XX

PUNISHMENT

a.s.suming 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 pa.s.sed. 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 b.u.t.ter and sugar; one can measure water and mola.s.ses 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 pa.s.s 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 pa.s.s 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...o...b..ts without outside control. The governing power of a perfect order in its last a.n.a.lysis 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 ent.i.tled: "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 inst.i.tutions 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.

a.s.suming 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 G.o.ds 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 G.o.ds, and naturally no other conduct should demand so severe a penalty as calling down the wrath of the G.o.ds. 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 amus.e.m.e.nts 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 mult.i.tude 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 a.s.sumed 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 mult.i.tude 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 pa.s.sed 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 "G.o.d gave life and only G.o.d 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."

But emotion too has its biological origin and is a subject of scientific definition. A really "sentimental" person, in the sense used, is one who has sympathy. This, in turn, comes from imagination which is probably the result of a sensitive nervous system, one that quickly and easily responds to stimuli. Those who have weak emotions do not respond so readily to impressions. Their a.s.sumption of superior wisdom has its basis only in a nervous system which is sluggish and phlegmatic to stimuli. Such impressions as each system makes are registered on the brain and become the material for recollection and comparison, which go to form opinion. The correctness of the mental processes depends upon the correctness of the senses that receive the impression, the nerves that transmit the correctness of the registration, and the character of the brain. It does not follow that the stoic has a better brain than the despised "sentimentalist." Either one of them may have a good one, and either one of them a poor one. Still, charity and kindliness probably come from the sensitive system which imagines itself in the place of the object that it pities. All pity is really pain engendered by the feelings that translate one into the place of another. Both hate and love are biologically necessary to life and its processes.

Many people urge that the penalty of imprisonment for life would be all right if the culprit could be kept in prison during life, but in the course of time he is pardoned. This to me is an excellent reason why his life should be saved. It is proof that the feeling of hatred that inspired judge and jury has spent itself and that they can look at the murderer as a man. Which decision is the more righteous, the one where hatred and fear affect the judgment and sentence, or the one where these emotions have spent their force?