Deterrent Punishment

Deterrent Punishment Author(s): W. A. Wall and W. A. Watt Source: International Journal of Ethics, Vol. 8, No. 2 (Jan., 1898), pp.
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DETERRENT
PUNISHMENT.
THE natureof legal punishment has been so frequently discussed that the subject has lost something of its original freshness, yet the difficulties that surround it, and the importance that attaches to it, were never more clearly appreciated -than now. The general featuresof the problem are easily understood. There are certainends which legal punishment seems to effect, or to aid in effecting, and these may be regarded as principles which, so far,regulate its use. The end may be conceived as deterrent, in the sense in which we shall use that term,-to deter others from committingthe crimeforwhich the criminalis seen by society to suffer. Or it may be reformatory, to improve the morals of the sufferer. Or it may be preventive, in the sense of placing the criminal in such a positionas to renderit impossible forhim to repeat his offence,-perhaps for a long time,perhaps forever. Or it may be vindictive, to execute vengeance against him. Or it may be to satisfy some claim of abstractjustice which society conceives itselfto possess, and, of course, is not admittedto be the outcome of vindictiveanimosity. These and other ends suggest themselves, some of them perhaps merelyto be rejectedas inadequate to affordany explanationof the problem, but mostof themas undoubtedly real factors in social life. And, accordingly,the popular view seems to be that they all represent some aspect of the truth; so that,to finda connection betweenthem,to pass fromthis or thattheoryof punishmentto a theorywhichwill hold good generally,is the second phase of the problem,whichis infinitely more difficult thanthe first. Now, it may be maintained that-thespiritof modern times has obviouslypassed beyond a merelyvindictiveprincipleof punishment; indeed,revenge is not punishmentat all. Hisof vengeance may be torically,the elaborationof instruments in this connection, interesting but theoretically it hardlyconcerns us. The repressionof the criminal'sfreedom, again, is
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in its bearing on the conceptionsof the mainlyof importance new school of criminology. To this subject we shall return, but it may be passed over untilwe have consideredthe more the orthodox points of view. If,then,we seek to determine question in what is generallycalled the practicalway, which means thatthe idea of abstractjustice is too vague and metaphysical to be of much value, we are leftwith the two main the criminaland of deterring othersfrom objects of reforming crime. And, when these two ideas are set againstone another in the political arena, victoryis almost certainto be with the of the criminalis rathera moral than latter. The reformation a legal or political aim. On the other hand, to deter from of crime is of the utmostpolitical importance, and, as a matter fact,we believe that our punishmentsdo, to a large extent, work out their aim in that way. At any rate,the deterrent end appeals very stronglyto common sense. And so the deterrentend itselfmust be made a matterof investigation. The effectof the punishmentof the criminal on society in can only be general,and on the criminal class in particular, tested by experience,and every method of deterringmust have its limits and modifications. One axiom generally accepted, however, even by conservativesin such matters,is, is not necessarily of punishment that while the deterrent effect it depends largely on the increased by an increase in severity, absolute accuracy with which it is administered. That he should be sent to prisonwhen he is caught in the act is a fact which the burglar accepts as part of the law of nature. It excites no animosityin his mind. But that he should be always caught is a conditionunder which his business cannot possibly be carriedon. But, admittingthe force of deterrencyfromthe practical point of view, it is often argued that this gives no answer, at least,to the questionwhythe State should punish explicitly the demand forjustice. at all. It does not explicitlysatisfy Can we unite the idea of social justice with that which we have been considering? Can we dominate the whole with or of penalty, which shall give it a an idea of retribution, logical basis? A well-knownanswer is, that in punishment
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the criminal's own act is seen returningon himself. The punishmentof the criminalis just, because it expresses his own will as a rational being; for in his act is involved a universalelementwhich by the act is set up as law. In punishment, which is, as it were,the injuryof an injury,he receives his right. On the other hand,the replywhich is made to such a line of argumentis equally well known. We hear thatretributive punishment is a merephrase; a logical subtlety which,if it can do no harm,can at the same timedo no good. It moves in a circle beyond the actual, and can never reach a concretepunishment at all. It seems very desirable,however, to bring the edges of the two theories together; to satisfy justice and yet not lose hold of the