THE MANNER AND PHILOSOPHY OF PUNISHMENT.
The various punishments which are inflicted upon our law breakers are
fines, imprisonment, flogging, and death.
=Fines= produce a very useful means of dealing with persons whose
offences show a tendency to crime rather than to actual criminality. In
many cases the self-respect of the offender has not been sacrificed, and
while under arrest the sense of shame is deeply aroused. The shock from
being brought face to face with the law is often sufficient in these
persons to check any further tendency towards crime. The imposition of a
fine will satisfy the claims of justice and inflict that degree of
punishment necessary to fix the idea of abhorrence towards crime in the
mind of the offender. In the case of boys charged with petty offences
fining is often a most valuable means of punishment. To dismiss with a
caution may lead to nothing; to imprison is invariably a most disastrous
course to pursue; to flog within a gaol may be too severe but to fine is
an excellent method. The parent has to pay the fine, and as the child's
offence is generally due to the want of parental control and discipline,
the punishment reaches right home and better control for the future
generally results. Where parental control is non-existent, and there
remains no possibility of creating it, other measures must be taken
which will supply a substitute for the discipline of home life.
In some case of theft, minor assault, disturbing the peace, and other
offences which indicate a momentary and not very serious lapse of
self-control, or perhaps a somewhat vague conception of the supremacy of
the law, fines serve all the purposes of justice. A four-fold
restitution for all damage done might be taken as a standard to be
increased or diminished in exceptional cases. In all these instances the
culprit should be made to pay the fine himself even though it should
require a fairly lengthy period in which to liquidate it. Section 16 of
The New Zealand Criminal Code provides that the Court may exercise its
own discretion in imposing a fine upon any person whose offence rendered
them liable to a term of imprisonment. There are many cases, however,
even of first offenders, in which fining is quite useless.
=Imprisonment.=--So much has been written describing the various prison
systems in vogue in different parts of the world that it is unnecessary
to do much more than briefly outline them here.
(1). The congregate system. In which the prisoners are associated
together by day or by night or by both. Were the object to convert the
prison into a school of crime, no better system could be devised. The
standard of the lowest is the standard which must prevail under the
congregate system.
(2). The solitary system. The extreme opposite of the congregate system.
The prisoners are allowed to have practically no communication with
anyone whomsoever. In some countries this system is made indescribably
cruel. At Santiago in Chili in one part of the prison the inmates are
employed upon useful work under most humane conditions, and yet in
another part of the very same building a most barbarous system exists.
Mr F. B. Ward (quoted in Penological and Preventive Principles)
describes what he saw in 1893:--"In this splendid model institution
there are noisome, slimy cells, where daylight never enters, in which
human beings are literally buried alive. Under the massive arches of
enormously thick walls, where even in the outside rooms perpetual
twilight reigns, are inner cells, two feet wide by six feet long, and
destitute of a single article of furniture. Until recently, those
confined in them were walled in, the bricks being cemented in places
over the living tomb. Now there is a thick iron door, which is securely
nailed up and then fastened all around with huge clamps, exactly as the
vaults are closed in Santiago Cemetery, and over all the great red seal
of the Government is placed--not to be removed until the man is dead, or
his sentence has expired. The tiny grated window is covered by several
thicknesses of closely-woven wire netting, making dense darkness inside,
so that the prisoners cannot tell night from day. There is no
ventilation except through this netting, and no opening whatever to
admit outside air into the tomb. Low down in the iron door, close to the
ground, is a tiny sliding panel a foot long by a few inches wide
arranged like a double drawer, so that food and water may be slipped in
on shallow pans and the refuse removed. Twice in every twenty-four hours
this panel is operated, and if the food remains untouched a given number
of days, it is known to a certainty that the man is dead, and only then
can the door be unsealed, unless his time is up. If the food is not
touched for two or three days no attention is paid to it, for the
prisoner may be shamming; but beyond a certain length of time he cannot
live without eating. Not the faintest sound nor glimmer of light
penetrates those awful walls. In the same clothes he wears on entering,
unwashed, uncombed, without even a blanket or handful of straw to lie
upon he languishes in sickness, lives or dies with no means of making
his condition known to those outside. He may count the lagging hours,
sleep, rave, curse, pray, long for death, dash his brains out, go mad if
he likes--nobody knows it. He is dead to the world and buried though
living. They told us that only one man has ever survived a year's
sentence there. Those that survive six months are almost invariably
drivelling idiots or raving maniacs."
