§ 29. Preventive Punishment.
Punishment is in the second place preventive or disabling. Its primary and general purpose being to deter by fear, its secondary and special purpose is, wherever possible and expedient, to prevent a repetition of wrongdoing by the disablement of the offender. We hang murderers not merely that we may put into the hearts of others like them the fear of a like fate, but for the same reason for which we kill snakes, namely, because it is better for us that they should be out of the world than in it. A similar secondary purpose exists in such penalties as imprisonment, exile, and forfeiture of office.
§ 30. Reformative Punishment.
Punishment is in the third place reformative. Offences are committed through the influence of motives upon character, and may be prevented either by a change of motives or by a change of character. Punishment as deterrent acts in the former method; punishment as reformative in the latter. This curative or medicinal function is practically limited to a particular species of penalty, namely, imprisonment, and even in this case pertains to the ideal rather than to the actual. It would seem, however, that this aspect of the criminal law is destined to increasing prominence. The new science of criminal anthropology would fain identify crime with disease, and would willingly deliver the criminal out of the hands of the men of law into those of the men of medicine. The feud between the two professions touching the question of insanity threatens to extend itself throughout the whole domain of crime.
It is plain that there is a necessary conflict between the deterrent and the reformative theories of punishment, and that the system of criminal justice will vary in important respects according as the former or the latter principle prevails in it. The purely reformative theory admits only such forms of punishment as are subservient to the education and discipline of the criminal, and rejects all those which are profitable only as deterrent or disabling. Death is in this view no fitting penalty; we must cure our criminals, not kill them. Flogging and other corporal inflictions are condemned as relics of barbarism by the advocates of the new doctrine; such penalties are said to be degrading and brutalizing both to those who suffer and to those who inflict them, and so fail in the central purpose of criminal justice. Imprisonment, indeed, as already indicated, is the only important instrument available for the purpose of a purely reformative system. Even this, however, to be fitted for such a purpose, requires alleviation to a degree quite inadmissible in the alternative system. If criminals are sent to prison in order to be there transformed into good citizens by physical, intellectual, and moral training, prisons must be turned into dwelling-places far too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn. A further illustration of the divergence between the deterrent and the reformative theories is supplied by the case of incorrigible offenders. The most sanguine advocate of the curative treatment of criminals must admit that there are in the world men who are incurably bad, men who by some vice of nature are even in their youth beyond the reach of reformative influences, and with whom crime is not so much a bad habit as an ineradicable instinct. What shall be done with these? The only logical inference from the reformative theory is that they should be abandoned in despair as no fit subjects for penal discipline. The deterrent and disabling theories, on the other hand, regard such offenders as being pre-eminently those with whom the criminal law is called upon to deal. That they may be precluded from further mischief, and at the same time serve as a warning to others, they are justly deprived of their liberty, and in extreme cases of life itself.
The application of the purely reformative theory, therefore, would lead to astonishing and inadmissible results. The perfect system of criminal justice is based on neither the reformative nor the deterrent principle exclusively, but is the result of a compromise between them. In this compromise it is the deterrent principle which possesses predominant influence, and its advocates who have the last word. This is the primary and essential end of punishment, and all others are merely secondary and accidental. The present tendency to attribute exaggerated importance to the reformative element is a reaction against the former tendency to neglect it altogether, and like most reactions it falls into the falsehood of extremes. It is an important truth, unduly neglected in times past, that to a very large extent criminals are not normal and healthy human beings, and that crime is in great measure the product of physical and mental abnormality and degeneracy. It has been too much the practice to deal with offenders on the assumption that they are ordinary types of humanity. Too much attention has been paid to the crime, and too little to the criminal. Yet we must be careful not to fall into the opposite extreme. If crime has become the monopoly of the abnormal and the degenerate or even the mentally unsound, the fact must be ascribed to the selective influence of a system of criminal justice based on a sterner principle than that of reformation. The more efficient the coercive action of the state becomes, the more successful it is in restraining all normal human beings from the dangerous paths of crime, and the higher becomes the proportion of degeneracy among those who break the law. Even with our present imperfect methods the proportion of insane persons among murderers is very high; but if the state could succeed in making it impossible to commit murder in a sound mind without being indubitably hanged for it afterwards, murder would become, with scarcely an exception, limited to the insane.
If, after this consummation had been reached, the opinion were advanced that inasmuch as all murderers are insane, murder is not a crime which needs to be suppressed by the strong arm of the penal law, and pertains to the sphere of medicine rather than to that of jurisprudence, the fallacy of the argument would be obvious. Were the state to act on any such principle, the proposition that all murderers are insane would very rapidly cease to be true. The same fallacy, though in a less obvious form, is present in the more general argument that, since the proportion of disease and degeneracy among criminals is so great, the reformative function of punishment should prevail over, and in a great measure exclude, its deterrent and coercive functions. For it is chiefly through the permanent influence and operation of these latter functions, partly direct in producing a fear of evildoing, partly indirect in establishing and maintaining those moral habits and sentiments which are possible only under the shelter of coercive law, that crime has become limited, in such measure as it has, to the degenerate, the abnormal, and the insane. Given an efficient penal system, crime is too poor a bargain to commend itself, save in exceptional circumstances, to any except those who lack the self-control, the intelligence, the prudence, or the moral sentiments of the normal man. But apart from criminal law in its sterner aspects, and apart from that positive morality which is largely the product of it, crime is a profitable industry, which will flourish exceedingly, and be by no means left as a monopoly to the feebler and less efficient members of society.
Although the general substitution of the reformative for the deterrent principle would lead to disaster, it may be argued that the substitution is possible and desirable in the special case of the abnormal and degenerate. Purely reformative treatment is now limited to the insane and the very young; should it not be extended to include all those who fall into crime through their failure to attain to the standard of normal humanity? No such scheme, however, seems practicable. In the first place, it is not possible to draw any sharp line of distinction between the normal and the degenerate human being. It is difficult enough in the only case of degeneracy now recognised by the law, namely insanity; but the difficulty would be a thousand-fold increased had we to take account of every lapse from the average type. The law is necessarily a rough and ready instrument, and men must be content in general to be judged and dealt with by it on the basis of their common humanity, and not on that of their special idiosyncrasies. In the second place, even in the case of those who are distinctly abnormal, it does not appear, except in the special instance of mental unsoundness, that the purely deterrent influences of punishment are not effective and urgently required. If a man is destitute of the affections and social instincts of humanity, the judgment of common sense upon him is not that he should be treated more leniently than the normal evildoer—not that society should cherish him in the hope of making him a good citizen—but that by the rigour of penal discipline his fate should be made a terror and a warning to himself and others. And in this matter sound science approves the judgment of common sense. Even in the case of the abnormal it is easier and more profitable to prevent crime by the fear of punishment than to procure by reformative treatment the repentance and amendment of the criminal.
It is needful, then, in view of modern theories and tendencies, to insist on the primary importance of the deterrent element in criminal justice. The reformative element must not be overlooked, but neither must it be allowed to assume undue prominence. To what extent it may be permitted in particular instances to overrule the requirements of a strictly deterrent theory is a question of time, place, and circumstance. In the case of youthful criminals the chances of effective reformation are greater than in that of adults, and the rightful importance of the reformative principle is therefore greater also. In orderly and law-abiding communities concessions may be safely made in the interests of reformation, which in more turbulent societies would be fatal to the public welfare.