generalizationsof expeit is difficult to believe that retribrience. For, undoubtedly, utive justice is simply a combination of reformation and thrownin. We may deterrency with a dash of vindictiveness advance some way towards our object by consideringa parbut as part of a ticular penalty,not as an isolated occurrence, permanent system which exists in the State. The existence of this permanent systemrequires,perhaps,to be emphasized. The inter-relation of rights soon becomes obvious when we and the systematic considerparticularrightsreflectively, basis would be moreoftenthrustinto prominenceby of punishment juridical writersthan it is were it not for the fact that our present punishments are not nearlyso systematicas we feel they ought to be. Hence, although we oftenhear criticism directed against the want of system in our punishments, the factwhich that want reveals,the systematicnatureof punishment,tends to be forgotten. Of course it may be readilyadmitted that a kind of systematic treatmentis conceivable which is by no means desirable. To make punishmenttoo all its details by inflexiblerule, to destroy rigid,to determine of the particularcircumstances that consideration of the case which at presentin some degree animates it, would be a loss and not a gain. Nevertheless,a permanentsystem must be assumed; and if we conceive of the criminalas deliberately placing himself in conditions which, by the movement of society,-the same society which guarantees him liberty,-
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necessarilyresult in his punishment, then we can conceive of his act as returning upon himself. The conceptionof justice implied in such a phrase as the "justice of punishment" may be treated in many ways. will suggest itself. The conGreen's viewofjust punishment ceptionof the just, according to him, means that complex of social conditions which for each individual is necessary to enable him to realize his capacity for contributingto the social good. And the futuremaintenanceof rightmust require that the criminalshould be dealt with as he is in the punishment. But the precise form of wordsis, in our opinion, quite unimportant. However we may phrase it,when we are called upon to cross the line fromjustice to threats, we can only do so by following the tendencywhich leads us to break up legal lifeinto a complex of rights-to break up our social environmentinto a complex of social conditions-and to regulate our punishmentsin relationto those rights,mainly effect. If this involves the abandonment by their deterrent of any synthesiswith the true idea of justice, then deterrent howpunishmentmust be treatedon that basis. The threat, ever,always appears to be something more than a threat; it directedprimarily is a social threat, against all; it involves an or inference, that the soul of society appeal to the conviction, is just, thatthe criminalis social. The fact is that any conception of justice which we may form forworking purposes has a necessaryrelationto lifeas we are living it, and to societyas we findit, that forcesus to fillup our ideal with a certain amount of detail which it may to justifyfroma merelyabstract point of view. be difficult Conditionsare assumed which,althoughrelatively permanent, need not always wear the same aspect; and this tends to make us emphasize the contrastbetween abstractjustice and of our time; concretejustice as embodied in the institutions betweenthe abstractrightto punish and such an explanation of justice as has been suggested. But the right to punish is, afterall, an abstraction. If, for the time being, we look upon the social organism as complete and whole, then that system of punishmentwhich the maintenance of its rights
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demands is just. And if,on the other hand, we deny this a false completeness to the conclusion, because it attributes social organism,thenwe must fallback upon the idea of such justice. But justice being merelyan expression of intrinsic to contrastthe rightto punish, in that case it is not legitimate as if it were something beyond the sphere of social life,with of social justice. They both sufferfrom our interpretation the same defect. and the reformThe general relationbetweenthe deterrent to be more easily atoryaims seems, in the popular estimation, determined. If it is not the business of the State to seek it is also unactive methods of promotingprivate morality, the moralreformaactivelyto effect necessaryforit to attempt tion of the criminal. But it ought,at least, not to hinder his diffiwhich renders reformation reformation. A punishment the but generallyconsidered not desirable; cult is, therefore, end is the subordinateone. Whetherthis argureformatory ment affordsa valid objection to capital punishment is a matterof dispute. If we substituterepentance for reformation,it apparentlydoes not; and it seems reasonable that the end should only be allowed to enter into our reformatory with the larger positively calculationswhen it does notconflict ends. Two principles of practical interestshould be noted, as theyforma basis of many of the maxims which are believed in by upholders of deterrency. The firstis, that although punishments should terrorize,they should not brutalize. the punishments Thus, it may be maintainedthat,relatively, as practised among us do not of death and imprisonment by mutilaand that punishment have a brutalizingtendency, border line we place may the tion or torture would. On flogging. Again, it is well known that in civilized commuof crime linger,or perhaps break out, in nitiescertainforms is comparacertainlocalitieswhen the rest of the community tivelyfreefromthem. These are generallyof a brutal class, such as assaults on women and children. The true causes of these phenomenahave perhaps been overlooked,but thereis undoubtedly a tendency to deal sharplywith such crimes,
