has gained little in importance in the United States in the past ten years. Many persons still believe this to be an effective method of preventing the procreation of criminals and of curbing the sex drive of certain offenders. Adherents feel that in this way society is better protected from such criminals. On the other side, there is the argument that, excepting cases of defective delinquents, the sterilization of an offender is a retali- atory or punitive measure. Further analysis of this problem is not warranted here.

6. THE CONSTITUTIONALITY OF GENERAL RECIDIVISM. Four main issues have been raised regarding the constitution- ality of the general recidivism laws. The "due process" and "equal protection" clauses of the Fourteenth Amendment have been in the main the bases for most appeals. Of almost equal importance have been appeals based upon the premise that these statutes were ex post facto laws, tending to place the defendant in double jeopardy.2s All of these clauses supposedly protect the individual from cruel and unusual punishment. The statutes have generally been held valid as against such constitutional objections,27 for habitual criminality has been held to be a state or condition, not a crime in itself.2$ Ample illustra tion of this point of view is afforded in such a statement as the following: "statutes authorizing a more severe penalty to be inflicted on one who is a persistent offender do not create an offense, nor inflict unusual punishment for the prior offense, nor do they authorize a conviction on a charge of being an habitual criminal : 24 Session Laws of Oklahoma 1935, Ch. 26, Art. 1, s. 3. 26 Note quoted in J.C.L.&C., 33:1:61 . 28 Protections derived from Article Five, United States Constitution . 27 Note quoted in J.C.L.&C., 33:1 :61. 28 Ibid., p. 1143 .

1945] The Treatment of the Recidivist in the United States 657

They merely prescribe punishment for the subsequent offense which is to be more severe, because the oi~ender's persistence in the perpetration of crime evinces a depravity which merits a greater punishment. While it has been held that the prior conviction is no ingredient of the offense itself, there is some authority to the contrary (cases in Georgia and New York wherein previous offenses were excessive speeding and driving while intoxicated) . The statute in some jurisdictions is regarded as a reformatory measure and contemplates an enhanced punishment for a party who . . . does not reform, but persists in committing other offenses of a like character."2s The cases of Blackburn" and MacDonald" indicate the court's attitude on this point and further illustrate the ruling resulting from appeals based upon double jeopardy and ex post facto laws. In both cases the Massachusetts court held that the law was fair and just and that individuals who were recidivists should receive harsher punishment than thosewho had never before been convicted. In both cases, the court continued, these offenders were sentenced to a greater punishment than for the first offense because they now became a part of that class of "dangerous" criminals. One of the earliest and most frequently cited cases of this character was that of .Graham v. West Virginia.32 Graham was convicted and sentenced as a first offender. When he arrived at prison he was recognized as a former inmate. He was therefore returned to court and re-sentenced as a persistent offender. He contended that this was a cruel and unusual punishment. The previously mentioned issues of double jeopardy and ex post facto legislation also entered the case. The court held, however, that the law was just and sentenced him to life imprisonment. The cruel and unusual punishment issue was also raised in another classic case. Elizabeth Rosencrantz was sentenced to a life term in California for the fourth offense of forging and cashing bad checks.33 Inher hearing ona writof habeascorpus her allegation was that life imprisonment without the possibility of parole was a cruel and unusual punishment. The court held, however, that this was not so. It stated that the imposing of life imprisonment constituted a time-honored and coventional procedure in dealing with certain types of offenders, Further. it explained that the 21 Ibid., pp. 1143-45. 3o Blackburn v. State, 36 N.E. 18. 2i MacDonald v. State, 180 U.S, 311. 32 Graham v. West Virginia, 224 U.S. 616. 31 Cf. Rosencrantz, Cal. 271 Pac . 902 .

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practice of parole was not an inherent right given to all citizens by the state, but was, in reality, a privilege granted to certain types of prisoners.

From the preceding material it is seen that even though the approaches and decisions of the courts vary, essential agreement is present concerning what constitutes recidivism.

THE APPLICATION OF THE LAWS OF GENERAL RECIDIVISM It has been shown that forty-one states and the District of Columbia have seventy-two laws of general recidivism on their statute books at the present time. It would now seem pertinent to inquire into the effectiveness of these laws as demonstrated by their application. Statistically it is practically impossible to ascertain the extent to which tnese statutes have been used. Judicial statistics do not segregate the offenders sentenced under these laws. Neither do prison statistics, as these offenders are not separated from others when incarcerated. Certain special investigations indicate the use of these laws in some isolated instances. These, however, are usually confined to only those cases where the life sentence is involved. Thereby, such figures would actually represent the minority of the actual number of cases handled. In Indiana, the law of 1907 has been applied on the average of once per year.' For the four-year period from 1927 until 1931, only three life termers were found in the California prison system Thewho were sentenced under the habitual criminal act.2 Crime Commission of New York reported 199 cases sentenced to life under the Baumes Law for the period of 1926-1931.3 Until 1933, the life imprisonment clause of the habitual criminal act in Pennsylvania had not been used at all. Since that time this clause has been applied in less than half a dozen cases. Kansas is the only state in which an investigation has been conducted concerning the actual use of its recidivist law. The findings and conclusions of this investigation stand as a guide-post in the present analysis and application of these laws. The report ' Report of the Indiana Committee on Observance and Enforcement of Law, 1931, p. 20. 2 Wentworth, H.E.: A Study of Recidivist Legislation in the United States . Unpublished manuscript . s State of New York: Report of the Crime Commission for 1931, p. 19.

