i. The penalty. The present codes give prominence to three kinds of penalties: fines, different kinds of imprisonment, and capital punishment. We naturally do not have to say anything of the first of these, since there can be no question raised as to its effect upon the person upon whom the fine is laid. All that we can say is that this penalty fails of its object since no account is taken of the financial condition of the person sentenced to it, and it follows that while the punishment involved is only trifling for the rich, it constitutes a heavy burden for the poor. Often a fine for a poor man who cannot pay is simply a sentence to a short imprisonment.
The death penalty also naturally is outside of our present discussion. I would simply observe that among the numerous arguments against this penalty it must be noted that it has no intimidating effect upon those who are present, as one would suppose, but on the contrary a demoralizing influence; besides which the attention of the ignorant class is drawn to the crime and the perpetrator of it. Those who are condemned to death have almost all been present at executions. Out of a total of 511 of whom we have information, there were only 15 (about 3%) who had never witnessed an execution.[304]
In investigating the influence of punishment upon morality it is imprisonment alone, therefore, which must be taken into consideration, so much the more since even in the case of minor crimes it is almost always inflicted, while capital punishment is either altogether abolished, as in some countries, or else rarely pronounced and still more rarely executed.
The following table shows how many times imprisonment is inflicted in comparison with other forms of punishment. [[520]]
Germany, 1882–1895.[305]
| Years. | Penalties to Each 1,000 Persons Sentenced. | |||||
| Death. | Imprisonment (All kinds.) | Fines. | Public Admonition. | |||
| 1882 | 0.3 | 736.3 | 253 | 10 | ||
| 1883–87 |  | annual average | 0.2 | 697.4 | 291 | 11 |
| 1888–92 | 0.1 | 660.2 | 323 | 17 | ||
| 1893 | 0.1 | 619.2 | 363 | 18 | ||
| 1894 | 0.1 | 607.2 | 375 | 18 | ||
| 1895 | 0.1 | 595.2 | 386 | 19 | ||
60% to 70% of the sentences, then, were deprivation of liberty. What is the effect of this? The answer to this question must be found in the statistics of recidivism. Here are the results for certain countries of Europe, which probably are not much different from those of other countries.
Germany, 1882–1900.[306]
| Years. | Numbers of Recidivists to 100 Convicts. | To 100,000 of the Population over 12 there were Recidivists who were Convicted | |||
| Once. | Twice. | 3 to 5 Times. | 6 Times and Over. | ||
| 1882 | 24.9 | 115 | 56 | 64 | 23 |
| 1883 | 25.8 | 119 | 59 | 69 | 20 |
| 1884 | 26.3 | 127 | 63 | 72 | 22 |
| 1885 | 27.4 | 127 | 63 | 75 | 26 |
| 1886 | 28.0 | 129 | 65 | 79 | 30 |
| 1887 | 28.8 | 131 | 66 | 81 | 34 |
| 1888 | 29.3 | 127 | 65 | 80 | 35 |
| 1889 | 31.2 | 142 | 71 | 87 | 40 |
| 1890 | 32.7 | 150 | 76 | 93 | 43 |
| 1891 | 34.0 | 158 | 79 | 99 | 47 |
| 1892 | 34.7 | 169 | 87 | 107 | 54 |
| 1893 | 35.2 | 171 | 88 | 111 | 57 |
| 1894 | 36.9 | 181 | 93 | 120 | 65 |
| 1895 | 37.9 | 184 | 96 | 124 | 69 |
| 1896 | 38.8 | 183 | 96 | 129 | 75 |
| 1897 | 39.6 | 186 | 99 | 129 | 78 |
| 1898 | 40.1 | 189 | 100 | 133 | 83 |
| 1899 | 40.8 | 187 | 100 | 133 | 85 |
| 1900 | 41.2 | 180 | 96 | 131 | 86 |