Criminal punishment

“ Against this general uncertainty of punishment, which no severity in the law can affect or make up for, the only certainty of punishment dependent on the law is in the event of conviction. But even this certainty is of a very qualified nature, for it depends on sentiments of due proportion between a crime and its penalty, which in no two men are the same. Every increase of severity in punishment diminishes its certainty, since it holds out to a criminal fresh hopes of impunity from the clemency of his judges, prosecutors, or jury. ”

“ In fixing a scale of punishments, the first principle to be attended to is that they should be so graduated as to attach to each particular crime its due and relative punishment according to its enormity, and with regard to the nature of the punishments they should be as mild and humane as the general security of person and property admits of. Severity of punishment defeats its own end, and the laws should in all cases be so mild that no one may be deterred from prosecuting a criminal by considerations of humanity. ”

“ It is, therefore, to some extent true, that punishment serves as an example, namely, to convince all of the infallible execution of the law. But the original intention of punishment was solely to deter the criminal from the crime. Now, since this end could not be attained, he having committed a crime, his punishment has another aim in view, namely, to deter other citizens from committing the same offense. The execution of the penal law is, therefore, a public act. Each citizen who has heard of an offense, must also learn that it has been punished. ”

“ Yet the reader should not infer that definitions and grades of crime capable of corresponding punishments are not proper, desirable, and necessary. Of course they are. The practical use of such statutes is to fix a maximum sentence of punishment. As a rule the minimum is anything the judge sees fit. Hence you may deduce a general principle to the effect that the charge against the prisoner, even assuming his guilt, indicates nothing definite as to his moral turpitude, danger to the community, or general undesirability. ”

“ It may be objected, that the same punishment inflicted on a nobleman and a plebeian, becomes really different from the difference of their education, and from the infamy it reflects on an illustrious family; but I answer, that punishments are to be estimated, not by the sensibility of the criminal, but by the injury done to society; which injury is augmented by the high rank of the offender. ”

“ And punishment, which is one of the social forms of pain, is always a direct motive in human conduct, as it is also an indirect guide, by virtue of its being a sanction of justice, unconsciously strengthening respect for the law. But still this psychological truth, whilst it demonstrates the natural character of punishment, and the consequent absurdity of abolishing it as absolutely void of efficacy, does not destroy our conclusion as to the slight efficacy of punishment as a counteraction of crime. ”

“ The most severe punishment must be no other than that which is the mildest possible, according to particular circumstances of time and place. From this all other punishments must be determined, in proportion to the disregard manifested for the rights of others in the crimes committed. ”

“ Happy the nation in which their exercise should be baneful! Clemency, therefore, that virtue, which has sometimes made up in a sovereign for failings in all the other duties of the throne, ought to be excluded in a perfect system of legislation, where punishments are mild and the method of trial regular and expeditious. This truth will appear a hard one to anybody living in the present chaotic state of the criminal law, where the necessity of pardon and favours accords with the absurdity of the laws and with the severity of sentences of punishment. ”

“ On the other hand we have the positive system of punishment, based on the principle of an unfixed segregation of the criminal, which is a logical consequence of the theory that punishment ought not to be the visitation of a crime by a retribution, but rather a defence of society adapted to the danger personified by the criminal. ”

“ If, in our horror of inflicting death, we endeavour to devise some punishment for the living criminal which shall act on the human mind with a deterrent force at all comparable to that of death, we are driven to inflictions less severe indeed in appearance, and therefore less efficacious, but far more cruel in reality. Few, I think, would venture to propose, as a punishment for aggravated murder, less than imprisonment with hard labor for life ”

“ No man can be judged a criminal until he be found guilty; nor can society take from him the public protection, until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen, so long as there remains any doubt of his guilt? ”

“ This account of the considerations which have regulated the punishment of crimes explains the severity with which 'criminal negligence' is in some cases punished, and that severity is justified by the account given of the true principle of criminal law, the principle, viz., that crime should be punished according to the importance of the right which it violates, and to the degree of terror which in a well-organised society needs to be associated with the crime in order to the protection of the right. ”

“ Analogy between crime and punishment is another idea which, except in the case of death for death, has been relegated from the practice of most criminal laws. Yet the principle has in its favour the authority of Moses, the authority of the whole world and of all time, that punishment should, if possible, resemble the crime it punishes in kind; so that a man who blinds another should be blinded himself, he who disfigures another be disfigured himself. ”

“ This is the first object of punishment—to make satisfaction to outraged law.” This conception, like the preceding, marks a stage in the transformation of revenge into criminal justice. Until this transformation is complete, the remedy of punishment is more or less assimilated to that of redress. Revenge is the right of the injured person. The penalty of wrongdoing is a debt which the offender owes to his victim, and when the punishment has 84been endured the debt is paid, the liability is extinguished, innocence is substituted for guilt, and the vinculum juris forged by crime is dissolved. ”

“ From these considerations on the cases to which punishment is to be applied, I shall now proceed to consider the measure in which it is to be inflicted. I believe it to be impossible in general reasoning, which has no absolute reference to any particular local circumstances, to prescribe its due measure even within ample limits, or to fix on the point beyond which it should never go. Punishments must be evils which deter and intimidate the criminals. ”

