ON THE PUNISHMENT OF DEATH
The view which has been taken of the subject by Beccaria and other modern writers appears to be erroneous or defective in some of the most important circumstances relating to this question.
First objection. It is assumed as a general maxim, that, ‘it is not the intensity of punishment, but its duration, which makes the greatest impression on the human mind.’
This maxim will be found to be in direct opposition to all experience, and to every principle of human nature. It supposes that a number of impressions, feeble in themselves, and dissipated over a long interval of time, produce a stronger effect upon the mind, than a single object, however powerful and striking, presented to it at once: that is, that the passions are excited more by reason than imagination, by the real, than by the apparent quantity of good or evil. This principle is indeed, in general, denied by Mr. Bentham, but admitted by him, as far as relates to the influence of the fear of death on malefactors. If it be true with respect to them in particular (which there is reason to doubt,) it is not because the fear of a continued punishment influences them more than the fear of an intense one, but because death is to them not an intense punishment.
Again, it has been said, that ‘crimes are more effectually prevented by the certainty than by the severity of the punishment.’ Now I cannot think that this is either self-evident, or true universally and in the abstract. It is not true of human nature in general, and it is still less so as applied to the more lawless and abandoned classes of the community. It is evident from the very character of such persons, that if they are not to be acted upon by violent motives, by what appeals strongly to their imagination and their passions, they cannot be acted upon at all, they are out of the reach of all moral discipline. The dull, sober certainties of common life, and the real consequences of things when set in competition with any favourite inclination, or vicious indulgence, they altogether despise. It is only when the certainty of punishment is immediate, obvious, and connected with circumstances, which strike upon the imagination, that it operates effectually in the prevention of crimes. This principle is however true, as it has been sometimes applied to cases where the law has become a dead letter. When a moderate punishment is strictly and vigorously enforced, and a severe punishment is as generally and systematically evaded, the mind will, undoubtedly, be more affected by what it considers as a serious reality, than by what it will regard as an idle threat. So far the principle is true in its application, but no farther.
First maxim. It is not the real, but the apparent severity of the punishment which most effectually deters from the commission of crimes. For this reason, an intense punishment will have more effect than a continued one, because more easily apprehended. Neither is the certainty of punishment to be depended on, except when it is apparent. It is not the calculation of consequences, but their involuntary and irresistible impression on the mind that produces action. The laws to prevent crimes must appeal to the passions of men, and not to their reason: for crimes proceed from passion, and not from reason. If men were governed by reason, laws would be unnecessary.
Second objection. It seems to be taken for granted by speculative writers, (at least the contrary is not stated with sufficient distinctness) that punishment operates by terror alone, or by the fear which each individual has of the consequences to himself.
It is indeed a prevailing maxim of philosophy, that self-interest is the sole spring of action, and it has thus probably been inferred, that the fear of punishment could only operate on this principle of cool, calculating self-interest. But it is quite certain that sympathy with others, whatever may be its origin, is, practically speaking, an independent and powerful principle of action. The opinions and feelings of others do actually and constantly influence our conduct, in opposition to our strongest interests and inclinations. That punishment, therefore, will not be the most dreaded, nor, consequently, the most effectual, which is the greatest to the individual, unless it is at the same time thought so by others, and expresses the greatest general disapprobation of the crime. Thus, though a malefactor, consulting only his own inclinations or feelings, might prefer death to perpetual imprisonment and hard labour, yet he may regard it as the worst of punishments, in as far as it demonstrates the greatest abhorrence and indignation in the community against the crime.
Second maxim. Punishment operates by sympathy, as well as by terror. Penal laws have a tendency to repress crimes not more by exciting a dread of the consequences, than by marking the strong sense entertained by others of their enormity, and the detestation in which they are held by mankind in general. The most severe laws will always be the most effectual, as long as they are expressions of the public sentiment; but they will become ineffectual, in proportion as the sentiment is wanting. The disproportion between the crime and the punishment in the public opinion, will then counteract the dread of the severity of the law. Setting this feeling aside, the most severe laws will be the most effectual. The argument drawn from the inefficacy of severe punishments, when inflicted on trifling or common offences, does not prove that they must be ineffectual, when applied to great crimes, which rouse the public indignation and justify the severity.
Third objection. It is farther implied in the foregoing statements, that the only object of punishment is to prevent actual crimes, or that those laws are the best, which most effectually answer this end by deterring criminals.
