THE SPIRIT OF PUNISHMENT
(An Article in the _Daily Chronicle_, 1910.)
In the matter of our administration of justice there is a very simple
question to be asked by every man of his own conscience: What do I
believe is the object of punishment? Until this question has been asked
and coherently answered by the community it is obviously as mad to apply
punishment as for a man to set out to dine with a friend of whose
address he has no knowledge. But by how many people has this question
been asked; by how many has it been coherently answered?
The whole administration of our justice at present treads the quicksands
of ambiguity as to the object of punishment. The vast majority of us
have never put to ourselves the question at all, being quite satisfied
that the object of punishment is to “serve people right”; and out of the
small minority who have asked the question the far greater number have
given themselves no coherent answer. And yet it is only from a coherent
and wise answer, graven in letters of stone on our law courts and
prisons, in letters of feeling in our hearts, that hope of diminution in
crime, and in the damage which arises from it, both to the community and
to the offender, can come.
Now, whatever sentimental relation there be between punishment and our
deep instincts of equity, _the object of punishment is the protection of
society and the reformation of the offender_. That is the only safe rule
_in practice_; and everything in our administration of justice which
conflicts with it is falsely conceived. But it is the commonest thing in
the world for people to accept that definition without considering in
the least what it means; for experts, after thoroughly agreeing with it,
to suddenly remark that for such and such a crime they, personally,
would have no mercy; for sentences to be passed in which the judge has
obviously fitted the punishment to his private views of the heinousness
of the crime, without real regard for the protection of society, or for
the reformation of the person sentenced. All which is extremely natural,
and very bad.
The confusion arises from not keeping the idea of the protection of
society closely enough coupled with the idea of the reformation of the
offender; from dwelling too much on the past, and not looking enough to
the future; from the continued existence of the old theory, “an eye for
an eye” condemned to death over nineteen hundred years ago, but still
dying very hard in this Christian country.
The protection of Society includes the adjustment of punishment so as
not to leave on the mind of the injured person a crude sense of injury
unhealed by retribution. It includes the removal from individuals of the
desire to take the law into their own hands. It is necessary to preserve
in punishment a due element of deterrence. The State and those who
administer its functions have no business with anything but the
scientific application of the best means to do all this, and reform the
offender.
Yet in the glibbest way that golden rule “protection of society and
reformation of the offender” is cited to cover all the flaws in our
administration of justice.
In its name men are prosecuted, when with better comprehension they
should be warned or helped.
In its name first offenders are imprisoned, when with better
comprehension the _imprisonment of first offenders_, of whatever age,
for whatever offence, should be unknown; a much greater danger to
society arises, and infinitely less chance of reforming the delinquent
exists, when that delinquent has once been committed to prison. Place
him on probation, or send him to a reformatory institution such as
Borstal, for whatever fixed period may seem necessary—but to a prison,
as prisons now are, never! To send him there is fatal, hopeless,
uneconomic, unscientific.
In its name, the continuance of closed-cell confinement is defended; and
we endeavour to reform men by consigning them to the operation of what,
in the words of its staunch supporter (the late Sir Edmund Du Cane), is,
“an artificial state of existence, absolutely opposed to that which
Nature points out as the condition of mental, moral, and physical
health.” We try in fact to protect society by a method that does not
reform. Many have raised their voices against this strange practice
since evidence, given before the Select Committee on Prison Discipline,
1850, described closed-cell confinement as dangerous to health, and
unjust to the prisoner “because it throws him back into society with
diminished physical ability to encounter the variableness of climate,
the severity of labour, and the pinchings of want, to which as a
labourer in the market of competition he must ever be liable.” . . .!
Yet in the name of the golden rule the practice lingers on, helping to
rot men and women.
In the name of this golden rule, prisoners working in association are,
in our prisons, forced into an unnatural silence, for ever furtively
evaded. Some silence may be good, but perpetual silence is too unnatural
not to defeat itself. Classification is the true preventive of
contamination, not complete separation, nor perpetual silence.
In its name the handicap of the ticket-of-leave (now, thank heaven,
modified) is placed on those who are desperately handicapped already.
The idea behind these and other practices of the administration of our
justice is that much deterrent suffering is needful for the protection
of society and the reformation of the offender. But those who know human
nature know that, except in rare cases, human beings cannot be
_reformed_ by suffering inflicted on them against their will, and it is
no use having a system of punishment beneficial to the few and harmful
to the majority. The late Lord Coleridge once made these remarks:—
“There are few things more frequently borne in on a judge’s mind
than the little good he can do the criminal by the sentences he
imposes. These sentences often do nothing but unmixed harm,
though I am sure that throughout the country the greatest pains
are taken to make our prisons as useful as possible in the way
of being reformatories. But, _as a matter of fact, they are not
so_.”