It was under similar conditions to these that the assassin of King
Humbert of Italy was incarcerated. Such a system shows a cruel
vindictive rage towards the criminal. Terrible as the offender's crime
may be, society must deal calmly and not lose self-control or give such
an exhibition of its own criminal ferocity.
=The Separate System.=--Under which the prisoners are not allowed to
associate with each other, but receive frequent visits from gaolers,
warders, chaplains, and other persons who are likely to bring beneficial
influence to bear upon them. Each man has his own cell, in which he
sleeps and works. His exercise is conducted in such a manner as to
prevent contact with other prisoners. He is allowed books and given
daily instruction. Under this system perhaps the best results are
obtained.
=The Silent System.=--A system under which the prisoners associate with
one another but are forbidden to communicate. This system cannot be
strictly enforced, and as it converts trifling matters into serious
offences, it makes the prison life a state of petty persecution.
=The Combined System.=--A system which the prisoners are kept apart
during the night but work together during the day. This system has been
adopted in New Zealand, and in the following description of the value of
imprisonment it will be understood that it is to this system that
reference is made.
A man is sent to prison because he has proved himself unfit to be at
liberty. His attack upon society was evidence of this, and society
punishes him by taking away the liberty which he has thus abused. His
dread of the prison increases as he comes under the shadow of its grim
walls, and, once having passed within, a feeling of remorse and
desperation seizes him. Its intensity or weakness will depend upon his
temperament. He is soon told in the most emphatic manner that he is to
regard himself as a felon; that he is to live with felons as a felon and
observe the habits of a felon. He is given a uniform coarse in texture
clumsy and grotesque in appearance and branded over with the broad-arrow
and with his prison number. In this garb it is impossible for a man to
preserve his sense of self-respect. If he should not be amenable to the
prison discipline he may be held up to ridicule by being compelled to
wear a parti-coloured uniform. However can a man be expected to reform
who is held up to the ridicule of felons? It matters not from which
class of life he is drawn, what his age is, or the nature of his
offence, he is thrown into the company of the worst criminals in the
land. If he were a cultured man, or a man who had known no associates in
his crime, or if his aesthetic taste was considerably developed it
matters not; he must do the same work and mix in the same company as the
most ignorant and most brutal. To utterly disregard these qualities is
to ignore the wide-open channels along which the most powerful
reformative influences may be transmitted. If his recovery is to be
considered these are most substantial assets. They are, as it were, "the
general health" of the patient suffering from a local lesion. Yet our
prison system not only ignores them but patiently sets to work to
destroy them, as if their possession were an additional offence on the
part of the criminal. Prisoners who try to keep aloof from their
associates may often be made to suffer very considerably for it. Others,
craving for some association, soon fall in with men whom they would have
regarded, a few days previously, as impossible companions. The almost
entire absence of elevating influences makes it easy for the
concentrated power of evil to become irresistible. The gloom of the
prison rises, the fear of the law vanishes and the new born tendency to
crime becomes a confirmed habit. A man needs either a very strong will
indeed, or else to be supported by powerful social traditions to enable
him to resist the evil influences of prison life. A few men do resist
and maintain their sense of self-respect in spite of all indignities and
bad influences. Some sink as under a torture; some sink and are enticed
and absorbed into felony. These last will plan their future crimes while
they are serving their first sentence. Henceforth the prison is their
home.
What purpose is thus served? Why should a man who has lost self-respect
be continually reminded of it? If a man is diseased he is not placed
amongst filthy conditions and the emblems of sickness and death crowded
upon him. His removal from all unhealthy surroundings is the first
essential necessary for his recovery, and the same should be observed
with the criminal. He should be entirely removed from criminal
surroundings and efforts made to eradicate the criminality which has
expressed itself. Society has not the right to degrade a man, much less
to school him in crime. If he prove absolutely incorrigible (a very
difficult matter to ascertain) he should be banished from society for
all time either by life-long imprisonment or by death. If not, the
carrying out of his punishment must be performed with a very sacred
sense of responsibility. All manner of means are taken to relieve and
cure the physically sick; much greater surely should be the means
employed to heal the morally and socially sick.
