A Review of the Systems of Ethics Founded on the Theory of Evolution

by Cora May Williams

In all such reformatory work it may be remarked that hard labor and stringent discipline, as well as consistent kindness, are found absolutely necessary; and it is to be noted that the disinclination of criminals for labor and regularity of life is one of the greatest obstacles in the way of their reform.[283] Judge Green quotes from Mr. Hough on this point: "Those who are in control of penal institutions meet with no more pernicious influence than that exerted by certain well-meaning but mistaken philanthropists who are impelled by kindly hearts to slop over with sentiment. No criminal is so hard to reach as the one who fancies himself injured or has a grievance against society. Aside from treatment that compels him to feel resentment, there is no one thing that will so quickly bring this feeling as to have some tender-hearted, benevolent person tell him that they think his penalty is far more severe than his offence warrants, especially now that he has promised to pray regularly and abandon his wicked ways."[284] In connection with this point, we may notice Bellamy's theory of crime as Atavism, to be treated in the hospitals. Whether or not we regard crime as disease, a distinction must be drawn between the disease that may be regarded as physical weakness and that which does not necessarily imply such weakness, though it may imply some physical defect in the sense that the psychical characteristic has always its physical coördinate. We may call the places where our criminals are treated prisons, or we may call them hospitals; but the name will not alter the fact that crime, and even the crime the tendency to which manifests itself early in life and is most incorrigible, needs, for the most part, a wholly different treatment from that pursued with the sick or the insane. Discipline and labor may come into play in the insane asylum, and medicine and hygiene in the prison; but the methods are, nevertheless, widely separated, and need to be so in order to attain any success. Bellamy's conception of the character of the criminal by nature—such as he imagines as alone existing under the conditions of his ideal state—as rarely untruthful, does not at all accord with the facts of Psychology and Criminology. Total unreliability is one of the chief characteristics of the criminal by nature. He lies even where there is nothing to be gained by lying and often much to be lost; he lies apparently for the mere pleasure of lying; or he is crafty and cunning, and the smallest gain suffices to furnish him with a motive for falsehood. In mankind, as a whole, the love of truth, one of the latest developments of the moral sense, is likewise one of those earliest lost in any moral deterioration; and to suppose men, as a rule, strictly truthful and yet capable of committing crimes of any sort, especially in a general ideal state of society and morals, is to suppose a psychological contradiction. Moreover, the antipathy of the criminal to undergoing the penalty of his crime would still remain as long as the discipline and labor of the places for criminal treatment were not abolished; and even the restrictions of incarceration would render the penalty disagreeable, since liberty is always preferable to confinement. And if we consider the indefinite sentence, which all prison reformers now regard as the first condition of the successful treatment of crime, to be introduced, the reasons for pleading "Not Guilty" would by no means be removed. But I doubt whether a society of high moral development would sanction the doubling of the penalty which Bellamy conceives, as the punishment of simply a lie to escape it.

The question of capital punishment is more difficult than at first glance appears. One of the arguments often advanced in opposition to this form of punishment is that the fear of it is no preventive of the crime of murder (for which alone, in times of peace, it is still imposed in civilized countries), since murder still takes place. But the argument in this form is practically worthless; we might as well say that art exhibitions do nothing to form taste, since many people who visit them are still lacking in æsthetic feeling. The fact that men have gone away from public executions and committed murder is more to the purpose, as an indication that the influence of the spectacle is probably a bad one. As to the private execution within prison-walls, it is difficult to suppose that the mere knowledge of it could arouse a desire for blood, as the sight of it may be imagined to do. If we abandon capital punishment on this ground merely, ought we not, in consistency, to do away with all representations of violent death on the stage and all description of it in fiction, since these things must affect the imagination full as vividly. The gladiatorial shows of Rome were doubtless undesirable from a humanitarian point of view, not only in themselves, but also in their results; and it might be undesirable for most individuals to accustom themselves to the spectacle of the butchering of their meat; but, whether or not we agree with the vegetarians as to the social significance and influence of the use of animal-food (necessarily, of course, we must concede that every fact has an influence of some sort, and in some degree, upon the mind), it can scarcely be claimed that the mere knowledge that beeves are slaughtered somewhere is likely to influence the mind to such an extent as to lead to a morbid desire to imitate the deed; nor, the stimulating excitement of the actual spectacle of execution lacking, is it likely that the mere knowledge of its actuality should incite to the taking of human life. On the contrary, it appears far more likely that the would-be murderer should connect the thought of it with the possibilities of his own future in case of detection and arrest, and that he should, thus, be rather deterred from crime by it.

