The Punishment of Crime : Part 1

Crime and Its Causes
by William Douglas Morrison

(Page 9 of 14)

In a previous chapter the deterrent action of punishment on the criminal population has been pointed out. It now remains for us to consider the nature of punishment, and the methods by which punishment should be carried out. What is punishment as applied to crime? According to Kant it is an act of retribution; it consists in inflicting upon the criminal the same injury as he has inflicted on his victim. It is an application by society of the principle of "jus talionis." Such a definition of punishment does not harmonies with the facts. We cannot punish the slanderer by slandering him in turn; and in punishing the murderer, it is impossible to torture him in the same way as he has probably tortured his victim. According to the theory of retribution, punishment becomes an end in itself; it is quite unrelated to the benefits it may confer on the person who is punished, or on the community which punishes him.

The difficulties surrounding the theory of retribution have led to other definitions of punishment. Punishment, it is said, is not inflicted on the offender as a retribution for his misdeeds, it is inflicted for the purpose of protecting society against its enemies. Such a view leaves moral considerations entirely out of account; it leaves no room for the just indignation of the public at the spectacle of crime. It is defective in other ways. For instance, a criminal has a particular animosity against some single individual; it may be he murders this person, or does him grievous bodily harm. Such an offender has no similar animosity against any one else; as far as the rest of the community is concerned he is perfectly harmless.

On the supposition that punishment is only intended to protect society against the criminal, a man of this description would escape punishment altogether. Or supposing a man (and this often happens), after committing some serious crime for which he is sent to penal servitude, sincerely and bitterly repented of it, and would be, if released, a perfectly harmless member of the community, such a man, according to the theory we are now discussing, should be released at once. The certainty that the public conscience would tolerate no such step shows that punishment has a wider object than the mere attainment of social security.

Punishment is only a means say some; its real end is the reformation of the offender. The practical application of such a principle would lead to very astonishing results. It is perfectly well known that there is no more incorrigible set of offenders than habitual vagrants and drunkards. And on the other hand, the most easily reformed of all offenders is often some person who has committed a serious crime under circumstances which could not possibly recur. According to the theory that reformation is the only end of punishment, petty offenders would be shut up all their lives, while the perpetrator of a grave crime would soon be set free. An absurd result of this kind is fatal to the pretension that punishment is merely a means and not also an end.

Is it the end of punishment to act as a deterrent? We are often told from the judicial bench that a man receives a certain sentence as a warning and example to others. If such is the end of punishment it lamentably fails in its purpose, for in a number of cases it neither deters the offender nor the class from which the offender springs. It was under the influence of this idea that criminals used to be hanged in public, but experience failed to show that these ghastly exhibitions had much deterrent effect on the community. Besides, it is rather ridiculous to say, I do not punish you for the crime you have committed, I punish you as a warning to others. In these circumstances the effect of punishment is not to be upon the person punished, but upon a third party who has not fallen into crime. Unless the punishment is just in itself, society has no right to inflict it in the hope of scaring others from criminal courses. Justice administered in this spirit, turns the convicted offender into a whipping boy; the punishment ceases to be related to the offense, and is merely related to the effect it will have on a certain circle of spectators.

In our view, punishment should to be regarded as at once an expiation and a discipline, or, in other words, an expiatory discipline. This definition includes all that is valuable in the theories just reviewed, and excludes all that is imperfect in them. The criminal is an offender against the fundamental order of society in somewhat the same way as a disobedient child is an offender against the center of authority in the home or the school. The punishment inflicted on the child may take the form of revenge, or it may take the form of retribution, or it may take the form of deterrence, but it undoubtedly takes its highest form when it combines expiation with discipline.

Punishment of this nature still remains punitive as it should to do, but it is at the same time a kind of punishment from which something may be learned. It does not merely consist in inflicting pain, although the presence of this element is essential to its efficacy; it consists rather in inflicting pain in such a way as will tend to discipline and reform the character. Such a conception of punishment excludes the barbarous element of vengeance; it is based upon the civilized ideas of justice and humanity, or rather upon the sentiment of justice alone, for justice is never truly just except when its tendency is also to humanize.

From the theory of punishment let us now turn to its methods. The most severe of these is the penalty of death. A great deal has been said and written both for and against the retention of this form of punishment. To set forth the arguments on both sides in a fair and adequate manner would require a volume; it must, therefore, suffice to say that in the field of controversy the contest between the opposing parties is a fairly even one. In fact, looking at the matter from a purely polemical point of view, the advocates of the death penalty have probably the best of it. It has, however, to be remembered that such questions are not solved by battalions of abstract arguments, but by the slow, silent, invisible action of public sentiment.

The way in which this impalpable sentiment is moving on the question of the death penalty may be seen, first, in the manner in which crime after crime during the present century has been excluded from the supreme sentence of the law, and secondly, in the steady diminution of capital executions throughout the civilized world. If the present drift of feeling continues for another generation or two it is not at all improbable, in spite of temporary reactions here and there, that the question of capital punishment will have solved itself.