Another matter wherein our prison system might be justly criticised is
the scale of diet provided for the prisoners. No one asks that they
should be given luxuries, but it might at least be recognised even in
prison that one man's food is another man's poison, that one fattens
where another starves, and that variety is essential to good health. A
prisoner who was serving a very long sentence once said to the author,
"fancy having the same dinner every day of your life." Let one fancy it,
boiled beef every day except Sunday, when roast beef is provided. The
same meal every day, the same clothes to wear every day and all day, and
the same routine to go through. What wonder is it that in the confirmed
criminal many faculties appear to have atrophied. They have obeyed a law
of nature. The popular comment is no doubt--"what else do you expect?
They deserve it all, they have brought it upon themselves." We expect
that our criminals should at least be treated like the by-products of
our mills and factories, i.e. made the most of. Bitter prejudices must
give way to the dictates of reason and humanity.
Practically the "combined system" produces no good results. It satisfies
neither justice, humanity, nor economy. Neither is it efficient to
afford protection to society. It satisfies prejudice and vengeance
alone. The only system of imprisonment which is of any value and which
the State ought to consider is one which converts the gaol in every
essential into a "crime-hospital."
Concerning life imprisonment much apprehension exists in the public
mind. The prevailing idea is that this sentence implies incarceration
for a period of twenty years. This is due perhaps to the fact that in
England the sentences of "lifers" are reconsidered at the end of that
period, and in the majority of cases a pardon is granted. The New
Zealand prison regulations contain this section (116) "No rule for the
remission of life sentences will be laid down. Such sentences are passed
on persons guilty of the very gravest offences; and the Governor will
only extend the royal prerogative of mercy to such persons in
exceptional cases." Under certain conditions life imprisonment is the
only way of dealing with criminals who refuse to reform. Those
conditions do not exist in our New Zealand prisons, and a life sentence
served within their walls is the most cruel form of punishment our laws
allow. The prisoner enters the gaol with a long, dark, hopeless future
before him. As the years roll by not one ray of light brightens his lot.
He can never better himself. He suffers, he is meant to suffer, the loss
of all he holds dear (and even a murderer holds some things dear). This
absolute loss, this complete severance of all ties, produces a most
agonising mental state and afflicts the poor wretch with untold horrors.
He is made to drag out an existence under most unnatural conditions,
conditions in which every effort he makes towards self-improvement is a
useless one, every aspiration is routed, the natural affections crave in
vain for an object to fasten upon, and where an artificial atavistic
process is set in motion so powerful as to defy the resistance of all in
time. This is no imaginary picture, a man is a man, and one of the
cruellest tortures to submit him to is to deprive him absolutely of hope
and make good his evil because it requires an effort which is useless,
and evil his good because it is easier and costs the loss of nothing.
Perhaps the majority of lifers are those whose sentences have been
commuted from the death penalty. Such a sentence is in reality the death
penalty carried out under slow process extending over many years.
Gradually remorse and despair do their work upon the natural instincts,
the mind and the body. The man becomes brutalised, insane and dies. An
exception here and there may be pointed out; but given twenty men of
same age and good health, and sentence ten to twenty years, and ten to
life imprisonment, and the chances are that (under reasonable
conditions) the ten with the defined sentence will survive it, whereas
of the lifers the majority will be insane within twelve years. The
following testimony will, however, be of greater weight:--
The Directors of the State Prison in Wisconsin in their report for 1881
add:--
"The condition of most of our life prisoners is deplorable in the last
degree. Not a few of them are hopelessly insane; but insanity, even,
brings them no surcease of sorrow. However wild their delusions may be
on other subjects, they never fail to appreciate the fact that they are
prisoners. Others, not yet classed as insane, as year by year goes by,
give only too conclusive evidence that reason is becoming unsettled. The
terribleness of a life sentence must be seen to be appreciated; seen,
too, not for a day or a week, but for a term of years. Quite a number of
young men have been committed to this prison in recent years under
sentence for life. Past experience leads us to expect that some of them
will become insane in less than ten years; and all of them, who live, in
less than twenty. Many of them will, doubtless, live much longer than
twenty years, strong and vigorous in body perhaps, but complete wrecks
in mind. May it, therefore, not be worthy of legislative consideration
whether life sentences should not be abolished and long but definite
terms substituted, and thus leave some faint glimmer of hope even for
the greatest criminals?"
