The ends of criminal justice are four in number, and in respect of the purposes so served by it, punishment may be distinguished as:
Of these aspects the first is the essential and all-important one, the others being merely accessory.
Punishment is before all things deterrent, and the chief end of the law of crime is to make the evildoer an example and a warning to all that are like-minded with him. Offences are committed by reason of a conflict between the interests, real or apparent, of the wrongdoer and those of society at large. Punishment prevents offences by destroying this conflict of interests to which they owe their origin; by making all deeds which are injurious to others injurious also to the doers of them; by making every offence, in the words of Locke, “ an ill bargain to the offender. ” Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of the doer of it. The purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things.
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.
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 brutalising 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 soon 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 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.
We have considered criminal justice in three of its aspects namely, as deterrent, disabling, and reformative; and we have now to deal with it under its fourth and last aspect as retributive. Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion or retributive indignation which in all healthy communities is stirred up by injustice. It gratifies the instinct of revenge or retaliation, which exists, not merely in the individual wronged, but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are still extant in human nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction. For although in their lawless and unregulated exercise and expression they are full of evil, there is in them none the less an element of good. The emotion of retributive indignation, both in its self-regarding and its sympathetic forms, is even yet the mainspring of the criminal law. It is to the fact that the punishment of the wrongdoer is at the same time the vengeance of the wronged, that the administration of justice owes a great part of its strength and effectiveness. Did we punish criminals merely from an intellectual appreciation of the expediency of so doing, and not because their crimes arouse in us the emotion of anger and the instinct of retribution, the criminal law would be but a feeble instrument. Indignation against injustice is, moreover, one of the chief constituents of the moral sense of the community, and positive morality is no less dependent on it than is the law itself. It is good, therefore, that such instincts and emotions should be encouraged and strengthened by their satisfaction, and in civilised societies this satisfaction is possible in any adequate degree only through the criminal justice of the state. There can be little question that at the present day the sentiment of retributive indignation is deficient rather than excessive, and requires stimulation rather than restraint. Unquestionable as have been the benefits of that growth of altruistic sentiment which characterises modern society, it cannot be denied that in some respects it has taken a perverted course and has interfered unduly with the sterner virtues We have too much forgotten that the mental attitude which best becomes us, when fitting justice is done upon the evildoer, is not pity, but solemn exultation.
The foregoing explanation of retributive punishment as essentially an instrument of vindictive satisfaction is by no means that which receives universal acceptance. It is a very widely held opinion that retribution is in itself, apart altogether from any deterrent or reformative influences exercised by it, a right and reasonable thing, and the just reward of iniquity. According to this view, it is right and proper, without regard to ulterior consequences, that evil should be returned for evil, and that as a man deals with others so should he himself be dealt with. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment as so regarded is no longer a mere instrument for the attainment of the public welfare, but has become an end in itself. The purpose of vindictive satisfaction has been eliminated without any substitute having been provided. Those who accept this view commonly advance retribution to the first place among the various aspects of punishment, the others being relegated to subordinate positions.
This conception of retributive justice still retains a prominent place in popular thought. It flourishes also in the writings of theologians and of those imbued with theological modes of thought, and even among the philosophers it does not lack advocates. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake of any benefit to be derived from it either by the criminal himself or by society, and that the sole and sufficient reason and justification of it lies in the fact that evil has been done by him who suffers it. Consistently with this view, he derives the measure of punishment, not from any elaborate considerations as to the amount needed for the repression of crime, but from the simple principle of the lex talionis “ Thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot. ” No such principle, indeed, is capable of literal interpretation; but subject to metaphorical and symbolical applications it is in Kant’s view the guiding rule of the ideal scheme of criminal justice.
It is scarcely needful to observe that, from the utilitarian point of view hitherto taken up by us, such a conception retributive punishment is totally inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. The opposite opinion may be regarded as a product of the incomplete transmutation of the conception of revenge into that of punishment. It results from a failure to appreciate the rational basis of the instinct of retribution; a failure to refer the emotion of retributive indignation to the true source of its rational justification; so that retaliation is deemed an end in itself, and is regarded as the essential element in the conception of penal justice.
A more definite form of the idea of purely retributive punishment is that of expiation. In this view, crime is done away with, cancelled, blotted out, or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence. “ The wrong ,” it has been said, “ whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated. This is the first object of punishment to make satisfaction to outraged law ” . This conception, like the preceding, marks a stage in the transformation of revenge into criminal justice. Until this transformation is complete, the remedy of punishment is more or less assimilated to that of redress Revenge is the right of the injured person. The penalty of wrongdoing is a debt which the offender owes to his victim, and when the punishment has been endured the debt is paid, the liability is extinguished, innocence is substituted for guilt, and the vinculum juris forged by crime is dissolved. The object of true redress is to restore the position demanded by the rule of right, to substitute justice for injustice, to compel the wrongdoer to restore to the injured person that which is his own. A like purpose is assigned to punishment, so long as it is imperfectly differentiated from that retributive, vengeance which is in some sort a reparation for wrongdoing. The fact that in the expiatory theory satisfaction is conceived as due rather to the outraged majesty of the law, than to the victim of the offence, merely marks a further stage in the refinement and purification of the primitive conception.