51 . The Treatment of the Recidivist in the United States 659

of this commission covers the records of the Kansas State Peni- tentiary from 1928 to 1935. During this eight-year period, of 1933 with previous convictions, only 457 or 23 per cent of the eligible offenders were sentenced under the act. Extreme irregularity in sentencing was found . Some judges made quite constant use of the law, While others failed to use it at all. During the period studied, 217 men were _sentenced to life imprisonment. During the same period, however, 40 offenders with five or more' previous felony charges received "first offender" sentences. The statistics in themselves appear to constitute a convincing acknow- ledgment of the apparent injustice of such a condition. If the law had actually been applied, one of every seven prisoners in ]Kansas would have been sentenced to life imprisonment as habitual offenders. At the same time, two of every seven pris- oners would have had their sentences doubled as a result of their recidivist activities.4 _ The only conclusion one may draw from the preceding meager statistics is that although these laws are still on the statute books they are seldom used. One of the main reasons usually given for the failure to use these laws is that both the public and the courts are not in favor of such harsh punishment as these laws represent. This may well be true as far as the court is concerned. ®n the part of the public, however, there is some doubt. Generally, public opinion is the proponent of harsher treatment for dangerous offenders. It is quite probable that the laws of general recidivism arose as a result of public opinion, for the public evidently recognized the futility of meting out short sentences to repeaters. Whatever the punishment should be, it is at least agreed at the present time that the persistent offender represents a definite' danger to the group and should be restrained in some way. Murphey makes a statement which carries significant implications when he says "the habitual criminal should no more roam the streets than ahopeless maniac."' Barnes carries the idea one step further when he advocates that incorrigibles, regardless, of the gravity of their offense, should be held in restraint by the penal system where they can do no harm and that, the length of the imprisonment should,, as in the cases of mental patients, depend 4 The Operation of the Kansas Habitual Criminal Law. Research Department of Kansas Legislative Council, November, 1936. . e Murphey, V., "Limitations of Baumes Fourth Offender Laws," St. Johns Law Review . 4:325, May, 1930.

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not only on the material and moral gravity of the offense, but also upon the results of the treatment given.' Although in some instances the laws may seem prejudicial, the philosophy behind them is not illogical. The severity of punishment maywell have been considered harsh, but the necessity of developing this sort of treatment for such offenders was believed to have been desirable. For example, Senator Baumes put the question in this way: "If a man, after being convicted of four felonies, has not given clear evidence of his anti-social nature and the danger of allowing him at large, it may be asked when will that time arrive and how many opportunities is he to have?"' The clamorous hue and cry to "do something" was greatest in the '20s when these laws became so prominent. Inefficiency and corruption were rampant in the courts. Racketeering and gangsterism prevailed over political and judicial controls. In 1925, in astudy made by the New York Crime Commission it was found that in King's County, New York, only 12.5 per cent of the 25,000 felony cases were prosecuted and punished. Of 20,000 felony cases handled by the Magistrate's Courts, 60 per cent were released. Judges of the Court of General Sessions had dismissed 45 per cent of their felony cases on pleas of not guilty. It was further known that the District Attorney of New York County had accepted an extraordinary number of pleas of guilty of lesser offenses.' The legislature and the public thought such facts warranted investigation. Either too many innocent people were being arrested, or too many guilty offenders were being freed in some manner or other by the judiciary. As a result, mandatory and severe though it was, the Baumes Law was passed in the following year. The harshness of this legis- lation was intentional, as it was meant to safeguard the life and property of citizens. The legislature thought this goal might be attained by divesting the court of its discretionary power in certain types of cases and confining the judiciary to specified limitations. Yet, Herzog characterized this resulting legislation as representative of mass hysteria, for the trial judge now became a mere figurehead and wielded no discretionary power whatsoever in the cases of fourth offenders.' The advo- cates of the law were convinced, however, that the criminal does react to imminent pressure of the law and that the Baumes " Barnes, H. E., "Criminology," Encyclopedia of the Social Sciences, Vol. 4, p. 584. 7 State of New York: Report of the Crime Commission, 1927, p. 13. 8 Ibid., 1929, pp. 17-18. s Quoted by Posner, H. R., "Criminal Law-Prior Convictions ; Baumes Law," J.C.L.&C., Feb., 1931, p. 615.

1945] The Treatment of the li'ecividist in the United States 661

Law frightened and deterred them at the same time.i° They spoke of "the bum's rush" to prison in the cases of many offenders who pleaded guilty in order to get their over with in a hurry and get into prison before the laws wereplaced inoperation." Opponents were convinced that the enactment of the Baumes Law in New York was responsible for the prison riots in that state which occurred at about that time. It is their contention that these riots resulted from resentment on the part of the prisoners. This charge is somewhat dubious, for riots do not usually result from such causes, but are related to institutional practices connected with food or discipline. No matter how logical. and necessary the public and the legislature thought this law, they did not find the courts in agreement. The courts were vehement in their criticism of the act on the grounds that . it exacted a most severe penalty. It is extremely doubtful if this was the real, reason for the court's objecting to the legislation. It is quite probable that the vested discretionary power of the court was invaded and that this was regarded as a 'supreme catastrophe. In the Baumes Law, as in the cases of other types of severe mandatory legislation, the courts rebelled. This has been the customary reaction of courts to such legislation. In England during the 18th century, when the death penalty was mandatory for most felonies, it was not an unusual practice for the jury to devaluate stolen goods in theft cases so that the value involved would be below the felony minimum. In this manner the mandatory death sentence could be evaded. In some cases at that time, many professional crooks preferred to be charged with a capital offense, for they felt that both the court and the jury would be more dispôsed to acquit them under the circum- stances. Here again, the mandatory and - severe character of the law was defeated.12 As a result of the opposition of the courts in the United States to these laws, most of these statutes have remained inoperative. It is doubtless true that in . the majority of instances the court evaded in one manner or another. the specific provisions of these acts. The devious subterfuges employed by the courts in this rebellion are many. Two of the more important and usual devices are sufficiently interesting to be mentioned here io State of New York: Report of the Crime Commission, 1927, p. 8. u Ibid., p. 10. 12 Hall, J.: Theft, Law and Society, Boston, 1935, pp. 102-105 .

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A method used in New York and many other states has been the acceptance of a lesser plea by the court. In this way many felonies have been prosecuted as misdemeanours.11 Yet in New York even when the mandatory "shall" was replaced by the permissive "may," the prosecutions under the act did not increase but continued to decline.,' Posner gives an outstanding example of the courts' evasive practice by the unusual definition given to the term "conviction" under a Baumes Law trial." The evasion of the Baumes Law by the courts of New York state afford an excellent example of the manner in which the courts in general appear to have nullified the provisions of laws of this type. Specifically, the Baumes Law - making it mandatory for the court to sentence the fourth felony offender to life imprison- ment - was not one of the more rigorous laws. It became the object of intense criticism mainly as a result of notoriety it gained because it was applied much more often than the recidi- visit laws of other states. Before 1927 the courts were not dis- turbed by the mandatory phraseology of the 1907 act, for the procedural difficulty in it made the law hardly applicable. However, in 1927, with the removal of this difficulty by the substitution of the stipulated conditions in the Baumes law, the court found itself shorn of its discretionary power in sen- tencing fourth felony offenders. From the time of the original application of the new Baumes Law until the revision of its mandatory clause in 1932, the revolt of the court may be illustrated by three cases. In 1927, Joseph Gowasky and Theodore Hemerlein were charged with being fourth offenders and therefore liable to life imprisonment. Their latest crime had been attempted burglary in the third degree. The court held to the wishes of the legis- lature in this case and sentenced both men to life. At the same time, however, the court criticised its own action, which, it maintained, was the necessary result of the inflexible mandatory law. In this way the court informed the legislature of its antagonism. is

