implied no moral condemnation, if it was only a scientific investigation
as to where to place him if he is anti-social, if public opinion
supported this view, then experts should be appointed by the court. On
this phase of the case there would be little need of experts. I would be
willing to go further and say that then, too, the partisan lawyer, the
hired advocate, should disappear. The machinery of justice would be
all-sufficient to take care of the liberties of every man, to give him
proper treatment in disease, to restore him to freedom when safe, and,
when that time does come, the unseemly contest in courts will disappear,
and justice, tempered with mercy, will have a chance.
XX
PUNISHMENT
Assuming that man is justified in fixing the moral worth of his fellow;
that he is justified in punishment for the purpose of making the
offender suffer; and that these punishments according to the degree of
severity will in some way pay for or make good the criminal act or
protect or help society or prevent crime or even help the offender or
someone else, what finally is the correct basis of fixing penalties?
No science, experience, or philosophy and very little humanity has ever
been considered in fixing punishments. The ordinary penalties are first:
fines, which generally penalize someone else more than the victim; these
with the poor mean depriving families and friends of sorely needed
money, and the direct and indirect consequences are sometimes small and
sometimes very great. These can be readily imagined. If instead of fines
a prison sentence is given, a sort of decimal system has been worked out
by chance or laziness or symmetry of figures; certainly it has been done
wholly regardless of science, for there is no chance to apply science
when it comes to degrading men and taking away a portion of their lives.
Generally ten days is the shortest. From this the court goes to twenty,
then thirty, then sixty, then three months, then six months, then one
year.
Why not eleven days? Why not twenty-four days? Why not forty days? Why
not seventy days? Why not four months or five, or eight or nine or ten
months? Is there no place between six months in jail and a year in jail?
The bids at an auction or the flipping of pennies are exact sciences
compared with the relation between crime and punishment and the process
of arriving at the right penalty. If in the wisdom of the members of the
legislature the crime calls for imprisonment in the penitentiary, then
the ordinary sentences run one, two, five, ten, fifteen, twenty, thirty
years, and life, according to the hazard of the legislature, the whim of
the court, the gamble of the jury, or the feeling and means of
expression of the unthinking and pitiless crowd who awe courts and
juries with their cries for vengeance.
Neither does punishment affect any two alike; the sensitive and proud
may suffer more from a day in jail or even from conviction than another
would suffer from a year. The various courts and juries of the different
states fix different penalties. Even in the same state there is no sort
of resemblance to the punishments generally given for similar crimes.
Some jurisdictions, some juries and some courts will make these three or
four times as severe as others for the same things. Some days the same
judge will give a longer sentence than on other days. In this judges are
like all of us. We have our days when we feel kindly and sympathetic
toward all mankind. We have our days when we mistrust and dislike the
world in general and many people in particular. Largely the weather
influences those feelings. Therefore, the amount of time a person spends
in prison may depend to a great extent on the condition of the weather
at the time of conviction or when sentence is passed. The physical
condition of judge or jury, and above all, their types of mind, are
all-controlling. No two men have the same imagination: some are harsh
and cruel; others kind and sympathetic; one can weigh wheat and corn and
butter and sugar; one can measure water and molasses and gasoline. When
one measures or weighs, one can speak with exactness regarding the thing
involved. Justice and mercy and punishment cannot be measured or
weighed; in fact there is even no starting point. The impossibility of
it all makes many of the humane and wise doubt their right to pass
judgment upon their fellow man. Society no doubt is bound by
self-protection to resist certain acts and to restrain certain men, but
it is in no way bound to pass moral judgments.
Under any system based on a scientific treatment of crime, men would be
taken care of as long as it was necessary to restrain them. It would be
done in the best possible way for their own welfare. If they ever were
adjudged competent to enter society again, they would be released when
that time came. Neither under a right understanding, and a humane,
scientific and honest administration, would it be necessary that places
of confinement should be places of either degradation or misery. In fact
the inmate might well be put where he could enjoy life more than he did
before he was confined. It might and should be the case also that he
could produce enough to amply take care of himself and provide for those
who would naturally look to him for support, and perhaps make
compensation for the injury he had caused to someone else.
It is obvious that this cannot be done until men have a different point
of view toward crime. In the last hundred years much has been done to
make prisons better and to make more tolerable the life of the inmates.
This has been accomplished by men who looked on criminals as being at
least to a certain extent like other men.