Sir E. Du Cane stated in 1878 before the Royal Commission on Penal
Servitude Acts:--
"I myself do not think much of life sentences at all. I would rather
have a long fixed term. I think all the effect on the public outside
would be gained by a shorter period."
Mr W. Tallack, late Secretary of the Howard Association, writes in his
"Penelogical and Preventive principles":--
"Of life imprisonment it may be conclusively pronounced very bad in even
the best form of it. Years of enquiry and observation have increasingly
forced this conviction upon the writer.... A fixed limit of twenty years
would greatly aid the discipline of its subjects. And what is of more
importance so far as the public are concerned, it would, in most cases,
avail to practically incapacitate or effectually deter the persons who
pass through it from any repetition of their crime. The mere natural
operation of age, decay, and disease would tend towards this result; and
not only so, but it would, in a considerable proportion of cases, render
the limit of twenty years a virtual sentence in perpetuity by the
intervention of death. But meanwhile the elements of hope and other
desirable influences would be largely present, notwithstanding."
To say the least of it our criminals have a claim for humane treatment,
and no sentence should have a greater duration than twenty years. The
term also should be fixed when the sentence is imposed.
=Flogging.=--This is an extremely unpopular form of punishment, owing to
its abuse in the old convict stations and in the army and navy. Yet
there is a great deal to be said in its favour. In 1898 the Howard
Association instituted an enquiry among the most competent authorities
as to what were the best methods of dealing with juvenile offenders.
Nearly 40 replies were sent in answer to their circular of enquiry, and
with but one or two exceptions these replies advocated whipping as the
most expedient method. The Chief Constable of Liverpool
stated:--"Whipping has been found a most efficient and HUMANE
punishment. During the last FIVE YEARS 489 boys were once
whipped. Of these, only 135 have been again convicted. Of the 135, 44
were whipped for the second time. Of the 44 only 10 were convicted a
third time, and 2 only for a fourth time. No other punishment can show
such a record...."
Our Criminal Code describes a whipping as being a punishment of not more
than 25 strokes with the cat-o'-nine-tails inflicted upon a person of
not more than 16 years of age. A flogging is limited to not more than 50
strokes and not less than 25 inflicted upon a person of over 16 years.
Three floggings at intervals for one offence is the maximum amount of
castigation allowed.
A description of the "cat" may not be out of place. The handle is round
and of uniform diameter of one inch. It is about 30 inches in length and
is light as cork. The "tails" (nine in number) are made of cord similar
to fishing cord, about an eighth of an inch in diameter and 33 inches in
length. In each tail a strand is taken out, wound round and put back,
thus making a bob. There are 27 of these bobs in all. A flogging with
such an instrument would no doubt be very severe, but it need not draw
blood nor leave marks for all time. A flogging properly administered
should produce sharp stinging pain and leave no bad results whatever.
Then it becomes a very useful punishment to use upon such men as those
whose crimes are characterised by cruelty. Men who violate, torture, or
frighten women, who are cruel to children or take advantage of the weak,
imbecile or defenceless might well be punished with a flogging. In fact
it is questionable whether any punishment is so effective. These men are
cowards one and all; they do not dread the lazy life of the prison, but
a flogging has great terrors for them, and its moral value is
considerable. In bygone years men who were flogged were often worse than
before. The flogging had demoralised them. These floggings were,
however, shockingly cruel. Nothing is to be admitted but the sharp
swishing and this, when properly carried out, is totally without any
objectionable feature.
There seems no necessity to combine a flogging and a long term of
imprisonment under one sentence. The maximum punishment of three
floggings might be given within a period of two months, and the culprit
then in most cases discharged. As to the advisability of ordering more
than one flogging a great deal might be said. Fifty lashes and the man
discharged within a week would be sufficient for the majority of cases.