“ The statement, however, that the punishment of the criminal by the state is retributive, though true in a sense that will be explained directly, yet so readily lends itself to a misunderstanding, that it is perhaps best avoided. It is not true in the sense that in legal punishment as it should be there survives any element of private vengeance, of the desire on the part of the individual who has received a hurt from another to inflict an equivalent hurt in return. ”

“ The classic school has for a cardinal remedy against crime a preference for one kind of punishment, namely imprisonment, and gives fixed and prescribed doses of this remedy. It is the logical conclusion of retributive justice that it travels by way of an illusory purification from moral guilt to the legal responsibility of the criminal and thence on to a corresponding dose of punishment, which has been previously prescribed and fixed. ”

“ The object of criminal jurisprudence should be the repression of crime to the lowest possible amount, the treatment of the criminal being a means to that end, not an end itself; (2) with retribution for sin, man, in regard to his fellow-man, has nothing to do; (3) punishment used solely as a deterrent being often futile, at the best insufficient, and always uncertain in effect, two methods alone exist of preventing crime by penal means, namely, incapacitation or reformation. Under incapacitation come capital punishment and imprisonment. ”

“ The present forms of punishment and the manner in which they are inflicted are little if at all in accord with this latter point of view. At present the penalty is not much more than an evil inflicted upon the criminal to satisfy the vengeance of a great part of mankind, and at the same time to make it impossible for the criminal to do harm, either for a time or else forever, and finally to terrify him and other men into not committing crimes. ”

“ LET us now inquire, whether it be advantageous to society, to set a price on the head of a criminal, and so to make of every citizen an executioner. If the offender hath taken refuge in another state, the sovereign encourages his subjects to commit a crime, and to expose themselves to a just punishment ”

“ That the scruple to convict diminishes the certainty of punishment, and therefore raises hopes of impunity, is illustrated by the case of two American brothers who, desirous to perpetrate a murder, waited till their victim had left their State, in which capital punishment had been abolished, and had betaken himself to a State which still retained it, before they ventured to execute their criminal intention. ”

“ There is not, I should think, any human infliction which makes an impression on the imagination so entirely out of proportion to its real severity as the punishment of death. The punishment must be mild indeed which does not add more to the sum of human misery than is necessarily or directly added by the execution of a criminal. ”

“ The first is the primary and more important object: for though society has, doubtless, a strong interest in the reformation of the criminal, and his consequent indisposition to crime, yet the result is here confined to the individual offender, while the effect of punishment, as deterring from crime, extends not only to the party suffering the punishment, but to all who may be in the habit of committing crime, or who may be tempted to fall into it. ”

“ The punishment of a criminal is no longer an affair of personal heroism or the virtue of any one individual, but is throughout the entire process, in the investigation and discovery of the felonious act, in the pronouncement of judicial sentence and its execution, contributed to by different persons; nay, every important phase of such a process is in the same way subject to some kind of division of labour. ”

“ This may appear to contradict what I have said above, namely, that equal punishments may be decreed for unequal crimes, by considering the time allowed the criminal, or the prison as a punishment.
In order to explain this idea, I shall divide crimes into two classes. The first comprehends homicide, and all greater crimes; the second, crimes of an inferior degree. This distinction is founded in human nature. The preservation of life is a natural right; the preservation of property is a right of society. ”

“ He proposed a resolution declaratory that capital punishment ought to bear no relation to the rank of the culprit; that when a criminal is condemned to death, for any crime whatever, the mode of execution should be the same whether he were peer or peasant. ”

“ We have only to distinguish between punishment as a natural sanction and punishment as a social sanction in order to see how the really great power of natural punishment almost entirely disappears in social punishment, which in all our systems is but a sorry caricature. ”

“ Next comes the “délit,” which includes all offences punished by imprisonment over a week and under five years. Then, finally, we arrive at the “crime,” the highest form of offence in French criminal law. It includes all offences subject to a more severe sentence than the punishment assigned to a délit. All cases are held to be crimes where death, life-imprisonment with or without hard labour, deportation out of the kingdom, detention or seclusion in a fortress or other expressly assigned place, are the punishments mentioned by the law. ”

“ To add to a sentence for a very venial offence for which a nominal punishment ought to suffice an extra fine or term of imprisonment by way of example or warning to others would be unreasonable and unjust. Vengeance, or the infliction of unnecessary pain, especially for the sake of others, should never form part of a criminal sentence. ”

“ Hanging in time superseded all other forms of capital punishment for felony. It was substituted in 1790 for burning as a punishment of female traitors and in 1814 for beheading as a punishment for male traitors. The older and more primitive modes of carrying out the sentence were by hanging from the bough of a tree (“the father to the bough, the son to the plough”) or from a gallows. Formerly in the worst cases of murder it was customary after execution to hang the criminal’s body in chains near the scene of his crime. ”

“ The old theories of punishment have broken down, and it is now difficult to find any coherent theory behind the practice. When a crime is committed that shocks the public by its atrocity there are demands made for fierce retribution on the culprit, partly on the plea that he ought to be made to suffer, and partly for the purpose of deterring others from repeating the act. Incidentally those who are most insistent on the employment of the executioner show that they possess a fair share of the same spirit that educed the act which they condemn. ”