Thus the judges will come to
pronouncing the conditional sentence almost mechanically,
just as they have come to give the benefit of attenuating
circumstances by force of habit This device also was introduced in
France in 1832, in order to ``individualise punishment''--that is
to say, to compel the judge to apply his sentence rather to the
criminal than to the crime.
So long as penal procedure is not radically reformed, as we have
proposed, in such a manner that the inquiry, the discussion, the
decision upon the evidence, which are the only proper elements of
penal justice, aim at and lead up to the determination of a
prisoner's biological and psychological type, it will be humanly
impossible for the practical application of these judicial
measures to overcome the mechanical impersonality of justice,
which applies rather to the crime than to the criminal.
Hence the conditional sentence, though it was evolved by the abuse
and disastrous effects of short terms of imprisonment, and in
spite of its generating principle that ``the first fault is
pardoned and the second whipped,'' has to-day only the character
of an eclectic graft on the old classic stock of penal law and
procedure.
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