" Sargent, w.H., "Modification of the Baumes Law," New York State Bar Association Bulletin, 4:340-3. ,a This does not necessarily reflect the attitude of the court. It is quite possible that since the repeal of prohibition less need for recourse to these laws has been present in view of the removal of a prime factor in the spread and aggravation of "racketeering" tendencies. 11 Op . cit., p. 612. Posner is referring to the Marcley Case . See p. 22 supra. 11 People v. Gowasky et al., 155 N.E. 737.

1945] The Treatment of the Recividist in the United States 663

The dissatisfaction with the law became more evident in the case of 1Vdarcley v. Lawes, Warden, et al., wherein the court openly defied the legislature and avoided using the Baumes Law by employing an unusual definition of the term "conviction."" Climaxing this series of events was the case of The People of New York v. Simmons." In this case the court reversed the legislature on two points. First, it was held that Simmons would have been placed in double jeopardy if he were to be sentenced on the basis of his newly discovered previous record. Secondly, the court interpreted the mandatory "shall" as being discretionary. As a test case the result had the desired effects. Shortly thereafter, the mandatory character of the- Baumes Law was revised and the discretionary power returned to the court. Cost of prosecution has been one of the arguments advanced against the enforcement of general recidivism laws. This issue was raised not only by the court but also by penal administrators. In this respect it was shown that if all the recidivists were to be punished under these laws there would be lengthier court trials in view of the greater probability of more cases being defended. This naturally would entail greater expense in collecting evidence for the state. As, a result of the greater number of prosecutions more offenders would very likely be sentenced so that the state would thereby have to spend public funds to expand its peni- tentiary services to provide facilities for the additional convicts. Little use was made of the habitual criminal law in Wash- ington because of the requirement under this act to establish- personal identification of the defendant. Therefore, in many cases the state had formerly found it necessary to summon and pay expenses for law officers coming from as far as Texas and Florida to identify the accused." When fingerprints were later substituted for this means of identification, some few cases were prosecuted. Kansas officials stated their case in about the same terms as Washington. Kansas further showed great concern about the necessary expense to the state for increasing the prison services." . Perhaps one of the most valid criticisms of the recidivistic laws was that they were not catching the more important criminals who really should have been prosecuted. As Barnes stated, "they were not getting the 'big boys,' but only the little ones."21 17 Marcley v. Lawes, Warden, et al., 254 N.Y. 249. 18 Cf. p. 653 supra. 11 State of Washington: Sixth Report ofthe Judicial Council, 1939, pp. 8-9. 21 Operation of the Kansas Habitual Criminal Law, op. cit., p. 54. 21 Barnes, H.E. : Battling the Crime Wave, Boston 1931, p. 102 . .

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Sutherland agrees with this and goes so far as to condonethe action of the courts in this matter, for he is quite convinced that the law was specifically designed for catching only the unimportant amateurs and not the important offenders.22 Three outstanding conclusions regarding the application of the laws of general recidivism have been made. The Kansas research report concluded as follows: "One very fundamental conclusion is visible. The legislative policy as expressed in the Habitual Criminal Laws bears no particular resemblance to the enforcement policy of prosecutors and judges. Nor do these policies . . . [consider] problems of administration faced by institution officials in handling inmates." The report attributed the greatest difficulty in the enforcement of the laws to those selected offenders who were sentenced under it and that such great irregularities arose in regard to their sentencing that enforcement of the Habitual Criminal Laws seemed impossible. As a result of this study, the mandatory life sentence was repealed in Kansas at the 1937 session of the legislature.23 In a final analysis, the opinions of Sutherland and Barnes sum up the criticism of these acts. Generally, it is Sutherland's opinion that although the segregation of the least reformable offenders has been secured by the Habitual Criminal Acts, the courts have been unwilling to enforce them. Consequently, about the only important result of these laws is the questionable practice of reducing many major charges to lesser ones.24 Barnes, in a like vein, is of the opinion that these laws helped undermine and demoralize criminal jurisprudence by promoting extra-legal bargaining on the part of prosecuting attorneys, and further, caused excessive juggling of indictments.25

IV SUPPLEMENTARY LEGISLATION*-PUBLIC ENEMY LAWS It may be justly said that in the United States the recidivist laws have never been successful. During the previously men- '-'Sutherland, E. H ., Principles of Criminology, New York, 1939, p. 613 . a : Operation of the Kansas Habitual Criminal Law, p. 4. 24 Sutherland, E.H., op. cit. p. 532 . 25 Barnes, H. E. : op. cit., p. 102. See also Elliott, M .A., op. cit., Ch. 10 . *This monograph will not consider the various "defective delinquent" statutes in operation in several states . In some instances these statutes are closely related to the recidivist laws. They usually incorporate the indeter- minate sentence and in some instances the offender may be held for further confinement following the expiration of his sentence. Like the recidivist laws, the basis for the sentence is not the crime committed so much as the state or condition of the offender . Generally, however, these "defective delinquent" statutes are limited to juveniles-especially those who are sexual offenders . In some instances (Massachusetts and New York) the