Greater pains are now taken than when those words were spoken, but a man
cannot go over prisons (I do not speak of the Borstal institutions)
without seeing that they are not, _cannot be_, reformatory.
Reformation does not come from beating on the prisoner’s fibre with the
dull mallet of suffering. To reform one must inspire. There is a spark
of good in every man’s breast; the only chance lies in fanning that
spark. But if we are not reforming men in our prisons, how can we be
said to be protecting society, by sending them there? We are surely
endangering society; and nurturing the spirit of crime.
The fact of the matter is this: Revenge is still at the back of our
minds. Let a man argue on the subject with whomsoever he will, ten
minutes will not have passed before he makes that discovery. The State
still feels that because a man has hurt it, it must hurt him. And this
feeling destroys all the economy and science of our laws. When a crime
is committed, all we should be concerned with, in our own interests, is
the application of the best possible means to minimize the results of
that crime, to ensure that society shall run the least possible risk of
a repetition of the crime, and the offender the least possible risk of
remaining a criminal.
In doing this we cannot, in very many cases, avoid the detention of our
criminals; but we can, and should, avoid inflicting suffering on those
whom we detain, beyond the already great suffering and deprivation
inseparable from disciplinary detention, and all that disciplinary
detention implies; for by deliberately superadding such sufferings as
solitude, or perpetual unrelieved silence, we do not to any appreciable
degree deter others from committing offences, and we do foster in those
whom we imprison the disposition to commit fresh offences when they are
released.
That diminution of crime, depends _not_ on deterrent punishment, but on
wide and impalpable influences—growth of social feeling, spread of
education, betterment of manners, decrease of intemperance, improvement
in housing, a hundred other causes—is plain from the official statement
lately issued. “The members of the predatory classes are appreciably
fewer than in 1857, in spite of the fact that in the interim population
has almost doubled.” _And this in the face of admittedly milder penal
measures!_ For further evidence that mere severity of treatment does not
deter we need only look at the comparative success of the Elmira
Reformatory in the United States, and the Borstal institutions here.
Under these systems, which allow the offender some kind of natural life,
the percentage of those who return to crime is most notably smaller.
Crime is disease—if not in the medical, in the moral sense of the word.
It is either the disease of weakness, or of unbalanced self-will, or the
disease of inherited taint. We have fought against this conclusion
because we still harbour the spirit of revenge; but as knowledge
advances we shall, we must, accept it. And the sooner we do accept it
the less money we shall waste, the less harmful and unnecessary
suffering shall we inflict.
The difficulties of judicial and prison administration are enormous, the
force of prejudice encountered by reforming administrators terrific—all
the more terrific because these prejudices, in the main conscientious,
are wholly reinforced by the fact that change means trouble and expense,
by fears of making things worse, by all the accumulated momentum of
“things as they are.” For a man with any understanding in his
composition it is impossible not to sympathize with those who,
administering justice, earnestly desire to do their best, and are often,
one is sure, sick at heart from the feeling that what they are doing is
_not_ the best.
It rests with public opinion in this country to re-animate our attitude
towards crime; to shake itself free of our muddled conceptions of the
object of punishment; to scotch once for all the spirit of revenge; to
rise to a higher, more scientific and incidentally more economic,
conception of our duty towards criminals. Let us get rid of the idea
that we are protecting society and reforming offenders by inflicting
suffering that we falsely call deterrent. Let us change our prisons into
Borstal Institutions, and let us do it as soon as is humanly possible.
Loss of liberty is, next to loss of life, the most dreaded of all fates;
it has, in and by itself, almost all the deterrent force that is
needful. There may be here and there men who prefer to be detained under
strict discipline to being at liberty; but if there be, it can only be
said that the conditions of their lives outside prison must constitute a
disgrace to our civilization, and that our penal system cannot safely or
justly be allowed to rest on any acquiescence in that disgrace. In the
last annual report of the Borstal Association occur the following words:
“It is not a namby-pamby method. . . . The panic-monger who
prophesies that the ambitious youth of the working classes will
still clamour for admission through the gateway of crime to the
advantages of Borstal, would be regarded as a humorist by those
who have been there and ‘have had enough and learnt sense.’”
Let us, then, take discipline and loss of liberty as our sole
deterrents, and on those whom we deprive of liberty let us use all the
resources of a common sense that shall refuse to apply to criminals
methods which would be scouted in the reform of human beings outside
prisons.
All evidence shows that mere, so-called deterrent, severity is useless.
Let us no longer fly in the face of evidence. Let us conform to facts.
If we seriously desire to reduce crime to its irreducible minimum we
must go to work like doctors.