For a very brutal crime or for a second offence of the same nature, a
second flogging after a period of days might be thought necessary. The
very greatest care, however, must be exercised in the administration of
this punishment. The crimes of brutality rightly arouse the indignation
of the public, but there is no need to show a brute that society can be
a greater brute than what he is. Being a brute, leniency invariably
fails, but unimpressionable to these methods as his moral and humane
instincts are, his skin remains sensitive, and through it his instincts
may be appealed to and quickened. Flogging makes him consider that the
practice of brutality is in direct variance to his own personal
interests and comfort. From this he may be led to moralise further.
Gangs of boys who are becoming a nuisance to the neighbourhood they
infest are quickly broken up if their ring-leader is treated to a dozen
strokes that he will not feel inclined to boast about. The mercifulness
of this punishment is seen in its power in thus effectively stopping the
tendency to crime. Larrikins, unnatural husbands and fathers, brutes and
torturers, cattle maimers and stack burners, all see their personal
interests lying in a very different direction to that which leads to the
"cat."
=Capital Punishment.=--The authority to take the life of a fellow-man is
based on God's word to Noah, "whoso sheddeth man's blood by man shall
his blood be shed;" and upon the abstract idea of justice "a life for a
life." These words in no sense contain a command to us of this century
to execute all murderers without exception. For the present state of
civilisation a new principle has been evolved which is, that when a man
shows himself to be unchangeably hostile to society then his life may be
forfeited. As the methods of dealing with criminals improve so the word
LIBERTY is being substituted for the word LIFE. The sin on the
man's soul may be left to God; all that men has to deal with is his
anti-social attitude. If impossible to change this attitude then either
death or life imprisonment must result. This very question of
possibility is so uncertain that few modern criminologists care to
adjudicate, and most regard the death sentence as anticipating too much.
Life-imprisonment, under the highest moral influences, becomes life-long
by and only by the continued resistance of the criminal. It is not the
objectionable form of punishment previously described for it encourages
the man to put forth his best effort to improve, and substantially
rewards these efforts, even to granting him his liberty if he persevere
with them. Punishment by death is becoming more and more unpopular. The
dislike of juries to bring in a verdict of "guilty" in a murder case is
sufficient testimony to this. In the crowds who sign petitions for the
reprieve of the condemned, the hysterical element is too prominent to
make any other estimate possible. But the reaction is steady, and it
will not be long before capital punishment becomes a thing of the past.
To abolish it before a suitable substitute were provided would be
mistake.
Gradually society is awakening to the fact that the condition of the
criminal ought to be ameliorated, and that there can be no real
amelioration which does not make definite efforts for the prisoner's
reform. The aim should be to assist every man to recover by his own
effort the place in society from which he has fallen. No man is
incapable of improvement, and under a wise systematic discipline most
men do improve. A remarkable witness is found in the experience of Dr
Browning who was engaged as Surgeon-superintendent of convict ships
between 1831 and 1848. Of one voyage from Norfolk Island to Tasmania he
was in charge of 346 "old hands." These men had agreed to take terrible
revenge upon some of their comrades who had been employed as constables
over the others. Under Dr Browning's instruction and discipline their
purpose was abandoned. He landed the men in Tasmania without having
inflicted a single punishment upon the voyage. He remarks:--"The men
were given to me in double irons; I debarked them without an iron
clanking among them. I am told that this is the first and only instance
of convicts removed from Norfolk Island having had their fetters struck
off during the voyage, and being landed totally unfettered. They were
almost uniformly double-cross-ironed and chained down to the deck,
everybody being afraid of them. I was among them at all hours and the
prison doors were never once shut during the day. To God be all the
glory." Three Governors of Tasmania expressed their high opinion of Dr
Browning's system and of its subsequent effects upon their behaviour.
(Vide "Christianity amongst Prisoners." Howard Ass.:)
In the famous Dartmoor prison and at Borstal in Kent experiments are
being made to secure a greater number of reformations among the younger
convicts. It is too early to estimate the value of the systems being
tried, but they are being watched with much hope and expectation. In
America there is a decided tendency to substitute State reformatories
for prisons, especially in the case of the young. The Elmira Reformatory
has been established for more than a quarter of a century, and its
claims to have reformed 82 per cent. of the men committed to it has been
upheld by the special enquiry instituted in 1890.
