Art. V.—UNCERTAINTY OF CONVICTION AND PUNISHMENT.
Among the considerations which (we may suppose) exert the chief influence in prompting a man to crime, or in deterring him from it, we must regard the probability of detection and punishment, as by no means the least. Not that a man who is about to commit a crime considers very scrupulously either what measure of punishment is affixed to a certain shade of crime, or what are the chances for escaping detection; but there is a general conviction abroad in all communities on these subjects, engendered by observing from time to time the proportion of criminal acts that escape detection, and the proportion of criminal actors that evade merited punishment; and this general impression influences evil-disposed persons quite as much as any other class. Hence when the idea prevails that the chances are quite even, in favor of escaping detection, or that if detected, the chances are quite equal, that the threatened punishment may be evaded, there will be of course a proportionate relaxation of restraining influence upon criminal propensities. Let two or three children in a family succeed in a plan of disobedience in several instances, which are not detected, or let the prescribed punishment be withheld from a few offences that are clearly made out, and mischievous effects will soon become evident.
Perhaps some of our readers have never taken the trouble to survey the stages through which a criminal process must be conducted, and the embarrassments which attend it.
Besides the reluctance to prosecute, and thus expose one’s-self to a very undesirable notoriety, and incur the enmity, and possibly kindle the resentments of a malevolent and reckless heart, there is, in the country-districts, an inefficiency of police arrangements, of which an accomplished rogue well knows how to take advantage.
The avenues for escape are so various, and the methods of communication (aside from telegraph lines) so uncertain and infrequent, that the most wary police force is not seldom put to its wit’s end. In the country districts a young thief or burglar can obtain considerable practice in his profession before there is stir enough to prompt to his arrest. If a hen roost or garden or orchard is robbed, the owner prefers to put up with his loss, rather than be at the trouble to ferret out the rogue, and after all be defeated. The manufacturer or trader who is defrauded by a dishonest clerk, quietly dismisses the offender, and leaves it for his next employer to find out the lad’s character for himself. The course of reasoning is substantially this: The rogue will never have a chance to play his game with me again. Perhaps this disclosure of his criminal propensities may be the means of inducing him to reform; I do not wish to be the instrument of blasting his character and prospects, and bringing distress and reproach on his innocent family. Besides, I have not much faith in imprisonment as a means of reformation or discipline. So, on the whole, I will pocket my loss and send the culprit to seek his fortune—by hook or by crook, as he lists. Many a finished rogue is indebted for his proficiency in crime to this humane-looking selfishness or morbid benevolence.
It is probably this general indisposition in private individuals to incur the risk and trouble of prosecuting offences, that has led to the establishment of associations for the purpose—such as societies for the detection and prosecution of horse-thieves, counterfeiters, &c., of which there are said to be not less than five hundred in the counties of England and Wales. It has been said that the existence of such societies is a proof that the State has abdicated its functions in this respect, and that posterity will refer to them as evidence of the imperfection of our present social condition, and of the misconception on the part of the State of its primary duties.
But suppose a culprit is detected and prosecuted, what is the probability of his conviction. We have not the means to determine what it is in the United States, but out of 26,813 persons committed for trial in England in 1850, 6,238, or about one in four escaped conviction! Indeed, the number acquitted by the verdict of a jury in 1850, exceeded the whole number committed in 1810. The proportion of acquittals is probably far greater in our country.
But if conviction is secured, there is still a wide range in the measure of punishment. Even in the compact and uniform administration of English law, the punishments for the same offences vary almost indefinitely,—a verdict for manslaughter, for example, may be followed by a sentence of transportation for life or imprisonment for an hour! In our score or two of independent sovereignties, this diversity of punishment for similar offences is much greater, and as every man is disposed to expect indulgence towards himself, the lightest punishment is expected, and a severe one is regarded as cruel and tyrannical.
The uncertainty to which we have referred, has been justly regarded as a provocation to crime.
Those who feel tempted to transgress the laws must be supposed to make some sort of calculation as to the risk they will run. If they perceive that the advantage of a criminal course is more certain than its punishment—or, at least, if it appears so to them—they will pursue the course of their inclinations. But if the punishment, however slight, were indissolubly associated with the notion of the offence, the latter would be rarely committed. If the punishment merely consisted, as Bentham says, in taking from the offender the fruits of his crime and that punishment were certain, no more such crimes would be committed; for no man would be so foolish as to commit them. But, as there are so many chances of escape, it is necessary to make punishments more severe than if they oftener followed the offence. No measures, therefore, can be more humane than such as tend to attach certainty of punishment to crime, because, just in proportion as that certainty is increased, the severity of the penalty may be diminished. Hence also it further appears that the due proportion and immediate connection between crimes and their punishment are points likely to have great weight with criminals; because the great body of offences being larcenies, and perpetrated from cupidity and not from passion, the thief will soon abstain from plunder, and the forger from his counterfeit art, when common sense calmly whispers that he will lose and not gain by the transaction.