§4. Let us now pass from the consideration of Damages to that of Punishment in the narrower sense. In selecting the kind of punishment, the first point to notice is, that though punishment mainly prevents wrong by deterring---and this is its sole preventive operation so far as it acts on others than the person punished---still, so far as the criminal is concerned, there are two other modes of prevention of which we must not lose sight: viz. Reformation and Disablement. It is therefore desirable, so far as possible, that the kind of punishment should be selected with a view to these important though subordinate ends.
Reformation is especially to be aimed at in the case of juvenile offenders, disablement in the case of offences committed by influential persons in transient crises of civil strife. For both these ends imprisonment is the obvious means; for the former, imprisonment with labour, care being taken not to render the labour needlessly repulsive, and to allow industry to obtain its natural reward.
It is a difficult matter to determine satisfactorily the right degree of punishment for any given offence. It is easy to say, with Bentham, that it ought to be sufficient to deter, and not more than sufficient. But our general knowledge of the variations in human circumstances and impulses would suggest---what experience amply confirms---that no punishment whatever can be relied on to be adequately deterrent in all cases. Murder and manslaughter, burglary and larceny, have continued to harass society through all changes in the allotment of punishment; and no change is likely to put an end to them. Now, impulsive crimes we cannot hope to prevent by any intensification of punishment until human nature is fundamentally altered: but crimes planned in cold blood are matters of calculation, and it does not seem impossible that it should be made unmistakably a man's interest, on a cool calculation of chances, not to commit a crime. Since, however, the attainment of this result depends not only on the amount of punishment, but also on the chances that the criminal (1) will be caught, and (2) will be condemned if caught, it may easily happen that in a community where the police is ill organized, and the judges liable to be corrupt or inefficient, the required adjustment of interests cannot be effected: the uncertain chance of the maximum punishment which humanity admits may not be enough to outweigh the prospective profit of the crime. For the same reason, in societies where similar governmental defects exist in a less degree, an increase in the efficiency of police and judicature will often enable intensity of punishment to be reduced without increasing crime.
The difficulty of adjusting amount of punishment to gravity of offence, in a manner adapted to meet all variations in human nature and its circumstances, affords a strong argument for increasing heavily the severity of punishment at each repetition of any kind of deliberate crime: since the fact that a man, after suffering the punishment of an offence committed in cold blood, proceeds to commit another offence of the same kind, is tolerably conclusive evidence that in his particular case the punishment already inflicted was not sufficiently deterrent.
There are several other considerations that ought to be taken into account, in the selection and graduation of punishments: of these the following appear to be the most important:
1. To realise the principle of justice that similar cases should be treated similarly, it is important that punishment should be equable; i.e. that a punishment of a certain denomination---say imprisonment---should not mean different things in different cases. This is an argument (e.g.) for central rather than local management of prisons: for watchfulness as to effects on health, etc.
It is to be observed, however, that this principle is almost impossible to realise in dealing with offenders drawn from different classes in the community. We cannot, even by proportioning the sum imposed to the offender's income, so far as we can ascertain it, prevent punishment by fine from being practically less severe to the rich than to the poor; and it is still more clear that we cannot prevent imprisonment with labour from being more severe to the former. This being so, it seems, on the whole, best---where some inequality cannot be avoided---that the rich should suffer somewhat more than the poor; as crime maybe presumed to be generally more culpable in persons more highly educated, and shielded by their wealth from the severe temptations incident to poverty.
2. Avoidance of excess in punishment is important, not only in order to inflict no more pain than is needed---which, of course, is to be aimed at from a utilitarian point of view---but even more in order that different degrees of punishment may all be adequately deterrent, where the criminal has choice of alternatives of crimes, differing in degree of mischievousness. It is of fundamental importance that a man should always have adequate motive to refrain from committing each successive part of any possible complex offence; or a greater offence, instead of a lesser. Punishment, therefore, should be so chosen that clearly greater punishments may be allotted to more mischievous crimes.
This is one argument for attaching capital punishment to murder alone: so that (e.g.) the thief or burglar may have an adequate inducement not to commit murder even when it would give him an additional chance of getting off.
3. From a utilitarian point of view, it is plain that, supposing the preventive effect of punishment undiminished, the less pain it actually gives to a criminal the better. Hence, it is an advantage that punishment should be, so far as possible, what Bentham calls ``exemplary'', i.e. greater in appearance than in reality, since it is chiefly appearance that deters. And, of course, punishments of the opposite kind, really worse than they seem, should be carefully avoided.
But in seeking to make punishments ``exemplary'', care should be taken to prevent them from being offensive to popular feeling, and so likely to arouse aversion to the administration of the law, and dangerous sympathy with the criminal punished. Moreover, the infliction of even transient pain beyond a certain degree of severity I would be opposed to a sentiment of humanity, which it is not merely politically dangerous to offend, but important to the wellbeing of society to maintain and develop.
4. Punishment should, other things being equal, be as little burdensome as possible to the community: e.g. if useful labour is adequately deterrent its utility is so much gain: and, similarly, if the penalty suffered by the wrongdoer is at the same time compensatory to persons wronged. Indeed, as we have seen, so far as compensation can be adequate, the enforcement of it may be sufficiently preventive of the offence.
5. Finally, taking mistakes into account, it is well that punishment should be remissible if possible. This is, of course, an objection to capital punishment---though not, in my opinion, a decisive one; also to the infliction of lesser bodily injuries of an irreparable kind, such as maiming.[Back to:] [Elempol, Chapter 8, Section 3]