If these different systems were more closely studied there would result
a great awakening as to the possibilities of the criminal, and society
would discover that its best interests were served by reforming its
offenders and making them moral and industrious servants of the State,
instead of by committing them to institutions where they were brought
into contact with consecrated villainy and where the unwholesome
influence is calculated to confirm them in criminal habits and make
them a constant menace and expense to the community. That our criminal
population is on the increase, and that the proportion of recidivists
grows larger every year, is scarcely to be wondered at in the midst of
such influences. Notwithstanding all that has been done to improve the
state of prisons from what they were even fifty years ago, yet the motto
"once a criminal always a criminal" is often too sadly true. The report
of the English commissioners of prisons shows that amongst those who
have been convicted during the year 1902, 51.9 per cent. of the men and
70.6 per cent. of the women had been previously convicted. In the past
these results were regarded as inevitable. Now they are regarded with
much disquietude. Formerly they were supposed to point to a defect in
the criminal, now they are understood to prove a defect in the penal
system. The reason for this defect lies in having regarded certain
objects as primary which are in reality only secondary. These objects
have been defined to be the deterrence of crime by the example of
punishing criminals; the repression of crime by the infliction of
punishment, and the protection of society as a consequence. The
deterrent value of the penal system has been greatly reduced by the
small amount of dread which it excites in the criminally disposed. The
representative value is of a minus quantity. Crime is assisted more than
it is crippled. The protection of society is secured only during the
period of incarceration. At the end of that period the criminal must be
discharged and he goes forth often a more skilful criminal than before
and with a vow to take vengeance upon society.
Regarding these objects as secondary the reformation of the offender has
been acknowledged as primary by criminologists, and they turned their
attention to study the criminal pathologically, to enquire into the
causes of crime and also to make trial of the best methods for securing
reformation. "Punishment the principle and reformation the incident,"
was the theory of the old school. The New school reverses the order to
"Reformation the principle and punishment the incident." Obviously this
course renounces the old principle of retaliation and vengeance and
embraces that indicated by Christ in his precept "bear ye one another's
burdens."
=The Philosophy of Punishment.=--The threatening attitude of the
criminal towards the peace and welfare of society makes it an obvious
necessity that society should protect itself against him, otherwise he
would soon master the situation and reduce social order to barbarism.
What are the steps which it must take? It must first remember that its
right to punish is not an inherent, but a delegated one. Though its
powers are sovereign in the sense that there is no appeal from them, yet
they must not be exercised in an arbitrary way. So far as there is a
capacity for the realisation of responsibility to God so far must that
responsibility be observed. Where this responsibility is disregarded,
society immediately becomes the greater criminal itself even though its
deeds may be done in the name of the majority of its members. As history
is not without examples of this abuse of a sacred trust neither is it
without instances of the Divine interference expressed in the
destruction of a community which had offended after this manner. This
responsibility must be acknowledged firstly--in the end to be attained;
and, secondly or subsequently--in the means by which it is attained. We
are generally informed that our penal systems exist for the purpose of
repressing crime, and that punishment is thus inflicted upon the
criminal in order that others may be deterred from following his
example. Reformation is sometimes suggested. The public, however,
concerns itself very little about its criminals and much less about the
objects which its penal system is supposed to secure for it. The
attitude of the general public towards the criminal is undoubtedly a
vindictive one. His sentence is discussed from this point of view only,
viz.:--will the suffering that he will have to undergo be sufficient to
accord with the enormity of the crime he committed? The end which is
understood is simply suffering, expiatory suffering; suffering which
neither man nor society has any right whatever to inflict upon a human
being. The old principle of an eye for an eye, while in accord with
abstract justice, was often made the occasion for abuse, and the largely
prevailing conception of justice amongst us to-day is precisely the
abuse of that same principle. Society does well in returning upon its
criminals the consequences of their acts, but the consequences should be
a natural return and not an artificial one. The criminal should see that
by his attack upon society he is excluded from all the benefits of its
system. He has isolated himself and this isolation is of itself
miserable, and will, if persisted in, become intolerable. Its final
state is Hell, a state in which society is destroyed while the social
instinct remains and craves in its unquenched agony. It is perfectly
right to show the wrong-doer the ultimate end of his chosen course, but
there is no warrant for the strenuous effort which is made to force him
towards it. A criminal's punishment should be made purgatorial and not
internal. The old penology regarded him as a hopeless individual and
proceeded with its hellish tortures without undue delay. Beneath its
system no reforms were possible, and the fact that none were ever made,
was pointed to in order to justify its horrors. Society took no interest
in them whatever while they were being pushed lower and lower down the
social scale, but met them at the lowest steps, and, halter in hand,
gravely professed the utmost concern in their future and eternal
welfare.