1945] The Treatment of the Recividist in the United States 665

tioned periods of widespread and intense interest in the enactment of such laws and subsequent attempted application. there was a cogent need for them. Yet, political corruption, severity of the penalties involved, infringement of the mandatory character of the laws-upon the discretionary power of the courts, in conjunction with an indefinite penal philosophy caused them to fail. In the '20's and until the repeal of the Prohibition Amend- ment in the early `30s, the recidivist laws themselves, however, were not the only legislative methods which attempted to control the dangerous offenders. These were the days of the machine gun and the "beer baron." Many states recognized the futility of dealing with. these offenders under recidivist legislation or any other existing laws. Many of the offenders were persons who had never before been convicted of felonies, and in many instances the offender was too influential to be more than fined when brought into court. Both the courts and the public knew of the activities of many of these offenders but there seemed no apparent way of dealing with them. As a result, there arose the so-called "Public Enemy Laws." These laws were broadly discretionary acts which could be interpreted as covering practically any form of anti-social activity, but were especially directed against those persons who were conceived as representing an extreme danger to the community. In the majority of instances these laws have not been con- sidered as recidivist or "habitual" offender acts. Essentially, however, they are. They specifically and importantly represent- a stage in the development of the treatment of the habitual. criminal which cannot be omitted from any - discussion . These laws constitute an improvement over the recidivist laws in that the offender need not have been convicted of a certain number of crimes, either felonies or misdemeanors . They were not subject to the great amount of criticism as were the. recidivist laws, although they were, nevertheless, generally invalidated. The court had wide discretionary powers, since sentencing was mandatory. Further, the judgment of the court was based upon the general characteristics of each individual case. The term "gangster" became a well-known term in the middle 1920's. As a result of the activity of the gangster and his "war machinery," in 1927 seven states' enacted some form of statutes are further limited to offenders below a specified mental age . In a final analysis it may be said that these statutes apply only to offenders exhibiting some mental anomaly . For an excellent brief summary of these laws see the articles by Bennett, Perkins, and Mimms in Law and Con- temporary Problems, 9 :4:617-650 . 1 California, Indiana, Iowa, Massachusetts, Minnesota, New Jersey, and Rhode Island.

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legislation directed specifically against the use of the machine gun-an instrument of gang warfare variously known at that time in underworld slang as a "typewriter,'" "violin," "chopper," etc. Much like the various recidivist laws, the Public Enemy Acts became extremely popular and by 1935, twenty-three states and the District of Columbia had followed the lead of the original seven states.2 Colmar interprets the origin of these acts quite broadly, insofar as they represented a reaction to more than just the failure of the recidivist laws. They may be considered a reaction to the failure of normal penal legislation as well, since neither prevented the activities of these criminals.3 Therefore, the various legislatures interested themselves in defining groups or classes of people who were likely to commit crime or who were commonly believed to be criminals, rather than persons who had already been convicted . The theory underlying this legislation was that in every community there were certain individuals who were more likely to commit crime or to be engaged in criminal activities than others, and that these persons could be restrained from such activity only by some form of legislation which defined their illegal operations in widely inclusive terms. Under this broad and illusive principle, the various types of "Public Enemy" legislation were designed to punish people for what they were rather than for what they did.4 It is somewhat difficult to classify these acts, as there is too much overlapping to differentiate them accurately. The classi- fication used herein is by method of dealing with these offenders rather than by specific nomenclature.' Three general methods of dealing with the so-called public enemy, or gangster, appeared 1. Vagrancy Statutes and Ordinances: Under these laws, criminals who were known could be apprehended as vagrants if no specific charge could be brought against them. These 2 Freedman, M., Gangster Statutes, Southern California Law Review 11:365-7. 3 Colmar, J., "Public Enemy Legislation," J.C.L.&.C., 29 :736-8. ' Prosecution under the federal income tax provision, application of maximum , and many of the vagrancy statutes employed against the "public enemy" were laws of long-standing . They were re-interpreted as a result of their needed application to the end in view ; i.e., restraining the habitual offender at least temporarily. e This classification essentially follows that of Eimbeck, C.V., in "Some Recent Methods of Harassing the Habitual Criminal," St. Louis Law Review, 16 :148-162. The classification of Colmar is worth noting although it seems distorted in some instances and also has some serious omissions. For example, Colmar classifies the Habitual Criminal Acts as a category of Public Enemy legislation generally . See Colmar, J., op. cit., p. 736.

19451 The Treatment of the Recidivist in the United States 667

methods were quite successful in St. Louis and Chicago. They were not means of discriminating against the actually unem- ployed, but were temporary means of restraining the operations of those persons whose occupations were suspicious or unlawful. In Chicago this led the local Crime Commission to designate public enemies in -order of their importance to the police and danger to the community. The first such list carried the names of twenty-six gang leaders in the Chicago area. Many of these were caught and held, even though for a short time only. Many others fled the city fearing apprehension under terms which possessed the considerable merit of being able to surmount even the technical-legal abilities of their " mouthpieces '.' (defense attorneys). In St. Louis many prosecutions occurred under the city's vagrancy ordinances. In this city, the vagrant was defined as "any person who shall be engaged in any unlawful calling whatsoever." Here, as in Chicago, such persons were designated as being Public Enemies. The "Gangster Statute" of New Jersey belongs in this group as do others. These, especially the New Jersey statute, will be discussed in a later part of this section. Alabama and Virginia specifically enacted Conspiracy Sta- tutes; incontradistinction to the vagrancy laws of most states. These statutes actually represented nothing more than an increase in the scope of the conspiracy laws already in operation in those states. These laws are essentially the same as the vagrancy statutes, especially that of New York, in that they are based on the illegality of the purpose persons may have in associating with other persons of ill-repute. Reputation Laws and the power to arrest upon suspicion may both_ be considered in this category. In the former, the situation is practically' the same as in any vagrancy statute violation wherein the occupation or source of income is of questionable character. In the latter, the vagrancy classification again suffices,, as herein known criminals were arrested actually on suspicion, but held legs!lly under the existing vagrancy ordinance. 2. Prosecutions Under Federal Income Tax Provisions In this category were found persons who could not usually be punished by the vagrancy statutes or by the imposition of high bail. The action, of course, was taken against these persons in the form of charges of evasion of paying their Federal income tax on properties or monies they were known to possess. Unlike

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the average law-abiding citizen who might have made a mistake or tried to evade the tax under minimal conditions while securing a legal source of income, these offenders were often punished to the full extent of the law. Prosecutions of this type were especially successful, for the federal government officials were less hindered by the political considerations of state officials. The outstanding case of this type was the prosecution and resulting imprisonment of Al Capone in Chicago. President Hoover criticized the use of this provision for such prosecutions .' It is probable that he did so, however, under juridical pressure from the various states which suggested that this action on the part of the federal government presaged a national usurpation of the states' police power. In reality these cases were both just and necessary to the welfare of both the state and the nation, and there could scarcely be an infringe- ment of states' rights when the provisions of the federal law were of long standing and definitely stated. No criticism of the application of this law was made by the Bar, so that it may be assumed that such criticism emanated from the lawyers representing the gangster or from local politicians interested in his welfare. 3. Application of Maximum Bail: By this method many known criminals were frequently held for long periods. up to $50,000 were not infrequent in New York and Chicago. In many instances the amount could not be immediately raised by the offender and the purpose of the method was served.

