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It is unnecessary to say in a law journal that the indeterminate sentence is a measure as yet untried. The phrase has passed into current speech, and a considerable portion of the public is under the impression that an experiment of the indeterminate sentence is actually being made. It is, however, still a theory, not adopted in any legislation or in practice anywhere in the world.

The misconception in regard to this has arisen from the fact that under certain regulations paroles are granted before the expiration of the statutory sentence.

An indeterminate sentence is a commitment to prison without any limit. It is exactly such a commitment as the court makes to an asylum of a man who is proved to be insane, and it is paralleled by the practice of sending a sick man to the hospital until he is cured.

The introduction of the indeterminate sentence into our criminal procedure would be a radical change in our criminal legislation and practice. The original conception was that the offender against the law should be punished, and that the punishment should be made to fit the crime, an ‘opera bouffe’ conception which has been abandoned in reasoning though not in practice. Under this conception the criminal code was arbitrarily constructed, so much punishment being set down opposite each criminal offense, without the least regard to the actual guilt of the man as an individual sinner.

Within the present century considerable advance has been made in regard to prison reform, especially with reference to the sanitary condition of places of confinement. And besides this, efforts of various kinds have been made with regard to the treatment of convicts, which show that the idea was gaining ground that criminals should be treated as individuals. The application of the English ticket-of-leave system was one of these efforts; it was based upon the notion that, if any criminal showed sufficient evidence of a wish to lead a different life, he should be conditionally released before the expiration of his sentence. The parole system in the United States was an attempt to carry out the same experiment, and with it went along the practice which enabled the prisoner to shorten the time of his confinement by good behavior. In some of the States reformatories have been established to which convicts have been sent under a sort of sliding sentence; that is, with the privilege given to the authorities of the reformatory to retain the offender to the full statutory term for which he might have been sentenced to State prison, unless he had evidently reformed before the expiration of that period. That is to say, if a penal offense entitled the judge to sentence the prisoner for any period from two to fifteen years, he could be kept in the reformatory at the discretion of the authorities for the full statutory term. It is from this law that the public notion of an indeterminate sentence is derived. It is, in fact, determinate, because the statute prescribes its limit.

The introduction of the ticket-of-leave and the parole systems, and the earning of time by good behavior were philanthropic suggestions and promising experiments which have not been justified by the results. It is not necessary at this time to argue that no human discretion is adequate to mete out just punishment for crimes; and it has come to be admitted generally, by men enlightened on this subject, that the real basis for dealing with the criminal rests, firstly, upon the right of society to secure itself against the attacks of the vicious, and secondly, upon the duty imposed upon society, to reform the criminal if that is possible. It is patent to the most superficial observation that our present method does not protect society, and does not lessen the number of the criminal class, either by deterrent methods or by reformatory processes, except in a very limited way.