THE MEASURE OF PUNISHMENT
But admitting the right to punish, where is there a man with the wisdom
to inflict punishment? By what magical scales can he weigh the guilt of a
human being, and by what standard can he determine the judgment that is
proportionate to his guilt? It must be evident that the wit of man never
did invent or can invent a measure that shall determine the just amount
of punishment for any human act. The punishment administered does not in
any way indicate the extent of the culprit’s transgression, but simply
shows the degree of brutality of the law, and of those who are given the
power of fixing the extent of punishment to be imposed. The victim whom
the law catches in its net is at the mercy of the judge. His fate depends
not upon his life, not upon what society has done for him, nor upon how
he has repaid the debt. Nor does it depend upon the intrinsic value of
his soul, for no human judgment can reach this. Neither does it depend
upon the ratio between the brain he had, and the temptation he resisted,
or the ratio between the overpowering force he met and the weak will and
intellect which heredity had bequeathed to him. His fate rests with the
humanity or inhumanity displayed, the point of view, the experience,
the prejudice, the social surroundings, the physical condition, the
appetite or the breakfast of the judge, whose light and easy duty it is
to pronounce judgment on the life or liberty of a fellow man.
Given the best equipment and the greatest knowledge and sense of
responsibility on the part of the judge, how then will stand the case?
A prisoner is arraigned for forcibly taking a pocketbook on the public
street. The instinct to do the act may have come upon him in a moment’s
time, as the opportunity seemed suddenly present and the need seemed
great. Under the peculiar circumstances of the time and place, he may
have been impelled to act when a moment’s reflection would have stayed
his hand. In a hundred cases the opportunity for the reflection was
present, and he passed through unscathed, and then there came a time when
the judgment had no chance to speak and he was lost. The crime even at
its worst differs only in degree, perhaps not in that, from the actions
of our daily lives. We look at another’s pocketbook and covet it, or
covet his home or coat or wealth—the case presents the same evil heart.
Our action, however, is tempered and controlled by judgment and the power
of will.
Assuming the man is bad, where is the judge who can measure the
punishment he ought to have? How many endless, silent, shameful days,
each made of hours that seem eternities, should he be confined for
this? How many days should drag their endless weary length into months
and years before the act should be atoned? And is justice done when the
victim, old and bent, and silent, and gray, with health destroyed and
character and hope forever gone, is once, more led out into the strange,
bewildering light of day?
There can be no measure for human conduct. All scales, rules and measures
are valueless when used to judge the soul. Even time cannot be counted.
The judge upon the bench lightly consigns his victim to a prison pen. He
measures the victim’s years by the swiftly gliding days that pass like
magic in his joyous life. To the judge, time strides with seven league
boots; even the grim specter at the end, the one skeleton at his feast,
even this ever-present shadow but hastens the magic flight of years. But
the clock that ticks away the joyous wasted moments at the banquet hall
is not the same time-piece that hangs upon the penitentiary walls. One
pendulum leaps gladly back and forth; the other moves with the weight and
gravity of human life, of human death, of endless agony, of unmitigated
pain. Time is the most obstinate of the delusive gifts that fate
bequeathes to man. When we would have her speed she moves with leaden
foot. When we would have her halt she flies with magic wings.
* * * * *
Rulers have invented and used all sorts of punishments and constantly
alternated from one to the other; each one in use seeming to be inferior
to some one hitherto untried. Corporal punishment has respectively come
and gone. Public floggings and private floggings, tortures, and death
in various ways, have met the approval and then the disapproval of
the governing power. But with all of them, crime has gone on and on,
unmindful alike of the form or extent of the punishment in vogue.
The effect of an act of cruelty and violence can never be measured or
understood. No one can tell the full consequences that occur to every
human being when the state puts one to death, or flogs, or maims, or
imprisons, or even fines. A violent act produces injury, hardship and
suffering to the victim who is powerless in the strong grasp of the law.
But the evil does not end with him.
In ever-widening circles the results of cruelty move on and on until to
some degree or part they reach every member of society. Unless punishment
lessens the sum of human suffering, increases the measure of human joy,
and thus lengthens and adds to life, it has no right to be.
Punishment brings positive evil. Any possible good that it may produce is
at the best problematical and wholly impossible to prove. From the first
victim whom the state degrades with punishment, the evil and the hardship
and suffering moves on to family and friends. In no theory of the law is
compensation, or recompense, or making good, any part of punishment. If
taking the life of the prisoner could bring to life the victim whom he
killed there might be some apparent excuse for the punishment of death.
If imprisoning in the penitentiary in any way retrieved a wrong or made
up a loss, a prison might be tolerated, and some relation might be shown
between punishment and crime. Even in cases where a fine is administered,
in place of imprisonment, the fine does not go in any way to retrieve
any loss, but goes to the state as pure punishment and nothing else.
Everywhere in the theory and administration of punishment is the rule the
same. The one purpose is to injure, to harm, to inflict suffering upon
the individual whom society sets apart.
When traced to the end, the sole theory on which punishment is based,
is that a certain man has committed an act of violence and crime, and
that, therefore, in some mysterious way this is to be made right by
inflicting an injury on him. That the original wrong will not be undone
has no bearing on the case—that others entirely innocent may suffer more
grievously than the accused is not to be considered in the infliction
of punishment. The father may be taken from the helpless children, and
these left to grow up as best they can, with their own hardships and
their father’s evil name to bear, but society stands unmoved. Though
the heavens fall, justice must be done, and justice can only be done by
inflicting pain. The execution or imprisonment of the father may not
unreasonably turn the children to follow in the path the state marked
out for him. This is not the affair of government,—not prevention or
recompense, or reward is the function of the state; but vengeance,
vengeance sure and complete.