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of coarser methods of and even to advocate the employment punishmentfor them than would be sanctioned elsewhere. The argumentis, though its validitymay be doubted,that a mild use of coarser methodsis more effective in such special in the long run,more merciful. In the cases, and therefore, second place, however, we mustavoid makingcrimeromantic. Any method of punishment which excites morbid sentimentalityis an evil. There appears to be a class of persons who are eager to see romance in crimesof every description; nor can we allow the factthat they are numerically weak in proportionto the whole population,to blind us to the consideration that they are frequentlyliving on the border line between criminality and non-criminality, and therefore specially capable of being influenced the one way or the other. Such ideas are commonplace. In the views to which the membersof the school of criminologistspopularlyknown as Italian have given expressionwe may findan interesting contrast. Here an attemptis made to correctthe whole theory of criminallaw by means of scientific results. It is difficult, indeed,to characterize the movement generally; for thevalue of it, like that of all similarmovements, lies largelyin principles which mustbe worked out through relative antagonismand amid much discussion. Different views are necessarilytaken of the value of existingcriminalsystems,and the adoption of new stand-pointsis constantly being advocated. For it may be admittedthatthe resultsof anthropologicaland sociological investigationmust be brought to bear on the practical problems of crime,and that punishment, though one instrument,is by no means the only instrument, for social defence, withoutmuch positiveprogressbeing made. The Honorable Oliver Wendell Holmes, in speaking of the movementat the School of dedicationof the new hall of the Boston University Law recently,referred to the well-knownformula,that we must consider the criminal rather than the crime,and profor the ceeded to point out that therewas weightyauthority beliefthatnot the nature of the crime,but the dangerousness must form the only legal criterion. This of the criminal, summary, perhaps,may lead us to ask ourselves how farevery
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to thenew form of compromise mustbe rejectedas antagonistic Lioy, of Naspirit,-an important question. Again, Professor ples, in his general account, emphasizes the stress now laid on the incorrigibility of the criminal; and the partial reaction which has set in against the older phases of the movement is well represented by the works of SignorAlimena, now being published at Turin. We must focus our attention, however,and we shall do so it to Professor which the English by directing Ferri'sposition, editionof his " CriminalSociology" has brought into prominence. According to him, the criminal types are five in number,-criminal madmen,born criminals, criminalsby contractedhabits,occasional criminals, and criminalsof passion; a scheme evolved, in a measure,fromthe twofold divisionof habitual and occasional criminalswith which we are familiar. be All the chiefclassifications of criminalsmay,he maintains, broughtinto line with his own, which gives a more general value to his results. There are three strata in society,again, fromhis pointof view. The first, the highest,is composed of persons who are organicallyuprightand commitno crimes; the second is the lowest and the nurseryof born criminals, for whom no punishments, so far as they are legally deterrent, are of value; and the thirdis formedby the class of persons between the two,who can be deterredand forwhom punishis marked mentis psychologicallyuseful. Thus the territory out forscientific workers. But,coming closerto legal categories,we may ask, What is his conception of the efficacyof as a meansof repression, punishment ? It is thatpunishment, possesses essentially a negative value, because it has not the and same influenceon all anthropologicaltypes of criminals, because its use is mainly to preclude the serious mischief which would resultfrom would lead to impunity. " Impunity a demoralization of the popularconscience in regardto crimes and offences, to an increase of the profoundlack of foresight in criminals, and to a removal of the present impedimentto freshcrimesduringthe termof incarceration" This (p. io9). attitudeis one whichmaybe adopted by all, and the definition of it constitutesone of the most interesting portionsof the
