The Criminal & the Community

by James Devon

Few would defend the application literally of the retributive “eye-for-an-eye” principle. They know that a man’s eye may not be of as much use to him as that which he has destroyed may have been to his victim. It may be like taking gold and offering lead in exchange. Even if the eyes be equal in value it does not in the slightest degree compensate the injured person to know that the person who did him the injury is as blind as he; and as for the community, it is to place two blind men where one was before. Of course nobody has proposed to deal in this manner with the person who blinds another; but many are quite satisfied to act on the principle, and to apply it by way of killing murderers and flogging those who commit assaults. The law has prohibited certain actions as below the standard of conduct permitted to the members of the community. When a man takes life, in order to show him the sacredness of life, it takes his. It is a lesson to him; and there is this to be said for it, that it prevents him from offending again.

We all know how much we are the superiors of the poor foreigners in our manners and our powers, for in spite of our modesty, our teachers in the Press are always insisting on the fact, and truth compels us to admit it. Yet these same teachers sometimes confuse us not a little by their methods of defending us when we are charged with doing something which we cannot deny having done. Some necessary severity in war, or some strong actions on the part of those who in our name teach the native races how to live, may have provoked remark on the part of other nations. At once we hear that they have done similar things; but if we are better than they, surely we must prove it by our actions? If we are better than those whom we judge and condemn, why do we treat them as they have treated others?

To hire a man to kill another is a queer way to teach men to respect life. That our fathers did it is true, and we have taken over the practice from them. I do not think it probable that our fathers were any greater fools than we are, but their circumstances were different; not to speak of the fact that we have had handed on to us by them an accumulation of experience in civil life which they had not time to absorb. We may be no better than they were, but they have not failed to contribute to make us better off, and their ways of doing things are not suitable to the altered circumstances in which we find ourselves. They were more worried by their fighting men than we are, and were always liable to be assailed by some lord or other whose honourable occupation was arms and who was industrious in the pursuit of it. He or somebody like him professed to protect the worker and ensure him the fruits of his labour—less discount. The fighting man has always made this profession; but he never protects the worker from the worker; he protects the worker from some other warrior who may be a greater nuisance—or may not. Now he is under the direction of the law, and is not allowed to make war on his own account. The survivals that do are criminals.

In the good old days the governor was often busily engaged and had no time to bother with offenders. The pit or the gallows were for them, unless they could be depended on to refrain from troubling him and pay him for letting them work. Part of the time he was himself a prisoner in his castle—and a not very sanitary or comfortable prison it was—and at other times he was acting as warder over some other lord whom he had besieged. The easiest way to deal with unruly persons was to hang them to a tree and leave them there; they deserved it, and even if they did not, they might do so; in any case they were a good riddance. Now we are more settled and less summary in our dealings with each other. We have long ceased to employ the hangman except in cases of murder, and even then the penalty is seldom inflicted in Scotland; for it is repugnant to the feelings of most juries, and they only call killing “murder” when their feelings of indignation get the upper hand.

I am far from saying that no case can now be made out for capital punishment; what I am contending is that it is the outstanding example of the application of the retributory principle; and yet in practice it is usually defended on the ground that the culprit is so bad that he ought to be killed—another ground altogether. “What could you do with a man who would do that?” is the question addressed to those who assert that the worst use to which you can put a man is to kill him. Well, is he so bad as all that? I have seen a number of very tough specimens under sentence of death, and have watched the effect on warders of intimate association with them. They have had to be constantly in the company of the condemned, for although he has to be killed he must be given no opportunity to kill himself; and in almost every case the men had only one opinion after getting closely in touch with the criminal, and that opinion was that, in spite of all the evil in him, he was not such a bad creature after all. In some cases the opinion of his character was much more favourable; but in all cases the opinions were the result of seeing the man when he was under the sentence of the law. That is as true an observation as that the sentence was the result of conduct when he was running wild. It was the same man who had done the wicked act who impressed men favourably, though their official bias was against him; and he could not have done so if the qualities had not been in him.

There may be men among us who are so utterly bad that all the State can do with them is to kill them in order to secure the safety of others, but I have not seen them. There are men so riddled with disease that no cure for them can be held out, and the disease may be of such a character that it is likely to infect or affect injuriously those who attend them, but doctors are not permitted to kill them. In these cases as strong an argument could be adduced in favour of capital punishment as in the case of criminals; and there are those who advocate the lethal chamber for certain classes of the diseased and “unfit.” In every case the advocates of the proposal should be the first to go there, for their very advocacy shows that they are themselves unfit to take a sufficiently wide view of the good of the State.

We know too little of the possibilities of life to be justified in condemning anyone to death. The medical man speaks of some diseases as being incurable; but so far from meaning what he says literally, his whole life is spent in seeking for cures. Knowledge widens slowly, and false lights are hailed as true, but in spite of all set-backs there is progress; and to-day the diseased conditions that our fathers could not deal with may be relieved and in many cases cured. What the doctor really means is that there are many diseases for which he has not yet found the appropriate remedy; and when we speak of men as being incorrigible we are only entitled to use the word in the same limited way, meaning that we have so far not been able to correct them.

The infliction of the death penalty has no good effect on those engaged in it. I have never seen anyone who had anything to do with it that was not the worse for it. As for the doctor, who must be in attendance, it is an outrage on all his professional, as well as his personal feelings. The physician is taught that it is his duty to save life, apart altogether from its personal value. When he is called in to a patient it is no affair of his whether the sick person is a saint or a sinner; it is his duty to do his best for the patient irrespective of any question of character, and to risk infection as readily for the sake of the wicked as for the sake of the good. At the behest of the law he has to take a part in the killing of a man whom he has been instructed to attend in order that at the proper time he may be led to death in a state of good health.

I do not say that there are not men who may seem so debased and vile that any reformation would appear to be only remotely possible; but while they are to be blamed for their wickedness, we are not free from blame for permitting them to grow into such a state before taking them in hand. In no case that I have seen was such interference impossible had our system been one that lent itself to the prevention of crime and the reformation of the criminal; but because it was easier and more profitable for them to do ill than to do well, they went the wrong road with disastrous results to others as well as to themselves. Blame them by all means; but let us be just, and having settled how much they are to blame—not a very profitable task—let us set about to find how far we are to blame; having punished them, what about punishing ourselves? Our punishment is fixed by laws that no Parliament can alter; our own neglect of the wrongdoer ensures it.

The objections to capital punishment apply to all punishment up to a point, for if it is wrong to slay a man it is also wrong to maim him; and in so far as our conduct towards him makes him a less efficient member of the community it does maim him. There are many who are so indignant with the law-breaker that they have no patience with anybody who has doubts as to whether our way of dealing with him is all that could be desired. They object to his being pampered—whatever that means—and call everybody a sentimentalist who is not for “vigorous means of repression.” There is a sentiment of brutality that is quite as dangerous as any sentiment of pity, and a great deal more harmful; but pity for the criminal need have very little part in consideration for his reform. He may be, and often is, far from being an estimable or attractive person, and the last thing he needs is pity. A man may be a good physician or surgeon without being given to anything approaching sentiment that is maudlin; but whether he is full of pity or not he must be sympathetic—that is to say, he must be able to appreciate the standpoint of those with whom he is dealing. So must the man who would deal with offenders; if he fails in that he fails in everything. It may be all very well to describe some of them as brutes and to say they should be treated as brutes, but it does not help forward the matter of treatment in the slightest degree; for even brutes cannot all be treated alike, and if a man is treated as a brute it is not likely to result in making him behave like a man. “The only way to make a man is—Think him one, J. B., As well as you or me.”