第43章 CHAPTER XVIII(1)

ALL punishments or penal remedies for crime, except capital punishment, may be considered from two points of view:

First, as they regard Society; secondly, as they regard the offender.

Where capital punishment is resorted to, the sole end in view is the protection of Society. The malefactor being put to death, there can be no thought of his amendment. And so far as this particular criminal is concerned, Society is henceforth in safety.

But (looking to the individual), as equal security could be obtained by his imprisonment for life, the extreme measure of putting him to death needs justification. This is found in the assumption that death being the severest of all punishments now permissible, no other penalty is so efficacious in preventing the crime or crimes for which it is inflicted. Is the assumption borne out by facts, or by inference?

For facts we naturally turn to statistics. Switzerland abolished capital punishment in 1874; but cases of premeditated murder having largely increased during the next five years, it was restored by Federal legislation in 1879.

Still there is nothing conclusive to be inferred from this fact. We must seek for guidance elsewhere.

Reverting to the above assumption, we must ask: First, Is the death punishment the severest of all evils, and to what extent does the fear of it act as a preventive? Secondly, Is it true that no other punishment would serve as powerfully in preventing murder by intimidation?

Is punishment by death the most dreaded of all evils? 'This assertion,' says Bentham, 'is true with respect to the majority of mankind; it is not true with respect to the greatest criminals.' It is pretty certain that a malefactor steeped in crime, living in extreme want, misery and apprehension, must, if he reflects at all, contemplate a violent end as an imminent possibility. He has no better future before him, and may easily come to look upon death with brutal insensibility and defiance. The indifference exhibited by the garrotted man getting up to adjust his chair is probably common amongst criminals of his type.

Again, take such a crime as that of the Cuban's: the passion which leads to it is the fiercest and most ungovernable which man is subject to. Sexual jealousy also is one of the most frequent causes of murder. So violent is this passion that the victim of it is often quite prepared to sacrifice life rather than forego indulgence, or allow another to supplant him; both men and women will gloat over the murder of a rival, and gladly accept death as its penalty, rather than survive the possession of the desired object by another.

Further, in addition to those who yield to fits of passion, there is a class whose criminal promptings are hereditary: a large number of unfortunates of whom it may almost be said that they were destined to commit crimes. 'It is unhappily a fact,' says Mr. Francis Galton ('Inquiries into Human Faculty'), 'that fairly distinct types of criminals breeding true to their kind have become established.' And he gives extraordinary examples, which fully bear out his affirmation.

We may safely say that, in a very large number of cases, the worst crimes are perpetrated by beings for whom the death penalty has no preventive terrors.

But it is otherwise with the majority. Death itself, apart from punitive aspects, is a greater evil to those for whom life has greater attractions. Besides this, the permanent disgrace of capital punishment, the lasting injury to the criminal's family and to all who are dear to him, must be far more cogent incentives to self-control than the mere fear of ceasing to live.

With the criminal and most degraded class - with those who are actuated by violent passions and hereditary taints, the class by which most murders are committed - the death punishment would seem to be useless as an intimidation or an example.

With the majority it is more than probable that it exercises a strong and beneficial influence. As no mere social distinction can eradicate innate instincts, there must be a large proportion of the majority, the better-to-do, who are both occasionally and habitually subject to criminal propensities, and who shall say how many of these are restrained from the worst of crimes by fear of capital punishment and its consequences?

On these grounds, if they be not fallacious, the retention of capital punishment may be justified.

Secondly. Is the assumption tenable that no other penalty makes so strong an impression or is so pre-eminently exemplary? Bentham thus answers the question: 'It appears to me that the contemplation of perpetual imprisonment, accompanied with hard labour and occasional solitary confinement, would produce a deeper impression on the minds of persons in whom it is more eminently desirable that that impression should be produced than even death itself. . . .