Legal Punishment for Crime.

Marlborough Express, Volume XXXVI, Issue 74, 29 March 1902, Page 1 (Supplement)

Legal Punishment for Crime.

(By W. K. Haselclen, S.M., in New Zealand Times.)

The primary object of human punishment by iaw for crime is the protection of society. From the beginning of things mankind has punished its members for breaches of the rules it has made for its own protection. Before prieous were existent, death, mutilation, torture or slavery were the chief punishments inflicted ; acd anlong many savage and some semicivilised peoples these'punishments are still the only ones resorted to. As we progress iv civilisation, we seek to find punishment proportioned to the gravity of the offence committed. Among ourselves the punishment of death is rarely inflicted, and then oniy for murder and high treason ; fines are imposed for a few minor offences, and the bulk of tbe prisoners are sent to penul servitude in our prisons. Imprisonment with hard labour is tbe recognised method of awarding punishment for crime. That the method is a thoroughly satisfied one few people believe ; and it's different aspeds are what I propose for discussion in this article. A perfect pi nal system, combining punishment, example and reformation is what is aimed at; but though we may have progressed, we are still very far short of attaintment. At tbe beginning of the last century there were over a, hundred offences for which offenders might be, and were at times, hanged ; the prisons were dreadful dens of infamy, starvation and disease. Crime was rampant, the punishments were cruel, but detection was very uncertain, and the highway robber or thief might calculate on a fairly long run before the law put an end-to him. Then followed the year in which trans portation was tried; and that method, though not a complete failure in ifc-s-lf, became impossible from the refusal of the Australian colonies to allow convicts to be sent to thorn. Then came the era of tbe model prison, tbe separate, the silence system, and what may be termed the industrial system, combined with humane treatment. Each and all of these have failed to solve the problem satisfactorily, and there is still ample material for philosophers to theorise upon, and for practical men to regret and endeavour to remedy.

The human animal presents probably more difference mentally than it does physically, yet both mentally and physically it can be grouped into more or le3S distinct types. Tbe prison population has been scrutinised and examined by painstaking inquirers, with a view of differentiating between them and the unconvicted, and between the various types they present. The result has been that as between the convicted and the unconvicted the difference is only a question of degree. The same pas-f-ions and weaknesses which have brought the convicted offender to the prison are existent among the out v/ardly respectable, but in either a lesser degree or are under firmer control. We are still a long way off the point of knowledge which would enable us to fix the proportion of responsibility for criminal acts to heredity, to environment, to individual will. We a.re landed at once in a maze of speculation utterly without confine if we attempt to treat the criminal in accordance with what we may conceive is bis personal responsibility for being what he is. Every human being is the accident of a million accidents, his pedigree is accidental, and at birth be is the result of countless crosses of temperament and physique. The most carefully educated child may be exposed to some subtle evil influence, to which his after acts may be more -or less doubfully traced. As he grows to maturity, temptations stronger than those offering to others may come in his way. subtle forms of brain disease may affect his judgment aud will power, and a hundred other causes may conspire to make him either a good citizen or a worthless wretch. Into these realms of speculative philosophy, with their boundless expanse of inquiry into all things human, natural and divine, the practical administrator of the law does not presume to wing his flight. He may with others have ventured to survey them, and io apply such things as are possible to bis practical work ; but for aelminiskrative work he must be content with an altogether lower plane. Becauso there is no other way of treating them, he adheres to the rule that before the law all men are equal, the rich and the poor, the gentle and the simple, tbe fool and the scholar, the ruffian and the epicure. For any effeuce not capital, and not fitly punishable by a mere monetary penalty, to prison for a greater or la?ee:r trrm must the offender go; and no difference in station or quality is recognisable as a reason for measuring tho length of the term of imprisonment.

Yet it is manifest that iho. punishment- of penal servitude is infinitely greater in the case of one who has lived a life of refinement than in Ilia case of one who has known no luxury and whose mental power is dull. Especially ig this the case in the first year of imprisonment, for naturo nfterwards asserts her power of confirming to outward conditions, and tbe convict who has been a gentleman k< quently appears after a year qe so

