The criminal classes do not neglect their newspapers, but keep themselves pretty well posted, either by reading or conversation, upon the subjects that are of most direct interest to them, and follow all the details of the most important criminal trials. In this way they always keep more or less before them the thought of the nature of capital punishment, and I believe that it will be found that the number of capital crimes in any given period is inversely proportionate to the number of capital punishments in the immediately preceding period. Whenever there is a series of executions, without reprieves, the number of murders decreases, and on the other hand, after a period in which several persons have been tried for murder and acquitted, or reprieved after sentence, the number of crimes appears to increase. I do not think that this rule can be demonstrated forcibly and convincingly by a reference to the mere numbers of murders, convictions, reprieves, and executions during the past few years, because there are many considerations which bear upon the significance of an execution or reprieve; but I think that anyone who has given attention to the subject will bear me out in my contention.
Undoubtedly the fear of death is a great deterring power amongst abandoned men, and the fear is most powerful when the death seems most certain and the hope of reprieve most remote. This consideration leads me to think that the deterrent value of the death sentence would be greatly increased if it could be made absolutely irrevocable. Considering capital punishment as a moral power for frightening criminals still at large, I think it would be much better, if in all cases where there is the slightest possible chance of reprieve, the sentence were suspended for a time.
I advocate that the sentence of death, once passed, should be a sentence which the doomed man, as well as his friends and sympathisers who are still at liberty, should regard as quite irrevocable. At the same time I do not advocate an increase in the number of executions—just the reverse. As the best means to this end I think we ought to have a considerable alteration in our criminal law as it relates to murder cases. I think that the jury should have more power over the sentence, and for this purpose I think that they ought to have the choice of five classes of verdict, namely:—
- Not guilty.
- Not proven.
- Murder in the third degree.
- Murder in the second degree.
- Murder in the first degree.
In the case of a verdict of “Not Guilty” the prisoner would, of course, be acquitted, and would be a free man as he is with such a verdict at present.
In the case of the verdict of “Not Proven” it should be within the power of the judge to remand the prisoner, pending the further investigation of any clues that might seem likely to throw light upon the case; or to release him, either with or without bail or police supervision.
A verdict of “Murder in the third degree” would be brought in in cases where there was undoubted proof of the crime being committed by the prisoner, but in which the circumstances were such as to make it extremely unlikely that the prisoner would ever again commit a violent crime. This would cover the cases of people who shoot their friends and then plead that they “did not think it was loaded,” and would be a much better verdict than the “accidental death” which is generally returned at present. When the jury find this verdict of murder in the third degree it should rest with the judge to impose a term of imprisonment, long or short, according to the circumstances.
“Murder in the second degree” would embrace cases in which the murder was fully proved but in which there was not premeditation or intent to murder. Under this head would come a number of deaths resulting from rows, brawls, and assaults without intent to kill. The judge would have the power to pass a sentence of death or of penal servitude for life.
“Murder in the first degree,” in which both intent and result had been murder, would be a verdict leaving the judge no option but to impose the death penalty.
Another question which ought to be considered in this connection is the question of appeals. At present appeals are made to the Home Secretary. He is really assisted by a number of other gentlemen, who examine most thoroughly into the original evidence, and any additional evidence that may have turned up, but this is a tribunal not legally appointed, and the public notion is that in cases of appeal the reversal of the sentence lies in the hands of one man. I do not think that even the most abandoned wretches would impute any unfairness to the English Home Secretary, but I know that in many quarters there is an idea that the Home Secretary is “a very kind gentleman,” who will “let ’em off” if he possibly can, and such an idea seems to be a very mischievous one. A court of appeal would appear less personal, and would be far less likely to be suspected of leniency if it consisted of three judges, one of whom should be the judge who had originally tried the case. To such a bench of judges I would allow appeals to be made, and would give them power to re-open cases, refer them back to the juries, or to modify sentences, but not to reverse a jury’s verdict. This would mean that in the case of a verdict of “murder in the first degree,” the only way in which the execution could be prevented would be by referring the case back to the jury, and this should only be done on the production of new evidence pointing to a miscarriage of justice. In the extreme case of evidence turning up at the last moment, the Home Secretary should have power to grant a stay of execution for such length of time as would allow the bench of judges to re-open the case.