But the conditional sentence, to consider it for a moment as it
has hitherto been propounded and carried out, has two
characteristic defects, in common with the actual penal system, of
which its advocates, for the most part balancing between the
classical and positive school, cannot get rid.
In the first place, whilst the classical school has fixed its
attention on crime, and the positive school studies the criminal,
especially in regard to his biological and psychological
character, the advocates of the conditional sentence (and of the
laws which have so far brought it into operation) oscillate
between the two standpoints, considering the criminal, no doubt,
rather than the crime, but only the average and abstract criminal,
not the living and palpitating criminal, as he is to be found in
his several categories. In proof of this it is enough to observe
that the ninth article of the Belgian law admits the conditional
sentence, so far as punishment is concerned, when this punishment
does not exceed six months, EVEN IF THE PERIOD IS MADE UP BY THE
CUMULATION OF TWO OR MORE! In other words, the conditional
sentence is allowed in the case of a criminal who has
committed several offences--which substantially (except in
the few cases of connected offences due to the same action, or
arising out of the same occasion) is a mere case of relapse, and
therefore proves in the majority of cases that the law is not
dealing with true occasional criminals; for these, as a rule, like
criminals of passion, only commit a single crime or offence.
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