SHALL PUNISHMENT PUNISH?
It is published that in England a man has been undergoing an aggregate imprisonment of ten years for breaking a shop window, at different times, and that when recently pardoned he immediately broke the same window again for the purpose of being again arrested. One who knows nothing more than this of the facts cannot presume to determine what punishment should in justice be given to this particular offender; but the case is interesting as an extreme example of what frequently occurs in a less striking degree in this country. Police courts become acquainted with a class of criminals who would rather go to jail for their dinner, especially in winter, than earn a dinner by hard work. They are the confirmed vagabonds from whom the army of summer tramps is chiefly recruited. They never feel truly virtuous and happy in cold weather except when they have committed a petty offence and are on the way to "punishment," which consists in accepting from a thoughtful public a warm shelter and all the food they want. It is their business to live, at times if not constantly, in this way. Sending them to jail for their offences is known by the courts that send them to be nothing but a sorry farce.
There is another equally incorrigible class, who commit greater crimes, but not chiefly for the sake of "punishment." Detectives keep themselves advised of the sentences of these offenders, and prepare to shadow them anew whenever they are released from confinement. It is not expected that incarceration will have any reformatory effect. The question of reforming them, as of reforming those who offend to get rid of the trouble of taking care of themselves, comes to be left out of consideration, after a little experience, by the officers whose duty it is to deal with them. Only intimidation remains for a considerable number. With these, rather than with the English window-breaker, should probably be classed the subject of this item from a late newspaper: "Charles Dickens is dead, and died of honest work; but the German prisoner, Charles Langheimer, whom he saw in the penitentiary at Philadelphia thirty-three years ago, and over whose punishment by solitary confinement he lamented in 'American Notes,' describing him as 'a picture of forlorn affliction and distress of mind,' still lives at the age of seventy-five, and has just been sent back to his old quarters the sixth time, for his chronic offence of petty theft, which has kept him in jail full half his long life."
That punishment for crime is necessary, and therefore a public duty, is admitted, and every community professes to impose it. But what of the criminals whom punishment as now administered does not punish—who actually commit crimes for the purpose of receiving it? It would seem that society has not the power or has not the wisdom to protect itself. It has the right, of course. It has the power also.
The law does not succeed in what it attempts and professes to do. At present when we find a criminal who has sufficient good in him to feel our methods, we punish him in proportion to his—goodness. When we find one so vile that our methods are like water on a duck's back, we do not punish him—except as water punishes a duck. He goes unpunished because he is so bad, while a better man is punished because he is better. What is this but rewarding insensibility? It is very creditable to the hearts of the lawmakers—perhaps—but it is fraud on the community. It is legalized wickedness. It permits incarnate nuisances to wax fat, and prey upon honest industry, and increase and multiply, until they become the only prosperous and protected class.
It has been suggested that a criminal on his second conviction be deemed a professional, and incarcerated for life. It would no doubt be cheaper for the public to shut him up thus and support him permanently. But there is the objection that the punishment would generally be out of proportion to the crime, if it were a punishment at all; and if it were not a punishment, we would be offering a greater premium on vice than we now are. To punish petty larceny as if it were as great a crime as manslaughter or murder would be too unjust to be long possible. The case seems to demand a new medicine rather than a greater dose of one which has failed when tried in any practicable quantities.
There is one remedy, so far as the infliction of real punishment is a remedy, although those who administer justice as above described will hold up their hands in horror at the mention of it. If it be a fact that the punishment of criminals is necessary, and if it be a fact that a class of them is impervious to any punishment except physical pain, then we are bound to either inflict this pain or else abandon the principle of punishment. There is no third course if the two facts are admitted—and to those who will not admit them an unprejudiced reading of the criminal news of the past three hundred and sixty-five days is commended. If one man's heart is callous to what will break another's, all men's backs are of nearly equal tenderness. It is doubtful whether the whipping-post ever had a fair trial without proving that it might be made a good thing under such circumstances as we must very soon, if we do not now, confront.
The fact that it was once used and then abandoned does not settle the case. It was erected for those who could have been otherwise dealt with, and for those who deserved no punishment at all. It was not reserved for only those deserving punishment, on whom our more refined penalties had been tried and had failed. It is not a fair trial of it to put it into the hands of a drunken or passionate ship's captain; or the hands of a religious bigot; or the hands of a slave-driver; or the hands of a tyrant or autocrat of any kind; or the hands of an incompetent judge; or the hands of any judge in a ruder age than this. If an ignorant or brutal use of it in the past condemns an enlightened use of it now, we should abandon life-taking and imprisonment, for these have been even more abused. We have no fear that the death penalty will be misused hereafter because men have been hung for petty larceny heretofore. When the lash is wielded by a barbarous hand, as it generally has been, of course we abhor it. But how about it when the hand of Christ wields it in the temple? Although the incarnation of charity made him a scourge for those who needed it, yet we cannot follow His example because Torquemadas have made scourges for those who did not need them. Such is the logic of those who would cite the past in this matter. The truth is, the lash was abandoned in the humane belief that criminals could be punished without it; and the truth also is, some criminals are now proving that they cannot be punished without it.