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book. True, we may dissent fromthe statementthat "the least measure of progresswith reforms which prevent crime is a hundredtimes more usefuland profitable than the publication of an entirepenal code" (p. I35) as savoringof exaggeration; but the point, afterall, is not of vital importance, because we desire both remedies, the one without prejudice to the other. Keeping to the legal side of the subject,however,we find that the most importantconception put forwardis that of indeterminate punishment(p. 207). In its most moderate aspect the scheme proposes that,although punishment should be made indeterminate, it should only be so relatively; that is to say, a maximumand minimumof punishment should be fixedin the sentence. The more thorough-going innovators, however,desire that punishment should be at first quite indeand should be rendereddefinite in successive steps terminate, by persons qualified to judge how the criminalprogresses. The firstproposal is made as a sort of compromisewiththe older system,and, in my view, mightwell be supported. It leaves the law withmuch of its presentpublicity, and dignity, that openness of method. On the otherhand, it is maintained such a compromiseis quite impracticable, and the conception of indeterminate segregation,as ProfessorFerri would have it, is that,when the conditionsof the criminaland of his act the judge should show thatreparation by itselfis notsufficient, detentionin the lunatic only have to pronounce an indefinite the penal colony, or such asylum,the prison forincorrigibles, commissionswould see to and an institution;thenpermanent determinethe successive steps by which the offender was detained; and thus, it is argued, the oblivion which follows the convict on conviction under the old system would be obviated. satisfactorily Again, following this principle of indefinitesegregation, which may take two thereis the principleof indemnification, forms,-of a finepayable to the State or of reparationto the the State is to indeminjuredpersons. As regardsthe latter, and itself fromthe criminal. nifythe injured person recoup Thus, if societyis applying the principlethat the individual
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ought always to be held responsibleforhis crimes,it is also applying the counter-doctrine that he ought always to be indemnified for the crimesof which he is a victim. So, at least, runs the argument. Here we find,in a measure,the healing up of the old divisionbetween public crimeand private injury, and an apparent returnto the ideas of the past. A measurewhichwould involvethe criminalindemnifying his victim,or something similar,has oftenbeen advocated from the more strictly juridical point of view,and its practicalend recommendsit to a class of studentsby whom indefinite punishment, or at any rate the thoroughapplicationof the idea, would,on account of its vagueness,want of power to grip the public mind,and liability to corruptinfluences, be condemned. The question of how to make the criminalmore profitable to society than he is is a veryimportant one. It is succinctly treatedin an articlein this JOURNAL forOctober, i89i, by Dr. T6nnies, of Kiel, in which a moderateview of criminological reform is persuasively presented. Lastly, the means of defence must,according to Professor Ferri,be worked out in relationto thevarious criminaltypes; and here,in his view, a distinction mustbe made betweenthe proposals beforeus and the so-called individualization of punishmentwhich prison experts have advocated in America, as the latteridea is impracticable. It would be useless even for the members of the classic school to deny that in the details of punishment-on the question of form-many instructiveideas are being put forare being made in America and ward,and that experiments elsewherewhichare oftheutmostimportance. The difficulties which attendprison administration seem to be great. In providing suggestionsand factswhich may lead to a better penal organizationin detail probablythe most usefulwork of the new movementwill be found. Where the defects of that organization lie and how they are to be remediedare questions which can only be solved by much patient work,and which keeps the factswell in line is a step every investigation in the right direction. But in estimatingthe value of the progresswhich has been made and is embodied in existing
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of the difficulty and in preparingfor the future, institutions, the subject,especiallyas regardstypes,must not be forgotten. " Of all the problemswhich the human race has had to conin his " Roman Law," says Dr. Hunter significantly, front," perhaps,is to know what conduct is really in"the greatest, jurious to mankind and what is the best way to secure good is it to know the degree in conduct. Scarcely less important which conduct is injurious. On all these points early societo learn." ties had everything On the other hand, whetherthe best argumentswhich can as trial be broughtforwardforor against such an institution by jury (which ProfessorFerri attacks) are not so general in theirnatureas to fall beyond the scope of a special criminal science has to be considered. As regards lawyersas a class, attractionforthis