to be in no worse case than the convict who has never risen above the lowliest lot. While the administrators of punishment opeoly confess that tbe imprisonment of a convict is a most imperfect way of (killing out punishment, and that it does not satisfy the mo?t elementary essentials of punishment, theorists are demanding that such a system of imprisonment should be devised as would combine vindication, reformation, example aod preventation. It is so easy to attack existing things and inform the world what ought to be and what ought, no to be done. It 13 as easy to critiaa tbe penal system as it is the generalship in our aimy. Our penal system no doubt ought to be able to change a confirmed ruffian in to a geutle Christian, aud at the rame time to so terrorise ofchers in the process that, to escape the ehaaee of beirg similarly transformed, the criminal class will forsake their ways and turn to righteousness. That it dees not do this, according to the theorists, is palpable proof of the incompelency of those who make and administer it. This latter statement is true, but then we are all iocom petent; even a newspaper editor is incompetent to persuade all men of tbe correctness of bis views ; the clergy are incompetent to attain much success in their war with evil, and ineompetertcy is only another name for human imperfection. Let us, therefore, face the plain fact that human punishment for crime is a ' poor but necessary thing; it will not do much towards converting a crimiI nal into an honest man, and frequently teuds to convert a temporarily dishonest person into a confirmed criminal. Prison education, moral instruction and physical training are not likely to successfully compete with free institutions io the manufacture of clean-iiving, rations! mt>t and women. The vilest deeds, like poisoa tvoeds, Bloom well in prison air; It is only what is good in. man That waates aud withers there. The prison is not a place where rofor mation can b& brought about by any direct means. The convict who wrote " The Ballad on Reading Gaol" spoke of tbe " human hearts that break in prison cells" and of " the eniry of Christ therein" ; but our object is to avoid breaking men's hearts in gaol, and we do not propose to bring about the cleansing of the convict's soul by breaking his heart of stone. If we look at she prison population we shall be able to separate them into two chief divisions— (1) Offenders against the person, murderers, assaulters, sexual offenders ; (2) offenders against property, thieves, cheats, forgers. Outside these divisions there are but few convicts; but the most important of all distinctions in all convicts is whether they have been previously convicted of crime. The first offender is comparatively an innocent man, and if he undergo the ignominy of a commital, a public trial and conviction, and,.an admission to probation, he probably suffers a greater punishment than he who, being a second time convicted, receives a long sentence of imprisonment. The first offender probably has some situation which affords him a livelihood, and a home and habits whigh he has come to feel are necessary to him. All these are in some degree lost to him on detection of bis offence, and be suffers accordingly. If ho is sentenced to imprisonment, the first months of his incarceration are probably an agony to him ; mentally and physically he suffers, until bis mental faculties are dulled and his physical organisation has conformed to hi 3 surroundings. A second imprisonment does not affect him in anything like the same degree; he kubwa when he enters the prison for a second time what he has to expect, and the best means of making matters as easy as possible ; he knows the uselessness of regret or remorse, and accepts the situation with some ! thiug akin to fortitude. And here we may ask the great test question on the subject of such punishment, " Cvi bono ?" Who is the better for this man's imprisonment ? And we will try to fitad the answer or answers to it. When a member of human society sets at defiance the rules human society has msde for its own protection punishment follows, in order that tbe rule shall be respected. Human justice does not set up a divine standard of rewards aud punishments. There is no " lex talionis" in our code. It does not assert a debt which , must be paid by someone ; it knows no vicarious punishment; it cares nothing about vindication orators ment. Human society says a man shall not steal, and if a man steal in defiance of this law be cannot make j atonement by offering some other person for punishment. The theory of man's redemption from sin by the tragedy of Calvary has no counterpart in human administration of criminal law. The formula of theologians that man sinned, but Christ died, and justice was therefore satisfied, is not applicable to our criminal code. The detected and convicted criminal must suffer punishment in* his own person ; and though doubtless others also suffer through him, no account is taken of this. The object or benefit derived from such 1 punishment is twofold ; first, in preventing the criminal from repeating bis offence for sometime; and,