In Public Enemy legislation, as with the Baumes Laws, New York's lead had an important influence on the actions taken in other states. The first act there was passed in 1931 (New York Laws 1931, ch. 722), amended in 1932 (ch . 58), and further revised in 1935 (ch. 921) . The construction of this act is worth noting. Originally in this law a crime was considered as consisting of two parts. Primarily involved was the act of association with known criminals and unsavory characters ; secondarily, the unlawful purpose which is relevant to this association. Theoretically, then, the legislature was assuming that all persons associating with known criminals were doing so for some illegal or unlawful purpose. In the original statute this unlawful pur- 6 Efmbeck, C.V., op. cit., p. 159.

1945] The Treatment of the Recividist in the United States 669

pose had to be proved by the prosecution and the defendant was not guilty unless so shown. This was the main defect in the act and was the reason for the later revision of it. For example, most police officials found it almost impossible to prove illegality of purpose.? As a result, the later amendment con- tained a presumptive clause wherein it was presumed that any person consorting with thieves was doing so for some unlawful purpose. Under this condition, the defendant was considered as guilty until proven innocent. If he were unsuccessful in proving, his innocence, he was charged with disorderly conduct and punished accordingly. In the original law, association with known criminals was not considered as prima facie evidence of unlawful purpose. The act further considered three types of vagrants : . (1) persons with no visible means of support; (2) any person formerly convicted of larceny, burglary, or pick-pocketing who was found loitering in a crowd; (3) habitual criminals found in the possession of certain tools.' In New Jersey the most drastic legislation was passed in the form of the "Gangster Act." Under this statute, a gangster was an enemy of the state and was defined variously as: (1) any person, excepting members of military or police forces, who is found in possession of a machine gun or sub-machine gun : or, (2) any person who is not engaged in a lawful occupation who is a member. .of a gang consisting of-two or more persons, who three times before has been convicted of being a disorderly person, or who was formerly convicted of any crime in any state. Such designated persons could be punished by a fine of not more than ten thousand - dollars or imprisonment of not more than twenty years, or both. The acts passed by Massachusetts and California were similar to the New Jersey law. Perhaps as drastic, or even more so than the New Jersey Act was the Massachusetts statute.' In this act, any crime of violence committed while possessing a machine gun or making use of a machine gun made the offender liable to a minimum of twenty years imprisonment. Furthermore, for the more possession of a machine gun, a minimum sentence of ten years could be invoked. This was possible because of a presumptive clause in the act which considered the intent of use. This act has been compared as equivalent to invoking the life sentence for the mere possession of this weapon.l° The penalties of the California Act were less severe. Here the Friedman, A., "War on Crime," St. John's Law Review, 10 :169-75. s Statutes of New York, 1935, Ch. 921. 9 Massachusetts Acts, 1935, S. 290. 11 Southern California Law Review, 11 : 367, note 16.

670 The Canadian Bar Review [Vol. XXIII

minimum penalty for any offender armed with a deadly weapon was five years if no previous record of crime was found, and ten years if the defendant were formerly guilty of a felony." The constitutionality of these acts was attacked almost specifically on the basis of their violation of the "due process" clause of the Fourteenth Amendment. Most of them were declared unconstitutional because the acts were too general or too ambiguous to inform the citizenry actually what they intended to prohibit. A general criticism of infringement upon personal liberty of the individual emanated from this argument, in that one would never know if he were violating the statute as it was not always known whether friends or acquaintances were engaged in criminal activity. Along the same line of reasoning it was argued therefore that the acts considered an unreasonable classifi- cation of individuals and allowed too great discretionary power to the courts in their decision as to who might be charged under the provisions . In this manner, the New Jersey statute was finally declared unconstitutional by the Supreme Court after frequently having been declared otherwise by the State Supreme Court.12 In New York, after the revision of the statute to include the presumptive clause, most of the lower courts held that "association without evil intent with persons of bad repute cannot be made a crime." Thereby the presumption of illegal purpose was obviated and the courts declared themselves to be protecting innocent persons who had associated with known criminals; consequently, any unreasonable classification of persons or arbitrary action on the part of the court was prevented and adherence to the "due process" clause was maintained . One cannot help but agree with Colmar that these acts presage great social significance as evidenced by the wide dis- cretionary powers granted the courts. He criticizes them, however, on the grounds that too many innocents might be involved." However, this latter criticism is not quite just consider- ing the circumstances of the enactment of these laws. Given an honest, competent, and non-political court--which ought to be a postulate-it should be possible to separate the innocent from the guilty by these methods. An interesting suggestion was made in New York as a substitute for the act there, which, if feasible, would be a definite handicap to the habitual criminal. It was advocated that it '1 Statutes and Amendments to Codes, California, 1937, Ch. 543, S. 1168 . la 24 C.J .S . 1146 ; see note 63. ~a Colmar, J., op. cit ., p. 738.

1945] The Treatment of the Recidivist in the United States 671

be a felony knowingly to live on the proceeds of crime. In this regard any suspicious person could be cited by a sworn com- plaint to show the source of his income. Any failure to show such source would be prima facie evidence of . 14 Unsuccessful as these acts were they were of great importance by the mere signification of the trend they portend. The broad definition of criminal groups, the wide powers given to the courts, and especially the resulting action of the court which was to be based on the situational-personality characteristics of the defendant, speak for themselves in this relation. It perhaps matters little at this juncture that most of these acts were invalid- ated. What is more significant is that they were applied in many necessary cases and that the results seemed advantageous . Further, the court, in many cases, saw the merit of throwing off its old shades, It viewed as meritorious and fair this type of legislation which world restrain certain individuals before their apparent danger to society as criminals became real. Thereby the commission of more serious crime would be prevented.