So far, society has failed to recognise the end of the punishment it is
entitled to impose. In the words of Dimitri Drill, a Moscow publicist,
the new penology expresses that it "renounces entirely the law of
retaliation as end, principle, or basis of all judicial punishment. The
basis and purpose of punishment is the necessity of protecting society
against the evil consequences of crime either by the moral reclamation
of the criminal or by his separation from society; punishment is not to
satisfy vengeance." We must not jump to the hasty conclusion that herein
is meant that the criminal must be treated very gently and coaxed back
to more virtuous paths. What is meant is that his punishment should be
made purgatorial and not infernal. The process of reclamation is
accompanied by far sharper pains than those which are expiatory, but
they are the pains of a healing surgery and not those of a soul
destroying brutality. Where the means for reclamation fail then
separation from society is advocated. Separation in the midst of
influences which would always tend to awaken the desire to reform and
which would give immediate assistance to that desire when awakened.
Thus the recognition of this fact that the authority to punish offenders
against its law has been, by God, delegated to the social institution,
brings with it a recognition of the responsibility which accompanies
such authority.
In primitive times most offences were punished by the death penalty, not
as a vindictive measure but because the offender was hopeless and
society helpless. That is, the social state being of a very simple
order, any infraction of its laws would declare the offender a most
pronounced criminal, bitterly hostile to society and irreclaimable by
such social machinery as then existed. The death penalty when inflicted
must ever be so regarded. Not as a life for a life but as the punishment
inflicted upon one who has by his own conduct given complete evidence
that his recovery to the social state is impossible. In this century of
civilisation it is incumbent to look upon the criminal as being in a
measure a by-product of society and to deal with him accordingly.
Outside of society crime is impossible, therefore society accounts for
crime and is also in a measure responsible for it. To this measure
exactly (although the measure itself can never be determined with
exactitude) is the criminal by-product. In a large measure he is
responsible (entire responsibility is conceivable), and it is this sense
of responsibility which makes it possible to carry out his treatment.
Large industries find that their by-products are an important asset and
to disregard them would be ruinous. Mr Frazer in his book "America at
Work" states that the expenses of the meat-packers of Chicago for 1901
amounted to L150,244,848. The sales of meat realised L124,263,998, and
yet a net profit of L6,767,638 resulted. What appears to be a paradox is
explained by the fact that a sum of no less than L32,748,488 resulted
from the sale of by-products. All the waste must be turned to dollars.
Commercial advance has certainly out-stripped social advance, and
apparently for the reason that whereas in commerce a pig's tail is
regarded as an important asset, in our social system the criminal and
the weakling are regarded as a heavy liability. When the point of view
is changed society will advance more rapidly. So, too, society finds
that it must utilise its by-products and to devise means which it can
bring to bear upon the criminal, so as to bring him to a state of
usefulness. The enormity of the crime and the degree of criminality are
alike impossible to estimate, therefore it is also impossible to define
a punishment which makes an attempt to recognise any of these qualities.
It is, however, quite possible to determine within very fair limits the
continuance of the criminal habits, also the value from a reformatory
point of view, of various social influences, and further there exists
the power to apply these influences. To sum up--society possesses within
itself the power to reform its criminals (to utilise its by-products)
and to determine when they have been reformed.
Separation from society is rendered absolutely necessary by the
criminal's own behaviour, if by his behaviour he shows that he is not
capable of using freedom profitably. But if his separation is to serve
any real purpose whatever it must be accompanied by an educational
process which will work him back to that point where he left the social
track and then so propel him forward that he may recover his lost
ground, and when restored to society be enabled to identify himself with
its progressive system.
So far our penal system is a mistake. Whatever it may be theoretically,
practically it is only vindictive. Its failure has caused some to
despair and others to reflect.