assuming that man is justified in fixing the moral worth of his fellow; that he is justified in punishment for the purpose of making the offender suffer; and that these punishments according to the degree of severity will in some way pay for or make good the criminal act or protect or help society or prevent crime or even help the offender or someone else, what finally is the correct basis of fixing penalties?
no science, experience, or philosophy and very little humanity has ever been considered in fixing punishments. the ordinary penalties are first: fines, which generally penalize someone else more than the victim; these with the poor mean depriving families and friends of sorely needed money, and the direct and indirect consequences are sometimes small and sometimes very great. these can be readily imagined. if instead of fines a prison sentence is given, a sort of decimal system has been worked out by chance or laziness or symmetry of figures; certainly it has been done wholly regardless of science, for there is no chance to apply science when it comes to degrading men and taking away a portion of their lives. generally ten days is the shortest. from this the court goes to twenty, then thirty, then sixty, then three months, then six months, then one year.
why not eleven days? why not twenty-four days? why not forty days? why not seventy days? why not four months or five, or eight or nine or ten months? is there no place between six months in jail and a year in jail? the bids at an auction or the flipping of pennies are exact sciences compared with the relation between crime and punishment and the process of arriving at the right penalty. if in the wisdom of the members of the legislature the crime calls for imprisonment in the penitentiary, then the ordinary sentences run one, two, five, ten, fifteen, twenty, thirty years, and life, according to the hazard of the legislature, the whim of the court, the gamble of the jury, or the feeling and means of expression of the unthinking and pitiless crowd who awe courts and juries with their cries for vengeance.
neither does punishment affect any two alike; the sensitive and proud may suffer more from a day in jail or even from conviction than another would suffer from a year. the various courts and juries of the different states fix different penalties. even in the same state there is no sort of resemblance to the punishments generally given for similar crimes. some jurisdictions, some juries and some courts will make these three or four times as severe as others for the same things. some days the same judge will give a longer sentence than on other days. in this judges are like all of us. we have our days when we feel kindly and sympathetic toward all mankind. we have our days when we mistrust and dislike the world in general and many people in particular. largely the weather influences those feelings. therefore, the amount of time a person spends in prison may depend to a great extent on the condition of the weather at the time of conviction or when sentence is passed. the physical condition of judge or jury, and above all, their types of mind, are all-controlling. no two men have the same imagination: some are harsh and cruel; others kind and sympathetic; one can weigh wheat and corn and butter and sugar; one can measure water and molasses and gasoline. when one measures or weighs, one can speak with exactness regarding the thing involved. justice and mercy and punishment cannot be measured or weighed; in fact there is even no starting point. the impossibility of it all makes many of the humane and wise doubt their right to pass judgment upon their fellow man. society no doubt is bound by self-protection to resist certain acts and to restrain certain men, but it is in no way bound to pass moral judgments.
under any system based on a scientific treatment of crime, men would be taken care of as long as it was necessary to restrain them. it would be done in the best possible way for their own welfare. if they ever were adjudged competent to enter society again, they would be released when that time came. neither under a right understanding, and a humane, scientific and honest administration, would it be necessary that places of confinement should be places of either degradation or misery. in fact the inmate might well be put where he could enjoy life more than he did before he was confined. it might and should be the case also that he could produce enough to amply take care of himself and provide for those who would naturally look to him for support, and perhaps make compensation for the injury he had caused to someone else.
it is obvious that this cannot be done until men have a different point of view toward crime. in the last hundred years much has been done to make prisons better and to make more tolerable the life of the inmates. this has been accomplished by men who looked on criminals as being at least to a certain extent like other men.
above all, as things are now, the prison inmate has no chance to learn to conform unless hope is constantly kept before him. he should be like the convalescing invalid, able from time to time to note his gradual progress in the ability to make the adjustments that are necessary to social beings. no patient in a hospital could be cured if he were constantly told that he could not get well and should not get well. his imagination should be enlarged by every means that science can bring to the teaching of man.
first of all there must be individual treatment. no one would think of putting hundreds or thousands of the ill or insane into a pen, giving them numbers, leaving them so that no capable person knows their names, their histories, their families, their possibilities, their strength or their weaknesses. every intelligent person must know that this would inevitably lead to misery and death. the treatment of men in prison is a much more difficult problem than the care of the physically diseased. it requires a knowledge of biology, of psychology, of hygiene, of teaching and of life; it needs infinite patience and sympathy; it needs thorough acquaintance and constant attention. it is a harder task than the one that confronts the physician in the hospital, because the material is poorer, the make is more defective, and the process of cure or development much slower and not so easily seen.
no person is entirely without the sympathetic, idealistic and altruistic impulses, which after all are the mainsprings of social adaptation. probably these innate feelings can be found in prisoners as generally as in other men. it is the lack of these qualities that often keeps men outside the jail. they "get by" where kindly and impulsive men fail. a large part of the crime, especially of the young, comes from the desire to do something for someone else and from the ease with which persons are led or yield to solicitation.
the criminal has always been met by coldness and hatred that have made him lose his finer feelings, have blunted his sensibilities, and have taught him to regard all others as his enemies and not his friends. the ideal society is one where the individuals move harmoniously in their various orbits without outside control. the governing power of a perfect order in its last analysis must be within the individual. a perfect system probably will never come. men are too imperfect, too weak, too ignorant and too selfish to accomplish it. still, if we wish to go toward perfection, there is no other road.
one of the favorite occupations of legislatures is changing punishments in obedience to the clamor of the public. in times of ordinary tranquility a penalty may even be modified or reduced, but let the newspapers awaken public opinion to crime by the judicious use of headlines and a hot campaign, let the members feel that there is a popular clamor and that votes may be won or lost, and the legislature responds. this is generally done without reference to the experience of the world, without regard to the nature of man, with no thought of the victim, and with no clear conception of how the legislation will really affect the public.
the demand is constantly made that such crimes as kidnapping, train robbing, rape and robbery should be punished with death, or at least with imprisonment for life. irrespective of its effect on the criminal, what is the effect on the victim of the criminal? a man is held up on a lonely highway; the robber does not intend to kill. his face is exposed. if the penalty for robbery is life imprisonment, he kills to avoid detection. if it is death, he kills even before he robs. the same thing operates in rape, in burglary, and in other crimes. in all property crimes not only is no killing intended or wanted, but precautions are taken to guard against killing. all laws to make drastic penalties should really be entitled: "an act to promote murder."
making penalties too drastic destroys the effect meant to be produced. public clamor does not last forever. men grow tired of keeping their tongues wagging on the same subject all the time. a state of frenzy is abnormal and when it subsides the temperature not only goes back to normal, but as far below as it has been above. when the fury has spent itself jurors regain some of their human feeling and refuse to convict. history has proved this over and over again, and still politicians always seek to ride into power on the crest of the wave; when the wave moves back, they can easily go back with it. even if the severe punishments should be continued without abatement, these soon lose their power to terrify. communities grow accustomed to hangings; they get used to life sentences and long imprisonments and the severity no longer serves to awe. the cruelty serves only as a mark of the civilization of the day. some day, perhaps, a wiser and more humane world will marvel at our cruelty and ignorance, as we now marvel at the barbarity of the past.