Above all, as things are now, the prison inmate has no chance to learn
to conform unless hope is constantly kept before him. He should be like
the convalescing invalid, able from time to time to note his gradual
progress in the ability to make the adjustments that are necessary to
social beings. No patient in a hospital could be cured if he were
constantly told that he could not get well and should not get well. His
imagination should be enlarged by every means that science can bring to
the teaching of man.
First of all there must be individual treatment. No one would think of
putting hundreds or thousands of the ill or insane into a pen, giving
them numbers, leaving them so that no capable person knows their names,
their histories, their families, their possibilities, their strength or
their weaknesses. Every intelligent person must know that this would
inevitably lead to misery and death. The treatment of men in prison is a
much more difficult problem than the care of the physically diseased. It
requires a knowledge of biology, of psychology, of hygiene, of teaching
and of life; it needs infinite patience and sympathy; it needs thorough
acquaintance and constant attention. It is a harder task than the one
that confronts the physician in the hospital, because the material is
poorer, the make is more defective, and the process of cure or
development much slower and not so easily seen.
No person is entirely without the sympathetic, idealistic and altruistic
impulses, which after all are the mainsprings of social adaptation.
Probably these innate feelings can be found in prisoners as generally as
in other men. It is the lack of these qualities that often keeps men
outside the jail. They "get by" where kindly and impulsive men fail. A
large part of the crime, especially of the young, comes from the desire
to do something for someone else and from the ease with which persons
are led or yield to solicitation.
The criminal has always been met by coldness and hatred that have made
him lose his finer feelings, have blunted his sensibilities, and have
taught him to regard all others as his enemies and not his friends. The
ideal society is one where the individuals move harmoniously in their
various orbits without outside control. The governing power of a perfect
order in its last analysis must be within the individual. A perfect
system probably will never come. Men are too imperfect, too weak, too
ignorant and too selfish to accomplish it. Still, if we wish to go
toward perfection, there is no other road.
One of the favorite occupations of legislatures is changing punishments
in obedience to the clamor of the public. In times of ordinary
tranquility a penalty may even be modified or reduced, but let the
newspapers awaken public opinion to crime by the judicious use of
headlines and a hot campaign, let the members feel that there is a
popular clamor and that votes may be won or lost, and the legislature
responds. This is generally done without reference to the experience of
the world, without regard to the nature of man, with no thought of the
victim, and with no clear conception of how the legislation will really
affect the public.
The demand is constantly made that such crimes as kidnapping, train
robbing, rape and robbery should be punished with death, or at least
with imprisonment for life. Irrespective of its effect on the criminal,
what is the effect on the victim of the criminal? A man is held up on a
lonely highway; the robber does not intend to kill. His face is exposed.
If the penalty for robbery is life imprisonment, he kills to avoid
detection. If it is death, he kills even before he robs. The same thing
operates in rape, in burglary, and in other crimes. In all property
crimes not only is no killing intended or wanted, but precautions are
taken to guard against killing. All laws to make drastic penalties
should really be entitled: "An Act to Promote Murder."
Making penalties too drastic destroys the effect meant to be produced.
Public clamor does not last forever. Men grow tired of keeping their
tongues wagging on the same subject all the time. A state of frenzy is
abnormal and when it subsides the temperature not only goes back to
normal, but as far below as it has been above. When the fury has spent
itself jurors regain some of their human feeling and refuse to convict.
History has proved this over and over again, and still politicians
always seek to ride into power on the crest of the wave; when the wave
moves back, they can easily go back with it. Even if the severe
punishments should be continued without abatement, these soon lose their
power to terrify. Communities grow accustomed to hangings; they get used
to life sentences and long imprisonments and the severity no longer
serves to awe. The cruelty serves only as a mark of the civilization of
the day. Some day, perhaps, a wiser and more humane world will marvel at
our cruelty and ignorance, as we now marvel at the barbarity of the
past.
XXI
THE EFFECT OF PUNISHMENT ON OTHERS
The ordinary man who hears of a crime hates the criminal and wants him
to suffer. He does not picture the malefactor as a man who, for some
all-sufficient reason, has committed a dreadful act. Still less does he
ask: "Has he a father or mother, a wife or children, brothers or
sisters, and how are these affected by his deed?" No one can
intelligently deal with the criminal without considering these.
Practically no inmate of a prison stands alone. He is a member of a
family or small social group, and inevitably the interests of these
others are more or less closely bound up with his. If punishment is
justified for its influence on society, these must be taken into account
with the other members of the social organization.