V CONCLUSION A brief, condensed survey of the treatment of the recidivist in the United States has been presented. In the United States no special treatment has-been accorded the persistent offender as in many European countries. The only mechanism employed here has been increased severity of punishment. This punish= ment, especially of late, has developed as a result of the ineffective judicial and penal techniques of the early '20s. The public's distrust of "soft" penal legislation was then at its height. The harsh treatment which resulted from the general recidivist laws was not successful, as is witnessed by the strenuous opposition of the courts and criminologists generally. Public Enemy Laws were hardly more successful . In the issue between the courts and the public, both,have had the same end in view-the reformation or restraint of the recidivist The problem in the past, however, has been that each has approached the goal from different points of view, The public, distrustful of prevailing court procedures, has sought to advance more arbitrary measures in the form of mandatory legislation; The court, not wishing to lose part of its traditional and preced- ental powers, has rebelled. The logical solution to the issue 14 Editorial, "A. way to Reach Racketeering," 39 Law Notes 4.

672 The Canadian Bar Review [Vol. XXIII

appears to be in the form of a third agency, which has appeared as a compromise or mediator. Both the court's attitude and the public's argument have mellowed with the times. The courts have begun to recognize the fact that they do have a definite task as a socializing agency and that many traditional legal procedures are no longer suited to present day needs. The judge, for example, is no longer the sole determiner of justice but in many cases is now advised by experts in the field of human behavior. At the same time, the public has learned to some extent that the various release pro- cedures in operation are not always harmful simply because the offender is released before the termination of his sentence. Better publicity and the competent handling of these release procedures by civil personnel have gone far to instruct the public concerning the advantages of these practices. In reality, then, both the public and the court have given part of their powers to this mediating agency. This, for the sake of inclusive simplicity, may be called the sentencing board. These boards function under various names in several states. They differ from the conventional parole board specifically in that they may designate a tentative sentence for the offender and are not merely concerned with investigation into the possibilities for his release at a given time. Within certain limits given them by the court and legislature, these boards determine the length of the imprisonment .' Reviews of separate cases by such boards from time to time lead to the consideration of any new develop- ments which might tend to increase or decrease the length of incarceration. In this way there has developed a highly indivi- dualized type of treatment centered around the indeterminate sentence. This treatment is based not only upon the previous record of imprisonment, but also upon the analysis of the previous and present personality-situational characteristics of the offender. The indeterminate sentence is by no means a panacea for recidivism or crime generally. As a technique it maybe criticized as being too easily affected by local pressure or lacking the judg ment of the seasoned juror. Regardless of the intensity of such criticism, it seems that the indeterminate sentence affords the best -opportunity for the treatment of the recidivist at this time. For those recidivists who are reformable, the parole pre- diction techniques of Glueck, Burgess, Lanne, Vold, and others 1 The indeterminate sentence laws under which these boards operate are never fully indeterminate, in that no minimum or maximum sentences are stipulated . Rather, the laws are indefinite, in that they are influenced by the minimum-maximum limits set for the crimes involved .

1945] The Treatnemt of the Recidivist in the United States 673

become increasingly important, for by the substitution of these for trial-and-error methods of determining feasibility of release, it may be possible that more definite bases for release from institutional custody will be discovered in the future. Such techniques are the direct correlatives of the indeterminate sentence.2 For those lacking reformable characteristics, it seems quite possible that the indeterminate sentence can restrain them for a period long enough to prevent active danger on their release. It is perhaps not too visionary at this point to predict that the future treatment of such offenders will be similar to that of mental patients. If their attitudinal distortions or other mental anomalies can be acceptably changed, they too would be given consideration for release. If not, they would be restrained for life.

GEoRGE K. BROWN. St. Lawrence 'University. 2 The best survey of present parole prediction methods is made by Lanne, W.F., J.C.L.& C., 26 : 3 :377-400, under the title "Parole Prediction as a Science."

674 The Canadian Bar Review [Vol . XXIII

APPENDIX I THE NUMBER OF OFFENSES CONSTITUTINc, RECIDIVISM AND THE INCREASED SEVERITY OF PENALTY INVOLVED FOURTH STATE SECOND OFFENSE THIRD OFFENSE OFFENSE

Alabama " . . longer term than before, by at least one fourth, Code of 1928-Ann. unless that exceeds the long- Art. 4 ; S . 5821. est term prescribed by law."

Arizona 1. If offense would carry 5 years or more on first con- Code of 1939-Ann. viction, then imprisonment is Art. 61 ; S. 6111. not less than ten years. 2. If offense carries 5 years or less, then imprisonment shall not exceed 10 years. 3. If offense is petit larceny or any attempt which if com- mitted would carry a state prison sentence not exceed- ing 5 years, then, not more than 5 years.

California Five year minimum if not Life with possibil- Life . armed. If armed with deadly ity of parole after General Laws and weapon either at time of com- 12 years . Constitution-1939 mission of crime or arrest, Supplement minimum is 10 years . Chap. 6 ; S. 644.

Not less than one-third the Not less than long- Life . Colorado longest, nor more than twice est nor more than the longest prescribed for first three times longest Courtright Mill's conviction . prescribed Ann . Statutes of for first Colo.-1930 conviction. Vol. 2; S. 2166 a, b, c.

Connecticut Not more than double the Two previous term provided by law. tbeft convictions, General Statutes not punishable by 1930 imprisonment in Vol. 2 ; S. 6501. penitentiary on third conviction not more than three years. (S. 6502. Incorri- gibles - Repealed 1933).

District of Fifty per cent greater fine or Columbia imprisonment not exceeding one and a half times maxi- Code of 1929---S . 4 mum for first offense .

1945] The Treatment of the Recidivist in the United States 675

APPENDIX I - continued FOURTH STATE SECOND OFFENSE THIRD OFFENSE OFFENSE

Florida Not less than longest nor (Same implication Life . more than twice longest pre- as for second General Laws-1927 scribed for first offense . offense) . S.7106,

Georgia Longest term prescribed for first offense. Code of 1933 S. 27-2511

Idaho Not less than 5 years and may ex- Code of 1932-Ann . tend to life . Chap. 22; S. 19- 2414.

Illinois "Full term provided by law Not less than 15 for first conviction." years. Smith - Hurd Ann. Statutes of 1935 Chap. 38; S. 602.

Indiana Life . Baldwin's Statutes 1934. S. 2343, 2344.

Iowa Not more than 40 (S . 13397 years (S. 13400- fourth convic- Code of 1939 not more than 25 tion for petit Chap. 614,S.13396, years for Habitual larceny - not S.13400 . Criminals) . more than 3 years.