formof theyassuredlyhave no sentimental trial. The old quarrel between the poets and the philosophers is as nothing compared to the old quarrel between the amateursand the professionals. But if a Churchman could see England freethan England maintainthat he would rather must be allowed the opinion that they sober, the lawyers would ratherthat the people should feel that theywere free of than thattheyshould have the highestpossible refinement judicial justice. The most sensational question which occurs in this conto which we nection is, perhaps, that of capital punishment, have already referred. Even ProfessorFerri admits that it has been exhausted from the intellectual stand-pointand of has passed into the region of prejudice. As an instrument eliminationcapital punishmentis of no practical value, and popular opinion will never allow it to become so. It is probably as a means of terror that it must stand or fall. No doubt thereis an air of poetical justice about it,and no doubt it seems to embody,for some minds,the power of the law; but a furtherquestion is, whether it does adequately deter directly. The latterpoint is those whom it is meant to affect is if doubtful. Its usefulness, it useful,seems ratherto lie in as it were,the culminationof the its indirect effect;it forms, penal system; it proclaimsthat not even lifeitselfwill be re-
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outrage society. And garded as sacred in those who utterly in any countrywhere its employment, though authorized,is systematically evaded it is useless. The criminallaw-to gather up our criticism-must,before all things,be a workable system,and to renderit workable regulationsand conceptionshave to be acted on whichare not so exact as, ideally,we might desire. Analytical distinctions have to be introduced,-notably the distinction between the ordinaryand the abnormal man. This is the real rock of offence to the upholdersof the existenceof graduatedcriminal types. The distinctions which the law upholds may be seen to have been treatedtoo absolutely when we have advanced a stage in general progress. The tendencyof the reformer is always to urge that new and apparentlymore refined distinctions be substitutedfor those formerly employed; and he is rightin doing so provided the social organizationcan really apply the new methods. Even then,however,it is unnecessary to be uncompromisingly severe on the past. Now, the in accordance withcrimprincipleof indeterminate segregation inal types is one which it is verydifficult to judge as such, but it is not unreasonable that it should excite our fears. The scientificspirit is bold and uncompromising. The modern world will never toleratea courtwhichpretends to sit in judgment on men's mere thoughts as opposed to their actions. But is it possible that we could tolerate a court which,even in a qualifiedway, sat in judgment,not upon men's thoughts, and tendencies? That is the but upon theirmere dispositions seems it danger,although probable that the fixingof a maximum and minimumof punishmentin the sentence would practicallydo much towards obviatingit. And, whetherthis be so or not, it can hardlybe disputed that the idea of indeterminatepunishment,in some form or other, is becoming more and more actualized in society. The new line of thought,then,may perhaps be said to cut the deterrent theoryobliquely. It is, but only in a verymodifiedway, reformatory.It is more trulypreventive. It cannot be assumed that it would necessarilybe favorableto the criminal fromthe criminal'sown point of view. Of course,
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be forthe best. But even forthe criminal, all may ultimately the claims of societyare resolutelyset against his claims,and, carried out, a lapse in the in so far as this idea is consistently is precluded. The idea of directionof mere sentimentality " doses" of punishment, ridiculed, whichhas been so frequently meantat least this: that there was a penaltywhichthe criminal had to pay, and when he had paid it the debt was cantheory any " dose" given him was celled. On the deterrent for the good of all. This whole conception,be it right or wrong, is being strenuously attacked. Prevention,in its scientific sense, is swallowing it up. Hence the great stress laid upon those social reformswhich are technically called penal substitutes; the assertion that such substituteshave of neverbeen properlystudied untilnow, and the glorification them at the expense of legal codes. Preventionis said to be primary,repression secondary, and in a wide and general sense this may be admitted. But if it be recognized,as it is, in its rightplace,nothingless appears to be, that repression when of the comparison, the reiteration than a social necessity, tends to confuse the issue. repressionis under consideration, A social necessitywhich involves the liberties of men can neverbe called unimportant. W. A. WALL.
GLASGOW.

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Deterrent Punishment Author(s): W. A. Wall and W. A. Watt Source: International Journal of Ethics, Vol. 8, No. 2 (Jan., 1898), pp.

International journal of Ethics.

International Yournal of Ethics.

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