Justice is not the function of the state; this forms no part of the
scheme of punishment. Punishment is punishment. A wife and helpless babes
may be left in want when the state lays its hand in wrath upon the man.
Under the law of natural justice the child has a right to support and
care from the father, who is responsible for its life. Still, the state,
not with a prior right, but with a greater power, takes the father from
his child, kills him or pens him, and turns the child into the byways
of the world, giving it only the heritage of the father’s shame. It is
no answer to say that such a father is of no value to the child. Many a
kind, indulgent father has violated the penal codes of man. Many a father
has been sent to prison because he so loved his child that he committed
crime.
From the nature of things there can be no justice in punishment. Justice
imposes relation between act and consequence. The judgment of man is
utterly powerless to pass upon the merits or elements of a human soul.
But justice from the state to its citizens imports some ratio between the
rewards, opportunities and punishments meted out to each. As to rewards
and opportunities, the state does nothing except to assist the strong to
despoil the weak. It furnishes no opportunity for its helpless, no chance
for development and life, and gives no rewards for meritorious conduct,
and makes no allowance for resisting temptation from crime. But aside
from all this, within the realm where the state pretends to do justice,
there is no equality meted out between its various members. The code is
unyielding, the positive dead letter of the law is man’s highest and
profoundest judgment as to the conduct of his fellows.
* * * * *
Each human soul is a separate entity, with its own hopes, desires and
fears; some impassive and stolid, some sensitive and shrinking. To be
accused of crime means more to some natures than years of imprisonment to
others. The body is not alone the subject of punishment. Man, with his
tortures and cruelties, seeks to reach the mind even more than the body.
Striped clothes furnish the same warmth as other garments, but to some
the stripes are an ever-consuming flame. To others, properly educated and
hardened by the state, this consciousness does not add to the punishment
involved. One day of forced confinement, or one moment of the indignity
of handcuffs, means more to some than a year of hard labor. The terms
of imprisonment are not the same to all. To some a term, however short,
means the blighting of a life, and the destruction of a family—perchance
a wife and child, a father or a mother, whose sorrow and shame are
greater for being indirect. With a sensitive soul no punishment ends when
the prison gates are opened up. Its consciousness lives as long as life
endures. No day is so bright, and no prospect so pleasing, but the black
shadow is ever present, blighting life, and driving hope and sunshine
from the soul.
In cases where fines are meted out those who can afford to pay escape
with comparative ease; others are forced to shift a burden of debt upon
father, mother, wife, children, or friends, who are thus punished for
years, not for crime, but for their loyalty and love. If, perchance,
through any effort the money for a fine can be obtained, the state
cruelly and brutally takes the unholy, ill-gotten cash, although it may
mean that a home is scant of food and shivering in cold or darkness; or
a little child is forced from school to a factory or store. It may mean
a plundered girlhood and abandoned womanhood, that the vengeance of the
state may be appeased. The taking of money by the state in payment of
crime is infinitely more damnable than private theft. The evils of force
and violence are unending—bold and ignorant, indeed, is he, whether
ruler, official, or private citizen, who sets in motion bitterness and
hate. It is an evil force set loose upon the earth to wander up and down,
cankering, polluting and despoiling all it meets, augmented by every
other force, to be conquered and subdued, if ever conquered and subdued,
only by infinite mercy and charity and love.
Every man, whether ruler, juror, judge or whosoever that is called
upon or volunteers to pass judgment on the conduct of others, must do
it according to his own flickering, feeble light, according to the
experiences that have made up his life. It is for this reason that good
men are so bad, and bad men so good. Life ordinarily means breadth.
Some, of course, are born deaf and blind, and the longer they travel
the road the more contracted, cold and uncharitable they become; but to
the ordinary person life means suffering and, above all other lessons,
it teaches charity. As the real man grows older, less and less does
he believe in or administer punishment, and more and more does he see
the extenuating circumstances that explain and excuse every act. The
stern and upright judge is an impossibility. No one can be stern and
upright. In proportion as he becomes truly upright, really just, the
more nearly he approaches the character of the ideal judge, the more
nearly does he understand the injustice of violence and cruelty, and
the eternal unfailing righteousness of charity and love. Where is the
man so wise or the judge so great and just that he could take any two
human beings with their different ancestry, environment, opportunities,
passions and temptations, and pronounce a judgment that would equalize
the two? Lawmakers, since the world began, have been busy undoing each
other’s wrongs. Courts have been established whose sole duty it is to
correct other courts. Unjust judgments are necessarily incident to the
infirmities of man. The wise judge who looks back over a long career, the
judge who knows human life and has a human heart, the judge who seeks to
be ruled by his conscience, will find much in his past career he would
wish undone. He will look back on many unjust judgments, on many things
done in anger and hatred, cruelty and wrong, on blighted hopes and ruined
lives. But in his whole career he will regret no act of charity, no deed
of mercy that he has been moved to do. He will look back on judgments
he would reverse, but these are not judgments of love or forgiveness or
charity, but judgments of force, of violence, of hate.