Kansas 1. If offense carries hard (S.107a.double for labor and life -then hard second offense and Statutes of 1935 . labor and life. life for third-re- Chap. 21 ; S. 107. 2. If offense carries limited pealed in 1937) . number of years then maxi- mum prescribed for first of- fense. 3. If offense is an attempt as described, then, not more .than 5 years.

Kentucky Not less than double the Life . first. Carroll's Ky. Statutes 1936 . Chap. 36; S. 1130, 1131 .

676 The Canadian Bar Review [Vol . XXIII

APPENDIX I - continued FOURTH STATE SECOND OFFENSE THIRD OFFENSE OFFENSE

Louisiana Not less than maximum nor Not less than Life . more than double maximum maximum nor Dart's Code of prescribed for first convic- more than double Crim . Procedure tion . maximum pre- 1932. scribed for second Chap. 7 ; S. 709. conviction.

Maine "Any term of years." Statutes of 1930. Chap. 147 ; S. 2.

Massachusetts Maximum provid- ed for offense in Laws of 1933-Ann . question. Vol. 9 ; Chap. 279 ; S. 25.

Michigan 1. If a sentence carried less 1. If sentence car- 1. If offense than life on first conviction ries less than life carries 5 years Laws of 1929 -then, from one-half longest -then, not more to life on first Chap. 9 ; S. 17333 to one and a half longest set than twice longest conviction- -39-40. for first conviction. for first conviction. then, life. 2. If sentence might carry 2 . If sentence 2. If offense life on first conviction-then, might carry life carries less life, or term of years not less then, life, or mini- than life for than five . mum of seven and first convic- a half years. tion - th en, Uf to 15 years. Minnesota 1. If sentence for first con- (Implication is 1. Same as for viction carries life, then, life. same as for sec- second offense . Mason's Statutes 2. If sentence for first con- ond offense) . 2. If sentence of 1927. viction is indeterminate - carries inde- Chap. 93; S. 9931. than, an indeterminate of terminate for not less than twice shortest first offense . nor more than twice the then, indeter- longest term, minate of not less than twice shortest term and a maxi- mum of life, Missouri 1 . If offense allows life sen- tence for first conviction- Statutes of 1929- then, life . Ann. 2. If offense carries limited Vol. 4 S. 4461 . number of years-then maxi- mum for first offense . 3. If an attempt-then not more than 5 years. (S . 4428 . (S . 4428. Second conviction (S . 4428. Third Fourth con- while armed with deadly conviction while viction while weapon-then penalty is in- armed with deadly armed with creased by ten years) . weapon - penalty deadly wea- is increased 15 pon-penalty years) . penalty is life)

1945] The Treatment of the Recidivist in the United States 677

APPENDIX I - continued FOUTRH STATE SECOND OFFENSE THIRD OFFENSE OFFENSE

Montana 1. If offense carries not more than five years on first con- Code of 1935 viction-then, not less than S. 11593. ten years. 2 . If offense carries five years or less on first conviction -then, not more than ten years. 3. If offense is petit larceny or an attempt which would not carry more than five years-then, not more than five years.

Nebraska Not less than ten years. If greater Compiled Statutes punishment is pre- of 1929. scribed by law for Chap. 29 ; S. 2217. the offense that shall govern .

Nevada Not less than ten years. Life. Hillyer's Nevada Compiled Laws, 1929. Vol. 5; C . 7; S. 9976 .

Hampshire Not more than fif- New teen years. Public Laws of N.H. 1926 . Vol. 2 ; C . 396, S. 1, 2.

New Jersey Not more than double . the (Implication same Life . time imposed if offense were as second offense) . N.J. Statutes 1939 first conviction. -Ann . C. 103; S. 12.

New Mexico If offense carries less than Not less than Life . life on first conviction-then, longest nor more Compiled Statutes, not less than one-half the than three times 1929 . longest nor more than twice longest for first C. 35 ; S. 4201, 02, the longest. conviction. 03.

New York If offense carries less than (Implication same Indeterminate life on first conviction-then, as for second off- sentence of Thompson's Laws not less than the longest nor ense) . fifteen years 1939 . more than twice the longest to life. Penal Laws- prescribed for first offense . S. 1941-42 . 678 The Canadian Bar Review [Vol . XXIII

APPENDIX I -continued FOURTH STATE SECOND OFFENSE THIRD OFFENSE OFFENSE

North Dakota Maximum shall be Life . twice maximum Laws of 1927 prescribed for first C. 126; S. 1, 2. conviction of off- ense.

Ohio Maximum for off- Life. ense in question. Throckmorton's Code 1940. C. 40; S. 13774-1, 2.

Oklahoma 1. If offense carries more than five years on first con- Session Laws of viction-then, not less than 1936. ten years. Art. 6; S. 1817,- 2. If offense carries less than 18. five years on first conviction -then, not more than ten years. 3. If offense is petit larceny or attempt to commit felony -then, not more than five years. 4. If offense carries life- then, life. 5. If offense carries less than life-then, longest prescribed for first offense .

Oregon Not less than longest nor Same asfor second . Lif e. more than twice the longest, Code of 1930-Ann . if offense carries less than life. C . 28 ; S. 13-2801, -02, 03.

Pennsylvania Not more than twice the (Same implication Life . longest prescribed for first as second offense) . Purdon's Statutes conviction. of 1936-Ann . Compact Edition . Title 18 ; S. 3731. Title 19; S. 921, 922.

Rhode Island Sentence plus not Life. more than twenty- General Laws-1938 five years addi- C . 625; S. 64. tional .

South Dakota Not more than twice the Same as second . longest (no minimum given) . Code of 1939. C. 13, 0611 .

1945] The Treatment of the Recidivist in the Ùnited States 679

APPENDIX I - continued FOURTH STATE SECOND OFFENSE THIRD OFFENSE OFFENSE

Texas Maximum prescribed in ordi- Life . nary case. Vernon's Penal Code-1928 . Art. 62 ; 63.

Utah Not less than fif- teen years. Statutes of 1933- Ann . Title 108; C .1, S. 1

Vermont Life. Laws of 1927. No. 128.

Virginia Sentence plus five years addi- Such additional tional . time as the court Code of 1936-Ann deems proper . S. 5054 .

Washington Not less than ten years. Life . Remington's Revised Statutes, 1932. Vol . 4; S. 2286 .

West Virginia Sentence plus five years addi- Life . tional . Code of 1937-Ann . S. 6130-31.