The vital questions appear to be whether we have a right thus to sacrifice life, and whether the evil which the murderer brings upon society may not be better prevented in some other way. Leaving out of consideration, for a moment, a point which will be considered later, the two questions will be seen to resolve themselves into one. If I should perceive an innocent man about to be murdered by a villain, who was on the point of plunging his knife into his victim's heart, and I had in my hand at the time a loaded revolver, my duty would be plain. I should have no choice as to the responsibility for one man's life; only the choice would be left me as to which life I would be responsible for; and to spare the murderer would be to make myself an accomplice in the murder. The responsibility lies with every society to do the utmost in its power to prevent the murder of citizens who are, in the majority of cases, better men than their murderer; and the life, even, of the murderer cannot stand out against the life of better men. If, then, the death sentence is the best preventive of murder, and society refuses to inflict it nevertheless, it makes itself the accomplice of the murderer as much as is the man who stands by and permits the knife to be plunged into the victim's heart, rather than shoot down its wielder. It is not mercy that spares the guilty to sacrifice the innocent. If, then, we must be responsible for the death of any man, let it be for that of the murderer rather than for that of his victims. It is easy enough to say, as do some on this point, that it should never become a principle of society to do evil in order that good may come; but as long as there are conflicting conditions in society, there can be no choice of absolute good; the only choice is between lesser and greater evils. Forgetting this, and looking only on the one side of the question on which their sympathy has especially been excited, reformers are sometimes guilty of choosing the greater evil in order that a lesser good may come. It is, therefore, not sufficient to brand capital punishment "a relic of barbarism," in order to prove that it should be abolished.

The problem of prevention of murder includes various elements: it includes the question of the possible repetition of the crime by the individual on trial, the question of his influence by precept and example, and that of his possible propagation of offspring who may inherit his evil propensities; and it also includes the question of the check of fear in other would-be murderers.

It has been claimed that imprisonment for life would act as an effectual preventive in all these respects. There may be, however, various objections to this penalty. In the first place, an unconditional life-sentence without hope of pardon is difficult to establish, especially in democratic countries; and its justice is doubtful, in case it were possible. Even if sentences of this sort were to be passed, pity would be likely to interfere later with their execution. And then the momentous question arises as to whether it would always be well-directed pity. The men in whom the right of pardon is vested are not always wise in their use of it, and in democratic countries they are guided to a considerable extent by the will of importunate portions of society which is often still less wise. The sentimentality which now vents itself in loading down violent criminals with flowers, fruit, gifts of all sorts, letters, photographs, commiserations for their "misfortune," and even offers of marriage, is likely to stand in the way of the safety of society in case the murderer lives. This sentimentality, which in many countries exalts the criminal into a hero, and in France turns the police court into a fashionable place of amusement, were it not to be followed by the dread ending which the sterner members of society exact, and were the hope of pardon still open, might invest arrest with even some attractions to the murderer, who is frequently a hero in his own eyes. The prominence of a desire for notoriety is evident in criminals of the Jack-the-Ripper and other types. The sentimentality which is unable to distinguish between a legitimate mercy, and the mercy to the individual which amounts to the worst of cruelty to many others, is, indeed, a continual danger to society and a hindrance to useful reforms.

Again, if the criminal be condemned to life-imprisonment, there is always the possibility of his escape to be considered, and the fact that he will probably stick at nothing to accomplish his escape. The dangers of ultimate success may not be so large; our prisons are nowadays strongly built, the warders and other officers are very seldom open to bribes, and the proportion of escapes is extremely small. Nevertheless, the hopelessness of a life-sentence must constitute a strong motive for the stimulation of effort and ingenuity; and it can scarcely be hoped that a man who has not before hesitated at murder, and who has no greater penalty to fear in case of any number of repetitions of the crime, will hesitate when his liberty and all it means to him of freedom from irksome discipline and restraint of vice, is at stake. And in case of escape society has to fear, not only repetitions of the crime, but also the numberless and complex workings of the criminal's influence on others, and the propagation of offspring who may inherit his evil propensities.

And, furthermore, if the sentence of life-imprisonment is carried out, the murderer's influence on the other tenants of the prison is to be considered, in case he is not kept in solitary confinement. The preservation of a large number of desperate criminals, in contact with the less corrupt ones whose reform is being attempted, has many objections. Criminals have more than once stated that they learned their worst principles from companions in prison, and many of our prisons and many of our reformatories have been called mere schools of vice. Moreover, in maintaining our desperate criminals, we are spending large sums for their comfort while hundreds of better men are left to starve, and thousands are more poorly clothed and fed.

The fact that murder has not increased in some countries where the death-sentence has been abolished may be admitted as evidence in the matter, but cannot be regarded, alone, as conclusive. For, first, that which is for the general good in one country may not be so in another, the national temperament, form of government, and general habits of which are different. And, furthermore, it may be said that, although statistics undoubtedly must have some meaning in all cases, the complication of social conditions renders it often difficult to say just what the significance may be in the particular case. In the diminution of murders, other circumstances may have been at work which would have lessened the number even if the death-sentence had not been abolished. At least, experiments with regard to the abolition of the death-penalty have been too few to render any categorical assertion on the subject possible.

But some of the above-stated objections to the abolition of capital punishment might be removed by the provision of separate prisons for malefactors condemned to life-imprisonment, with separate wards according to the moral condition of the prisoners, little communication being allowed between even those in the same ward, or communication only under supervision, and such instruction being given as would enable the individual to occupy the hours not devoted to labor in study, reading, or other mental recreation.

Green, in his book on crime, calls attention to the very undesirable vindictiveness sometimes aroused, by sentence of death, in the minds of the condemned and of his friends, and notices the general evil of the feeling in the minds of criminals that the state is their deadly foe, defiance of the laws being thus raised to the plane of legitimate warfare upon an enemy. The Hon. John J. Wheeler, in a paper quoted by Green, lays especial stress on the desirability of convincing the criminal that not revenge but the protection of society is aimed at in state-punishment.