Legal impunity

“ He knows that he is playing for his life, and plays the game out with his wits about him. Impress, therefore, upon this class of offenders that the crime with which they stand charged is so heinous in the eyes of their fellow-creatures that every effort will be made to bring them to punishment, if their guilt is established, and you at once deprive them of one strong incentive to crime in this particular form—namely, the strong probability of impunity. ”

“ It is doubtless of importance, that no crime should remain unpunished; but it is useless to make a public example of the author of a crime hid in darkness. A crime already committed, and for which there can be no remedy, can only be punished by a political society, with an intention that no hopes of impunity should induce others to commit the same. ”

“ But impunity would lead to a demoralisation of the popular conscience in regard to crimes and offences, to an increase of the profound lack of foresight in criminals, and to the removal of the present impediment to fresh crimes during the term of incarceration. ”

“ I think that a general law promising impunity to an accomplice who exposes a crime would be preferable to a special declaration in a particular case, because in this way the mutual fear which each accomplice would have of his own risk would tend to prevent their association; the tribunal would not make criminals audacious by showing that their aid was called for in a particular case. Such a law, however, should accompany impunity with the banishment of the informer.... ”

“ The same fact, if it have been constantly punished in other men, is a greater crime, than if there have been many precedent examples of impunity. For those examples are so many hopes of impunity, given by the sovereign himself: and because he which furnishes a man with such a hope and presumption of mercy, as encourageth him to offend, hath his part in the offence; he cannot reasonably charge the offender with the whole. ”

“ Since, therefore, there is more to fear from a punished than from an unpunished criminal, there is the less reason to regret the general impunity of crime. There is indeed a large class of crimes for the prevention of which more would be done, by leaving them to their natural consequences, and to the strong power against them which the general interests and moral feelings of mankind will always enforce, than by actual punishment. ”

“ Whichsoever of these positions be true, the defence set up on behalf of the respondent is false. What have you seen? A man condemned to death, unheard, by a prejudiced jury and an unrighteous judge, thirsting for his blood; the Executive demanding to hear that defence, to which the Court would not listen, and extending the arm of its protection to snatch the victim from the oppressor’s [276] grasp. And will you now turn this man loose upon society, armed with the terrors of the law and secure in impunity, to perpetrate similar offences? ”

“ And any law, which does not, in such trial, obtain the unanimous sanction of twelve men, taken at random from the people, and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it. ”

“ The nation, like the individual, [Pg 364] cannot commit a crime with impunity. If we are guilty of lawlessness and brutal violence, whether our guilt consists in active participation therein or in mere connivance and encouragement, we shall assuredly suffer later on because of what we have done. ”

“ In a well-governed State, there are few punishments, not because there are many pardons, but because criminals are rare; it is when a State is in decay that the multitude of crimes is a guarantee of impunity. ”

“ Bitter experience has shown that under the Law of Nationalities, the very acts which the law was designed to prevent or regulate, have been perpetrated with impunity, either by omission or commission. ”

“ The consequence is, that a great variety of actions, to which a high degree of moral guilt is attached, and which are punished as crimes at the common law, and by every State in the Union, may be committed with impunity on the high seas, and in any place where Congress has exclusive jurisdiction. ”

“ It would be madness to concert new schemes, liable to new abuses, without first doing justice to the abusers of the old; impunity for past crimes is a warrant to commit more, especially when they are gainful. ”

“ Whence it appears, following their example, that the highest crime recognized by law may be perpetrated with impunity by the highest officers of the law, wdiile the most righteous acts of citizens, if done outside of the prescribed forms of law, cannot be too severely denounced and punished. ”

“ That much remains to be done in this respect no person will deny; all ranks must bear testimony to the dangers which both life and property are at present subjected to by the number of criminal people, who, from various causes (which it is the object of the Writer of these pages to explain) , are suffered with impunity to repeat acts of licentiousness and mischief, and to commit depredations upon individuals and the Public. ”

“ But these proofs should be determined by the laws, not by the judges, whose decisions, when they are not particular applications of a general maxim in a public code, are always adverse to political liberty. The more that punishments are mitigated, that misery and hunger are banished from prisons, that pity and mercy are admitted within their iron doors, and are set above the inexorable and hardened ministers of justice, the slighter will be the evidences of guilt requisite for the legal detention of the suspected. ”

“ Resolved, That men, who directly or indirectly instigate or encourage those who are or may be the subjects of legal process, to offer violent resistance to the officers of the law, deserve the reprehension of an indignant community, and the severest punishment which its laws have provided for their offence; and that we have entire confidence that any combination or attempt to fix such a blot upon the fair fame of our State or city, will be promptly rebuked and punished, by an independent and impartial judiciary, and by firm and enlightened juries. ”