Wisconsin Not less than shortest term for such offense or not more Statutes of 1939. than twenty-five years. C . 359 ; S. 12.

Wyoming Supplement of Not less than ten Life . 1940 . years nor more Art. 10 ; S. 33- than fifty years. 1008A. 680 The Canadian Bar Review f Vol . xxiii

APPENDIX II MANDATORY-OPTIONAL STATUS OF U.S. RECIDIVIST LAWS

SECOND THIRD STATE OFFENSE OFFENSE FOURTH OFFENSE

Alabama ...... must ...... Arizona ...... must ...... California...... is punishable . . . shall ...... shall ' Colorado ...... shall ...... shall ...... shall Connecticut ...... may ...... D. of C...... may ...... Florida...... is punishable . . . shall Georgia ...... shall ...... Idaho ...... shall ...... Illinois ...... shall ...... shall ...... Indiana ...... shall ...... Iowa ...... shall ...... gansas ...... shall ...... Kentucky ...... shall ...... shall ...... Louisiana ...... must...... must...... shall ...... Maine ...... may ...... Massachusetts . . . shall ...... Michigan ...... shall ...... shall ...... shall ' Minnesota ...... shall ...... shall Missouri ...... shall ...... shall ...... shall Montana ...... is punishable . Nebraska ...... shall ...... Nevada ...... shall ...... shall' New Hampshire . . shall ...... New Jersey...... shall ...... may, in the court's discretion New Mexico . . . . . shall ...... must...... shall New York ...... shall ...... shall North Dakota . . . . shall ...... shall Ohio ...... shall ...... shall Oklahoma ...... is punishable ...... Oregon ...... must...... must...... shall' Pennsylvania . . . . shall ...... shall Rhode Island . . . . shall ...... South Dakota . . . . shall ...... may, in the court's decision Texas ...... shall ...... shall ...... Utah ...... shall ...... Vermont ...... shall Virginia ...... may ...... may ...... Washington ...... shall ...... shall ...... West Virginia . . . . shall ...... shall ...... Wisconsin ...... shall ...... Wyoming...... shall ...... shall

1945'. The Treatment of the Recividist in the United States 681

APPENDIX III DEFINITION OF RECIDIVISM BY TYPES OF CRIMES REPEATED

Felony follow- Penitentiary Sentence STATE Specific Offense following ing following specific offense felony penitentiary sentence

Alabama ...... Conviction for same offense . Arizona...... Prior conviction of petit larceny or any crime punishable by imprisonment in state prison .

California ...... Repetition of robbery, burglary, burglary with explosives, rape with force or violence, arson, murder, assault with intent to kill, grand theft, bribing of pub- lic official, perjury, subornation of perjury, train-wrecking, felo- niously receiving, felonious assault with deadly weapon, ex- tortion kidnapping, mayhem, escape from a state prison, or conspiracy to commit any of the aforementioned felonies . . .

Colorado ...... Repetition of burglary in any degree, confidence games, volun- tary manslaughter, murder, for- cible rape, robbery in any degree, any narcotic felony, orany attempt to commit such felonies .

Connecticut ...... X State Prison or re- formatory in this state or state prison offense in any other state. D. of C...... X ...... Florida......

Georgia...... X ...... Idaho ...... Illinois ...... Repetition of burglary, grand lar- ceny, horse-stealing, robbery, for gery, counterfeiting .

Indiana......

Iowa ...... X 3 yr. penitentiary Repetition of burglary, robbery, sentence following 3 yr. forgery, counterfeiting, larceny penitentiary sentence (value over $20), breaking and for habitual criminals . entering with intent to commit public offense any dwelling house, office, shop, store, railroad car, boat, vessel, or building in which goods, merchandise, etc ., are kept for sale, use, deposit, etc . . . .

682 The Canadian Bar Review [Vol. XXIII

APPENDIX III - continued

Felony Penitentiary Sentence STATE follow- Specific Offense following ing following specific offense felony penitentiary sentence

Kansas ...... X (also attempts which if committed would carry penitentiary sen- tence) . Kentucky ...... X ...... Louisiana ...... Maine ...... X State prison offense repetition. Massachusetts . . . X Penitentiary sen- tences of not less than 3 yrs. Michigan ...... Minnesota ......

Missouri ...... X ...... Repetition of felony or attempt while armed with deadly weapon. Montana ...... X ...... Nebraska ......

Nevada ...... Repetition of crime involving fraud, or intent to defraud, petit larceny, or any felony, following a previous felony. New Hampshire . . X Any crime following offense carrying 3 yrs. imprisonment.

New Jersey ...... Repetition of crimes enumerated in sub-title for habitual criminals . Repetition of like nature offense carrying state prison term for 2nd and 3rd offenders .

New Mexico . . . . . New York ......

North Dakota . . . .

Ohio...... Repetition of . . . "A person con- victed in this state of" . arson, burglary, burglary of an inhabited dwelling, 2nd degree murder, voluntary manslaughter, assault with intent to kill, rob, or rape, cutting, stabbing, or shooting to kill or wound, for- cible rape or rape of child under

1945] The Treatment of the Recividist in the United States 683

APPENDIX III - continued

Felony Penitentiary Sentence STATE follow- Specific Offense following ing following specific offense felony penitentiary sentence

12 yrs., incest, forgery, grand larceny, stealing motor vehicle, receiving stolen goods (value ex- ceeding $35), perjury, kidnapping, or child-stealing . Oklahoma ...... Repetition of any crime following penitentiary sentence, petit lar- ceny, or attempt carrying peni- tentiary sentence.

Oregon ...... Pennsylvania . . . . Repetition of treason, murder, voluntary manslaughter, sodomy, buggery, burglary, entering with intent to steal, robbery, arson, mayhem, kidnapping, sale of nar- cotics, perjury, abortion, pander- ing, incest, any offense committed with deadly weapon, gunpowder, corrosive fluid.

Rhode Island ...... X ...... South Dakota . . . . Texas ...... Repetition of same offense, or one of same nature. Utah ...... X Sentences of 3 yrs. or more .

Vermont ...... Virginia ...... X ...... Washington ...... Repetition of any crime of which fraud or intent to defraud is an element, or petit larceny, or any felony.

West Virginia ...... X ......

Wisconsin ...... Any state prison or reformatory .

Wyoming ......

NOTE : X signifies state adopts this definition of recidivism.