The Rationale of Punishment

Book I

General Principles

Chapter V

Expense of Punishment

Expense of Punishment.—This expression, which has not yet been introduced into common use, may at first sight be accused of singularity and pedantry. It has however been chosen upon reflection as the only one which conveys the desired idea, without conveying at the same time an anticipated judgment of approbation or disapprobation. The pain produced by punishments, is as it were a capital hazarded in expectation of profit. This profit is the prevention of crimes. In this operation everything ought to be taken into the calculation of profit and loss; and when we estimate the profit, we must subtract the loss; from which it evidently results that the diminution of the expense, or the increase of the profit, equally tend to the production of a favourable balance.

The term expense once admitted naturally introduces that of economy or frugality. The mildness or the rigour of punishments is commonly spoken of: these terms include a prejudice in the one case of favour, in the other of disfavour, which prevents impartiality in their examination. But to say that a punishment is economic, is to use the language of reason and calculation.

We should say then that a punishment is economic, when the desired effect is produced by the employment of the least possible suffering. We should say that is too expensive, when it produces more evil than good; or when it is possible to obtain the same good by means of a less punishment.

In this place distinction should be made between the real and the apparent value of a punishment.

By the real value, I mean that which it would be found to have by one who, like the legislator, is in a condition accurately to trace and coolly to estimate it through all its parts, exempt from the delusions which are seen to govern the uninformed and unthinking part of mankind; knowing, beforehand, upon general principles, what the delinquent will know afterwards by particular experience.

By the apparent value of a punishments I mean that which it appears to a delinquent to have at any time previous to that in which he comes to experience it; or to a person under temptation to become a delinquent previous to the time at which, were he to become so, he would experience it.

The real value of the punishment constitutes the expense. The apparent value influences the conduct of individuals. It is the real punishment that is the expense—the apparent punishment that gives the profit.

The profit of punishments has reference to the interests of two parties—the public, and the party injured. The expense of the punishment adds to this number a third interest, that of the delinquent.

It ought not to be forgotten, although it has been too frequently forgotten, that the delinquent is a member of the community, as well as any other individual—as well as the party injured himself; and that there is just as much reason for consulting his interest as that of any other. His welfare is proportionably the welfare of the community—his suffering the suffering of the community. It may be right that the interest of the delinquent should in part be sacrificed to that of the rest of the community; but it never can be right that it should be totally disregarded. It may be prudent to hazard a great punishment for the chance of obtaining a great good: it would be absurd to hazard the same punishment where the chance is much weaker, and the advantage much less. Such are the principles which direct men in their private speculations. Why should they not guide the legislator?

Ought any real punishments to be inflicted? Most certainly. Why ? For the sake of producing the appearance of it. Upon the principle of utility, except as to so much as is necessary for reformation and compensation, for this reason, and for no other whatever. Every particle of real punishment that is produced more than what is necessary for the production of the requisite quantity of apparent punishment, is just so much misery run to waste. Hence the real punishment ought to be as small and the apparent punishment as great as possible. If hanging a man in effigy, would produce the same salutary impression of terror upon the minds of the people, it would be folly or cruelty ever to hang a man in person.

If delinquents were constantly punished for their offenses, and nobody else knew of it, it is evident that, excepting the inconsiderable benefit which might result in the way of disablement, or reformation, there would be a great deal of mischief done, and not the least particle of good. The real punishment would be as great as ever, and the apparent would be nothing. The punishment would befall every offender as an unforeseen evil. It would never have been present to his mind to deter him from the commission of crime. It would serve as an example to no one.

Delinquents may happen to know nothing of the punishment provided for them in either of two cases.—1. When it is inflicted without having been previously made known.—2. When, though promulgated, it has not been made known to the individual. The latter of these cases may be the case where the punishment is appointed by statute—or as it is called, written law. The former must happen in all new cases where the punishment is appointed in the way of common or unwritten law.

The punishment appointed by the law may be presented to the mind in two ways:—1. By its legal denunciation and description:—2. By its public execution, when it is inflicted with suitable notoriety.

The notion entertained of a punishment ought to be exact, or, as the logicians would say, adequate; that is, it should present to the mind not only a part, but the whole of the sufferings it includes. The denunciation of a punishment ought therefore to include all the items of which it is composed, since that which is not known cannot operate as a motive.

Hence we may deduce three important maxims:—

  1. That a punishment that is more easily learnt, is better than one that is less easily learnt.
  2. That a punishment that is more easily remembered, is better than one that is less easily remembered.
  3. That a punishment that appears of greater magnitude in comparison of what it really is, is better than one that appears of less magnitude.

[RP, Book I, Chapter IV] [RP, Book I, Chapter VI]