This I also conceive to be a narrow and imperfect view of the question, which respects not merely the motives and conduct of criminals, but the motives and sentiments of the community at large. It is of the first importance that the ill disposed should be coerced, but it is also of importance that they should be coerced in such a manner, and by such means, as it is most consistent with the public morals to employ. In defending the state, we are not to forget that the state ought to be worth defending. As the sentiments of society have a powerful effect in enforcing the laws, so the laws re-act powerfully on the sentiments of society. This is evident with respect to barbarous punishments. The evil of a law operating in this way on manners, by holding out an example of cruelty and injustice, however effectual it might be found, is not denied. In like manner, a law falling short of or disappointing the just indignation and moral sense of the community, is, for the same reason, faulty as one that exceeds and outrages it. One end of punishment, therefore, is to satisfy this natural sense of justice in the public mind, and to strengthen the opinion of the community by its act. As the arm of justice ought not to be mocked and baffled by the impunity of offences, so neither ought it to be unnerved by thwarting and prevaricating with the common sentiments of mankind, or by substituting remote, indirect, and artificial punishments for obvious and direct ones. I call a punishment natural when it is dictated by the passion excited against the crime. A punishment will therefore be the most beneficial when it arises out of, and co-operates with that strong sense of right or wrong, that firm and healthy tone of public sentiment, which is the best preservative against crime.
Illustration. Thus even if it were shewn that perpetual imprisonment and hard labour would be equally effectual in deterring malefactors from the commission of murder, it would by no means necessarily follow, that this mode of punishment would be preferable to capital punishment, unless it could at the same time be made to appear that it would equally enforce the principle of the connexion between the crime and the punishment, or the rule of natural justice, by which he who shews himself indifferent to the life of another, forfeits his own. There is a natural and home-felt connexion between the hardened obduracy which has shewn itself insensible to the cries of another for mercy and the immediate burst of indignation which dooms the criminal to feel that he has no claims on the pity of others: but there is no connexion, because there is no ascertainable proportion, in the mind either of the criminal or the public, between the original crime, and the additional half-hour in the day after the lapse of twenty years, which the malefactor is condemned to labour, or the lash of the whip which urges him to complete his heavy task. That reasoning which stops the torrent of public indignation, and diverts it from its object only to dole it out to its miserable victim, drop by drop, and day by day, through a long protracted series of time with systematic, deliberate, unrelenting severity, is in fact neither wise nor humane. Punishments of this kind may be so contrived as to intimidate the worst part of mankind, but they will also be the aversion of the best, and will confound and warp the plain distinctions between right and wrong.
Third maxim. The end of punishment is not only to prevent actual crimes, but to form a standard of public opinion, and to confirm and sanction the moral sentiments of the community. The mode and degree of the punishment ought, therefore, to be determined with a view to this object, as well as with a view to the regulation of the police.
Fourth objection. The theory here alluded to, is farther objectionable in this, that it makes familiarity with the punishment essential to its efficacy, and therefore recommends those punishments, the example of which is the most lasting, and, as it were, constantly before the eyes of the public, as the most salutary. On the contrary, those punishments are the best which require the least previous familiarity with objects of guilt and misery to make them formidable, which come least into contact with the mind, which tell at a distance, the bare mention of which startles the ear, which operate by an imaginary instead of an habitual dread, and which produce their effect once for all, without destroying the erectness and elasticity of social feeling by the constant spectacle of the degradation of the species. No one would wish to have a gibbet placed before his door, to deter his neighbours from robbing him. Punishments which require repeated ocular inspection of the evils which they occasion, cannot answer their end in deterring individuals, without having first operated as a penance on society. They are a public benefit only so far as they are a public nuisance. Laws framed entirely on this principle, would convert the world into a large prison, and divide mankind into two classes, felons and their keepers!
Maxim fourth. Those punishments are the best which produce the strongest apprehension, with the least actual suffering or contemplation of evil. Such is in general the effect of those punishments which appeal to the imagination, rather than to our physical experience; which are immediately connected with a principle of honour, with the passions in general, with natural antipathies, the fear of pain, the fear of death, etc. These punishments are, in Mr. Bentham’s phrase, the most economical; they do their work with the least expense of individual suffering, or abuse of public sympathy. Private punishments are, so far, preferable to public ones.
General inference. There ought to be a gradation of punishments proportioned to the offence, and adapted to the state of society.
In order to strike the imagination and excite terror, severe punishments ought not to be common.[[66]]
To be effectual, from the sympathy of mankind in the justice of the sentence, the highest punishments ought not to be assigned to the lowest or to very different degrees of guilt. The absence of the sanction of public opinion not only deadens the execution of the law, but by giving confidence to the offender, produces that sort of resistance to it, which is always made to oppression. The ignominy attached to the sentence of the law, is thus converted into pity. If the law is enacted but not enforced, this must either be to such a degree as to take away the terror of the law, or if the terror still remains, it will be a terror of injustice, which will necessarily impair the sense of right and wrong in the community. But if the law is regularly carried into execution, the effect will be still worse. In general, all laws are bad which are not seconded by the manners of the people, and laws are not in conformity with the manners of the people when they are not executed. This is the case at present with a great proportion of the English laws. Is it to be wondered at that they should be so? Manners have changed, and will always change insensibly, and irresistibly, from the force of circumstances. The laws, as things of positive institution, remain the same. So that without a constant, gradual assimilation of the laws to the manners, the manners will, in time, necessarily become at variance with the laws, and will render them odious, ineffectual, and mischievous—a clog, instead of a furtherance to the wheels of justice.