The criminal, it must be remembered, is almost always poor. He has a
mother, brothers and sisters, wife or children, dependent for support to
a large extent, upon his casual earnings. He is placed in jail or the
penitentiary and the family must make new adjustments to life. The
mother or wife may go to work at hard labor for a small return; the
children may be taken out of school and sent to stores or factories, be
condemned to lives of drudgery that will often lead to crime. The family
may be broken up and scattered through institutions and the poorest
shelters. A complete transformation for the worse almost always comes
over the home. It is safe to say that at least three or four are closely
touched by the misfortune of every one. These lives must be readjusted,
and the chances are that the new adjustments will not be equal to the
old, if for nothing else than because the conviction is a serious
handicap in their struggles. Let anyone go to a city jail on a visiting
day and see the old mothers, the stunned and weeping wives, the little
children, down to babes in arms, who crowd around the corridors to get a
look at the man behind the bars. To them at least he is a human being
with feelings and affections, with wants and needs. All of these can
recount his many good qualities which the world cannot see or know.
Their first step is to borrow or to sell what they can to provide means
for his defense. Everything else is cast aside. Day after day they visit
the jail and the lawyer, contriving means to save liberty or life. When
the trial comes, they watch through its maze in a dazed, bewildered way.
They know that the man they love is not the one who is painted in the
court room, and at least to them he is not. If he is convicted and goes
to prison for a term of years, then month by month the faithful family
goes to see him for an hour in the prison, visiting across the table in
open view of guards and others as unfortunate as they. The family
follows all sorts of advice and directions and seeks out many hopeless
clews for men of influence and position who can unlock prison doors. The
weeks run into months and the months into years, and still many of them
keep up their hopeless vigil; some are driven to drudgery, some to
crime, some to destruction for the man whom the state has punished that
society may be improved. It is safe to say that the state ruins at least
one other life for every victim of the prison.
No provision is made for the dependent families of the wretched man.
Ruthlessly society sends the man to prison and sees the daughter leave
school, a mere child, and go to work. What becomes of her it does not
know or care. It seems not to know that she exists. The state sees the
convict's boy working at casual tasks and growing up on the streets,
while his father is paying the penalty of his act. He may on this
account follow his father to jail; it is not society's concern.
Assuming that an offender must be confined for the protection of
society, as some no doubt must be, still the effect on the family and
how to prevent its destruction should be among the first concerns in the
disposition of the case.
XXII
EVOLUTION OF PUNISHMENT
Among primitive peoples the penal code was always short. Desire for
property had not taken possession of their emotions. Their lives were
simple, their adjustments few, and there was no call for an elaborate
code of prohibited acts. Their punishments were generally simple, direct
and severe: usually death or banishment which often meant death,
sometimes maiming and branding, so that the offender might serve as a
constant warning to others.
Primitive peoples early asked questions about their origin and destiny.
The unknown filled most of the experiences of their lives. The realm of
the known was very small. They had no idea of law and system, of cause
and effect. They early began evolving religious ideas. The
manifestations of nature, the mystery of birth, the fear of death, the
phenomena of dreams, the growth and harvesting of crops--all of these
were beyond their understanding. They peopled the earth with gods to be
propitiated and appeased. Everything was the act of a special
providence. From early times religion and witchcraft furnished the
chief subjects for the criminal code.
The penalties for the violation of the code were always severe,
generally death, and by the most terrorizing ways. No other crime could
be so great as to arouse the anger of the gods, and naturally no other
conduct should demand so severe a penalty as calling down the wrath of
the gods. This would fall not only upon the offending man, but upon the
community of which he was a part. Even as man developed in knowledge and
civilization, this sort of crime continued to furnish the greater
proportion of victims and the most cruel punishments. Torture of the
most fiendish sort was evoked to catch offenders and extort confessions.
Difference of religious opinions was the worst crime. The inquisition
became an established thing. Sometimes a nation was almost wiped out
that heretics should be killed and heresies destroyed. The heretic was
the one who did not accept the prevailing faith. The list of victims of
punishment on account of religion, witchcraft, sorcery and kindred laws
has in the past no doubt been larger than for any other charges.
This kind of laws always called out the greatest zeal in their
enforcement. To the religious enthusiast nothing else was of equal
importance. It involved not only the life of man on earth but his life
through all eternity. Our statutes today are replete with such crimes,
but the punishments have been lessened and, as a rule, communities will
not enforce them. But laws against blasphemy, working on Sunday, and
Sunday amusements of all sorts, are still on the books and enforced in
some places. A large organization and an influential and aggressive part
of the Christian Church are insisting that these laws shall be enforced
to the limit and that still others shall be placed among the statutes of
the several states.