second, in deterring all men, includ ing the criminal, fivmi resorting (o crime. If a free man should ever find himself so near the brink of dis honesty as to calculate the chances of detection and the severity of the punishment, he should pay a visit to one of tbe prisons, and remain long enough to undergo the routine, the f ood,the labour and the companionship of the place ; and if he then d« cide to run the risk, the spirit of evil must have overcome the good in tbat niau'g nature long before. The first offender is not, however, often a man who has considered asd weighed the chances. He i 3 more often a man who has slid into dhhonesfcy without criminal intention, and in order to prevent detection) for a while has continued to act dishonestly. It is only siac* 189-4 that very much difference has feeen made in suob cases and thaeeof professional criminal?. Now the first offender is generally admitted t» probation, and the result has proved the wisdom of snch clc-mency. In tha case of tbe professional criminal the term of imprisonment is increased in pfepertion to the number of previous convictions, but in Bucb cases still longer fccrrns might ba imposed with justice. When a man showa no sign of reformation, but reverts to thieving the day after he comes out of prison, a short sentence is only trifling with the man, and placing the reai is3ue between such a man and society on an entirely false ground. The man says: "I will not work, but I will steal when I can. I defy society, and care not for its punishments." Is it unfair for society to say : " Very well, after you have satisfied our administrators that you are a confirmed criminal, we shall lock you up for the rest ofjour life, or at all events until you are so old that probably your habits and abilities will have radically altered"? This is no new idea. Long terms of transportation, with qualified freedom to those who behaved well, long terms of penal servitude with tickets of teave, aad in our colony a liberal remission of sentences for good conduct have all been tried, and the last-named is now ia general practice.

The conclusion to which we are forced, after an examination of most of what has been written on the subject, and the evidence available in New Zealand of practical experience, is that the world is too young or too ignorant to successfully attempt to differentiate between the dispositions of it 3 criminal individuals. Prison life must press more severely upon some than upon others owing to individual difference, and such differ' ences are greater than Can be noted in the the conditions which affect people outside prisons, but are not, perhaps, much greater than in some public schools, in which a sensitive child will suffer torment under coaditions which would afford great joy to the average British schoolboy. Uniformity of treatment of prisoners must therefore continue, and their lot must not be made too easy nor yet unbearable. The prison tmist still be a place to be dreaded by all men, but it must not be a place of starvation or torture. The solitary system has been tried and broken down ; indeed, far too long a time was taken in demonstrating that the human brain cannot sustain such solitude, and that madness is an almost necessary result; but qualified seclusion is practised with good results. There is no longer the meeting of a number of prisoners at meals, nor tbe opportunity of old hands io deprave tbe younger men. Our gaols are too small to absolutely divide the prisoners into classified groups, but as much as is possible is done to prevent young prisoners associating with confirmed criminate, and though the lot of the prisoner is hard, it is not unendurable.

The sentence of imprisonment with hard labour, however, is frequently passed upon men and women who are not criminals at all, and it is not passed as a punishment, but as the only means of keeping these poor creatures from starvation. They are people who have no means of support, being too feeble to labour either with hands or head, prone to drink in many cases, but often not what are recognised as drunkards, there is no place but the gaol for them. There are charitable homes for tbe aged needy, but the people I speak of do not reach the standard required for such institutions, nor do I think it possible to keep them in these places. Of course, in these cases there is no question of punishment, reformation, deterrent, or anything else except that of preventing them from dying in the street. They turn a part of the prison "into a semi-infirmity, semi-workhouse ; they make the task of general administration and discipline somewhat harder for the gaol officials ; but on the whole no great harm ensues, though a time must come when their numbers will so increase that a separate place must be provided for them.

There is one exception to the rule that torture is not intentionally inflicted by law. For assaults on women and children the punishment of flogging is sometimes inflicted. No settled principles appear to guide the Courts as to the infliction of this additional punishment. It ia difficult to understand why it ia not iafli«ted in some eases, if it is jugfc to inflieb it in others. Borne Judges are very neluQtaufc to impose it, while others

do so freely. That it is an appropriate and effective punishment for this class of criminals few experienced people will deny ; but the practice of repeating the floggings at certain long intervals savours of needless cruelty. The punishment is inflicted fco terrify others who might be inclined to sucb crimes ; it is not inflicted to gratify any feeling of revenge. No public intimation is given of the time of infliction, and the Press are not permitted to witness it. Borne of those who have seen the results of twentyfive lashes as now inflicted, and the collapse of the prisoner under tbe dread of a repetition of the torture, are of opinion that repeated flogging should not be ordered. As a matter of fast, in most instances it has been found necessary to remit the subseqaeat floggings in order to save the culprit's reason. Flogging is a horrible and cruel punishment, and is only inflicted on horrible and cruel men. Unfortunately, it appears necessary still to retain it. It is no doubt a good thing that the question of criminal punishment should not escape the attention of thoughtful people. No matter how good a system may be devised, abuses are always liable to creep in, and in a matte? which is confessedly imperfect and to a large extent unsatisfactory, vigilance on the part of the public and its representatives is the more nedesary.