“ And the only just reason that can be assigned why those crimes which are punished with death in a subject, have been often committed with impunity by a chief magistrate, was, because the station which he was in gave him such strength, and such a party, that to have punished him, the publick quiet must have been risked or shaken: And as to the inferior great traitors, the gain of their crimes and partners of their guilt protected them. ”

“ Can one who judicially establishes his innocence of any offense be punished for crime by the action of a ministerial officer? Can he be punished because he has failed to show to the satisfaction of that officer that he is innocent of an offense? The Constitution declares that 'the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of invasion or rebellion, the public safety may require it.' There is no rebellion or invasion. ”

“ 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. ”

“ If the appellees are right in their contention, a temporary act such as this one would lose, as a practical matter, some of its sanctions. Violations could occur with impunity months before its expiry, for in practice there frequently is an unavoidably substantial lag between violation and prosecution. ”

“ But does our theory, after all has been said about the wrongness of punishment that is not just, afford any standard for the apportionment of just punishment, any criterion of the amount of interference with a criminal's personal rights that is appropriate to his crime, except such as is afforded by a prevalent impression among men as to what is necessary for their security? Can we construe it so as to afford such a criterion, without at the same time condemning a great deal of punishment which yet society could be never brought to dispense with? ”

“ The frequent impunity of the most serious crimes arises from the growing enmity of opinion to the punishment of death. There can be little doubt that in a short time capital punishments will be abolished throughout the northern States: and if this is to be done, the sooner it is done the better: for the present impunity is a tremendous evil. ”

“ Every word of the court had been an accusation, a sneer, an acceptance of the defendant's guilt as a matter of course, an abuse far more subversive of our theory of government than the mere acquittal of a single criminal, for it struck at the very foundations of that liberty which the fathers had sought the shores of the unknown continent to gain. ”

“ Now, we come to guaranties of the right of the people to protection against any trial, except the same be conducted in accordance with the guaranties of the Constitution. These guaranties are for all persons, young or old, rich or poor. You know sometimes the innocent are charged with grave crimes. A crime is committed in the darkness of the night. The criminal has fled. The first duty of the officers of the government—the servants of the people—is to find the criminal so that he may be punished for his wrongdoing. ”

“ You have been guilty of one of the most reprehensible offences that any citizen of a Commonwealth founded upon order and justice could commit, an act of such flagrant culpability that the Court, in the maintenance of its dignity and in the interest of the Commonwealth found it necessary to visit upon you punishment of great severity and incarcerate you in the gaol usually reserved for the most depraved malefactors. Intemperance is one of the most debasing of vices. It impairs the intellect and undermines the constitution. ”

“ The genius, the nature, and the spirit of our State governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime, or violate the rights of an antecedent lawful private contract, or the right of private property. ”

“ From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power. ”

“ The violation of right in one case is proceeded against by the method of indictment, in the other by an 'action.' The distinction that in one case punishment is the object of the process, in the other redress, is introduced in order to explain the difference of procedure; and to justify this distinction resort is had to the further distinction, that civil injury is considered to affect the individual merely, crime to affect the state. ”

“ The old, the feeble and infirm, therefore, in civil and criminal proceedings, were exposed to mortal challenge from the antagonist who was destitute of legal proofs, and thus condemned to renounce their fairest claims and possessions, to sustain the danger of an unequal conflict, or to trust the doubtful aid of a mercenary champion. ”

“ They are through out punitive and highly penal; they punish with death or with imprisonment almost as bad as death, the crime of treason; they create a new crime, that of rebellion, and punish it with imprisonment or fine, or with both, at the discretion of the court, and, to all these penalties superadd those of confiscation and of civil disability, heretofore unknown to our penal code. No one can doubt, that this is a penal statute designed to punish treason and rebellion. ”

“ 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. ”

“ But how can there be crimes, that is, public injuries, unless the publicity of this example, by a public trial, be at the same time [144] the interest of all men? I respect every government, and speak of none in particular. Circumstances are sometimes such that to remove an evil may seem utter ruin when it is inherent in a national system. But had I to dictate new laws in any forgotten corner of the universe, my hand would tremble and all posterity would rise before my eyes before I would authorise such a custom as that of secret accusations. ”

“ Confiscations place a price on the heads of the feeble, cause the innocent to suffer the punishment of the guilty, and make the commission of crimes a desperate necessity even for the innocent. What sadder sight can there be than that of a family dragged down to infamy and misery by the crimes of its head, unable to prevent them by the submission imposed on it by the laws, even supposing such prevention to have been within its power! ”

“ Here belong the secret courts of criminal justice in the middle ages and the feudal law, which bear weighty evidence to the impotence or the partiality of the criminal courts of the time and to the weakness of the state power; in the present, dueling, which is a palpable proof that the penalties which the state inflicts on attacks on one’s honor are not sufficient to satisfy the delicate feeling of honor of certain classes of society. ”