Many a man thinks that it is his goodness which keeps him from crime, when it is only his full stomach. On half allowance, he would be as ugly and knavish as anybody. Don’t mistake potatoes for principles.—Carlyle.
A normal child of five years once asked the meaning of this expression—“hanging a murderer,” and after explanation said eagerly, “But will hanging the man make that other man alive again?” On receiving a negative reply, the remonstrance burst forth, “Then why kill him, since when he is dead we can never make him good again?”
This is a true picture of the thinking and feeling about crime which is natural to the best types of our present-day humanity. These demand that our punishments shall either reform the criminal or protect society effectively from his malfeasance. As a matter of fact, our criminal code and whole machinery and procedure relative to crime accomplish neither, and this is freely admitted by men whose position enables them to judge accurately and entitles them to express an opinion.
Mr. Justice Matthew has said at the Birmingham Assizes that the present state of the criminal law is a hundred years behind the times. Sir Edmund Du Cane, Chairman of the Directors of Convict Prisons, says of the solitary system practised in our penal prisons: “It is an artificial state of existence, absolutely opposed to that which nature points out as the condition of mental, moral and physical health.... The minds of the prisoners become enfeebled by long-continued isolation.” In the Official Report of the Departmental Committee on Prisons, 1895, these words occur: “The prisoners have been treated too much as a hopeless or worthless part of the community. The moral condition in which a large number of prisoners leave the prison, and the serious number of recommittals, have led us to think there is ample cause for a searching inquiry into the main features of prison life.” The late Judge Fitz-Stephen published his History of the Criminal Law in 1883, and pointed there to “notorious evils of which it is difficult,” said he, “to find a satisfactory remedy.” Nevertheless, he put down his finger on the crucial spot when he wrote “the law proceeds upon the principle that it is morally right to hate criminals. It confirms and justifies that sentiment by inflicting upon criminals punishment which expresses it.”
But it is not right to hate criminals. It is morally wrong, i.e. it is contrary to these laws of nature, by which alone an elevated and happy social life may be attained. The emotion of hatred creates vibrations producing evil on the moral plane, as certainly as discordant sounds, acting on sensitive ears, produce discomfort; and, if persisted in, produce organic disorganization on the physical plane. Hence, all punishment or legal procedure directed against crime, having hatred at its foundation, or historic base, must fail. On the negative side, hatred has proved ineffectual in protecting society from crime. On the positive side, it increases the anti-social feelings, whose natural outcome is crime, and frustrates, or annuls, the human forces of love, which already widely existent, and swaying humanity’s best types, are the true evolutional factors by which to annihilate crime.
Mr. Justice Matthew was simply asserting a fact of social science when he stated that the criminal law is out of date. It consists with a primitive stage of social life; but it is totally inconsistent with even the semi-civilization of to-day. The fundamental discord between our action and feeling relative to crime declares itself in the uncertainty of a criminal’s fate and the steady survival of his type. But, my reader, while accepting Justice Matthew’s premise, may doubt the conclusion at which Judge Fitz-Stephen arrived—that vindictiveness or hate lies at the root of our criminal code, and that our punishments express it. Moreover, he may condemn by anticipation a supposed tendency on my part to censure all punishments, and rely solely on a laissez-faire system of dealing with crime. Scientific meliorism, however, does not imply anarchy or the absence of governing law. Its methods repudiate the laissez-faire principle in every department of life, for this reason: Our developed faculties and accumulated knowledge make untenable the negative or inert position. We are impelled in an epoch of conscious evolution to take positive action favourable to progress.
My contention is this: love of all men, not hatred of any man or class of men ought to be the basis of our criminal code. Modern science, experience and skill are competent to redeem the criminal class, speaking generally, and in exceptional cases, where redemption is impossible, can render the criminal innocuous to society, while giving him throughout life such innocent happiness as a being organically defective may enjoy.
This thesis embraces a very wide range of action. It means the systematic rational treatment of evil-doers, from the refractory infant and juvenile pickpocket to the burglar, the fraudulent bankrupt, the felon, the traitor, the murderer, and if any exist, the born criminal. It signifies, in short, a complete science complementary to that of true education. For whereas the latter comprises all manner of attractive stimuli to noble living, this is the science of necessary social restraints to be applied in nursery, school and prison with the universal gentleness which springs from universal love. The purpose to be aimed at is, first, improving character by restraining obnoxious tendencies; second, reforming character already become anti-social; third, protecting society from all corrupt infusion that might proceed from morally diseased character.
A leading principle of the criminal law of Great Britain is that punishment be adjusted in proportion to the supposed magnitude of each individual offence. If we study this principle, we must perceive the truth of Judge Fitz-Stephen’s allegation, for what connexion has it with the reformation of the criminal? A judge or a jury makes no attempt to compute the amount of prison restraint and discipline necessary to reformation, nor are they possessed of facts for forming a judgment. Their whole attention has been focussed on the crime, not on the character of the criminal, or the antecedent and future conditions affecting the character. Neither does the judicial sentence connect itself proportionately with the mischief done to society. A fraudulent banker or commercial speculator, whose downfall involves the ruin of thousands, is not dealt with, as compared with a petty thief, on a scale of severity expressive of the magnitude of suffering entailed. And the petty thief, who steals the rich man’s goods, as compared with the criminal who beats and abuses his wife, is adjudged a severer penalty—a measure of punishment indicating the superior value of goods over wives, which is a sentiment appropriate only to barbarous times.
These anomalies, however, are explainable. Our laws have descended to us from a barbarous age, when might was right, irrespective of justice; and from a race whose punishments sprang from revenge, and were roughly proportioned to the feeling of revenge. They are little else than reactionary forces, of which some are always present in an inchoate society. Their inapplicability to the task of reforming criminals is easily proved.