The methods of inflicting the death penalty have been various, the
favorite ways being burning, boiling in oil, boiling in water, breaking
on the rack, smothering, beheading, crucifying, stoning, strangling and
electrocuting. Until the middle of the last century they were carried
out in the presence of the multitude so that all might be warned by the
example.
The number of crimes for which death and bodily torture have been the
punishment can scarcely be recorded, and if they could it would be of no
value. They would run into the hundreds and probably the thousands. A
large part of these crimes are now obsolete. Doubtless more men have
been executed for crimes they did not commit and could not commit than
for any real wrong of which they were guilty.
Prisons came into fashion later than the death penalty, and as a form of
punishment have gradually come to take the place of most death
penalties. Prisons in the past have been loathsome places and not much
better than death. Prisoners have been packed together so closely that
life was almost impossible. To incarcerate victims in prisons has
brought terrible punishment not only on the prisoners and their
families, but indirectly on the state. No doubt through the years
prisons have been gradually improved. Many of their terrors have been
banished. People have come to believe that even a prisoner should have
some consideration from the state. Penalties have likewise grown less
severe and terms have been shortened, but this course has not been
regular or constant; the public readily relaxes into hatred and
vengeance, and it is easy to arouse these feelings in men, since they
lie very close to the surface. A constant struggle has always been waged
by the humane to make man more kindly, and yet probably his nature does
not really change. A few months of frenzy may easily undo the work of
years.
So long as men punish for the sake of punishment, there will be a
disagreement between the advocates of long punishment and short
punishment, hard punishment and light punishment. From the nature of
things, there is no basis on which this can be determined. The only
thing that throws any light on the question is experience, and men can
always differ as to the lessons of experience. Neither do they remember
experience when feelings are concerned.
Punishment can deter only on the ground of the fear that flows from it.
Fear comes from things that are more or less unusual. Man has little
abstract fear of a natural death; it is so unavoidable that it does not
even figure in the ordinary affairs of life. Extreme punishments may
grow so common that few give them any concern. They probably are so
common now that the impression they make is not very great. Lighter and
easier punishments would have the same psychological effect. In many
cases a lenient punishment would also eliminate much of the hatred and
bitterness against the world that are common to all inmates of prisons.
XXIII
CAPITAL PUNISHMENT
The question of capital punishment has been the subject of endless
discussion and will probably never be settled so long as men believe in
punishment. Some states have abolished and then reinstated it; some have
enjoyed capital punishment for long periods of time and finally
prohibited the use of it. The reasons why it cannot be settled are
plain. There is first of all no agreement as to the objects of
punishment. Next there is no way to determine the results of punishment.
If the object is assumed it is a matter of conjecture as to what will be
most likely to bring the result. If it could be shown that any form of
punishment would bring the immediate result, it would be impossible to
show its indirect result although indirect results are as certain as
direct ones. Even if all of this could be clearly proven, the world
would be no nearer the solution. Questions of this sort, or perhaps of
any sort, are not settled by reason; they are settled by prejudices and
sentiments or by emotion. When they are settled they do not stay
settled, for the emotions change as new stimuli are applied to the
machine.
A state may provide for life imprisonment in place of death. Some
especially atrocious murder may occur and be fully exploited in the
press. Public feeling will be fanned to a flame. Bitter hatred will be
aroused against the murderer. It is perfectly obvious to the multitude
that if other men had been hanged for murder, this victim would not have
been killed. A legislature meets before the hatred has had time to cool
and the law is changed. Again, a community may have capital punishment
and nothing notable happens. Now and then hangings occur. Juries acquit
because of the severity of the penalty. A feeling of shame or some
bungling execution may arouse a community against it. A deep-seated
doubt may arise as to the guilt of a man who has been put to death. The
sentimental people triumph. The law is changed. Nothing has been found
out; no question has been settled; science has made no contribution; the
public has changed its mind, or, speaking more correctly, has had
another emotion and passed another law.
In the main, the controversy over capital punishment has been one
between emotional and unemotional people. Now and then the emotionalist
is reinforced by some who have a religious conviction against capital
punishment, based perhaps on the rather trite expression that "God gave
life and only God should take it away." Such a statement is plausible
but not capable of proof. In the main religious people believe in
capital punishment. The advocates of capital punishment dispose of the
question by saying that it is the "sentimentalist" or, rather, the
"maudlin sentimentalist" who is against it. Sentimentalist really
implies "maudlin."