Popular Science Monthly/Volume 50/February 1897/Condemnation of Criminals Not Punishment
By EDWARD F. BRUSH, M. D.
WHEN studying a subject closely, we often discover that a simple word influences for right or wrong the whole matter, just as change of a note makes a different tune, or alters entirely the tone of the song. As Roget says: "A misapplied or misapprehended term is sufficient to give rise to fierce and interminable disputes; a misnomer has turned the tide of popular opinion; a verbal sophism has decided a party question; an artful watchword thrown among combustible material has kindled a flame of deadly warfare and changed the destiny of an empire." The word "punishment," as commonly used and understood judicially, should be eliminated from the tribunals that have to deal with that part of society that is known as the criminal class. Some one has said that jurists recognize only two terms in criminal law, "offense" and "punishment." The simplest and earliest definition of punishment is "to afflict with pain," and whenever the word is used it carries with it the idea or notion of consequent suffering. "There is undoubtedly a moral element in words; words are not neutral in the great conflict between good and evil, nor are there wanting, I suppose, in any language words that are the mournful record of the strange wickednesses which the genius of man, so fertile in evil, has invented." To the student of history does not the word punishment bring before the mind the cruel atrocities and horrible inflictions of the middle ages, with their gibbets, chains, racks, hot pincers, thumbscrews, and other hellish devices? It is a strange perversity of the human mind that many, very many words have deteriorated in their meaning; the word retaliation nowadays is never used to express a return of benefits, but always the paying of wrongs by wrongs; animosity, which was originally a very harmless word, is now used only to denote enmity and hate. I can recall no word that has taken the opposite course in our language, and the word punishment has now come by downward evolution from its original use to denote a spirit of vengeance, with its hatred, malice, and retribution, in the degraded sense of that word. Trench truthfully says: "There are often in words, contemplated singly, stores of passion as well as of historic truth; they are living powers, and quite as often and effectually embody facts of history or conviction of the moral common sense as of the imagination or passion of man; even as, so far as that moral sense may be perverted, they will bear witness and keep a record of that perversion." The Pilgrims fled from England to escape the punishment of persecution, and soon they were themselves persecuting with dire punishment those whom they called witches, and also those who disagreed with them. Is it any wonder, therefore, that the Constitution of the United States should be marred by conferring the right to punish? When the truth of the axiom laid down by M. Ferri, in 1889, that "all men are responsible before society, but society has no right to punish, it has only the right to protect itself," is recognized as it surely will be, the instrument on which our liberties are built will not confer this pain-inflicting power, and the distinction between judgment and punishment will be clearly understood. That wise, wrinkled, and homely face of our martyred President masked a soul whose appreciation of the unchristian and debasing effect of public anger and vengeance was expressed when he uttered the immortal words, "Malice toward none, charity for all." To realize how the old ideas of punishment with its remorseless vindictiveness still possess the people, we have only to consider poor, trembling, unfortunate, irresponsible Guiteau, shambling his weary way from the court to the jail, when a human fiend, saturated with the barbarous notions of penalty and the spirit of vengeance inherited from past ages, fired at the helpless, unconvicted prisoner, and the awful echo of public exultation which followed his outrageous attempt. But this whole painful episode simply indicated a bitter spirit that will continue to dominate the people as long as the notion prevails that our courts of justice are to mete out retribution. Abolish the notion that society has the right to inflict pain, then the voice of the people calling for execution will be hushed. Eliminate from our courts the spirit of vengeance, and from the dire and sad necessity of taking human life remove the idea of punishment, implore God's pity alike on the executor and the executed, and human society will be kinder, better, and safer. When the idea of punishment is abolished, then the emotional attitude toward the criminal will disappear. None of the other dreadful, morbid conditions exhibited in the human being appear to elicit the kind of feeling we see very often demonstrated toward the very lowest murderer. When our courts of justice recognize that their functions are not to avenge, but to cure society of its diseased members, and that the treatment must be scientific, effectual, and humane, then the sentiments exhibited toward the criminal will be the same that we display toward the person afflicted with smallpox, typhoid fever, and the like. As organized society we have the right to protect ourselves both against the unfortunate criminal and the unfortunate person afflicted with a contagious disease, but this right should not be deemed the right to punish; no matter how grievous the methods we may adopt to prevent crime or other evils, we ought not to regard them in that light. It is very difficult to eliminate from the injured individual a feeling of anger and a desire for revenge, but our organized courts of justice should not by any word even appear to entertain or to strengthen such motives.
In the amputation of any portion of the body on account of gangrene or other morbid condition, there is no idea of punishment. The surgeons who are assembled in consultation to decide upon the treatment of the diseased member do not consider whether the morbid state is the result of transgression, but the simple question for them to decide is, "Will the other parts of the body be better if the diseased portion is removed?" All men of a scientific turn of mind who have made a study of criminal anthropology are fast approaching the physician's position regarding such questions. Every criminal is more or less a diseased portion of the body politic: some can be saved, some must be removed, and some must be destroyed, but the notion of punishment should not complicate the judgment in deciding what disposition is to be made in either case. The insane were formerly regarded with feelings of hatred and vindictiveness, but to-day this is only a shameful recollection. With the advance in the study of criminology and the more merciful era of humanitarianism that must follow, the like sentiments toward the criminal will be eliminated from our courts of justice. Prof. Austin Flint, the distinguished President of the New York State Medical Association, in his annual address to the association said, "Scientific progress will lead us finally to abandon the ancient idea of punishment of crime and substitute for it treatment and correction." Quetelet writes, "Every society has the criminals that it deserves."
There are very few persons who are not possessed by an intense desire to kill when they are suddenly confronted by a snake. Most of us have a hereditary prejudice against snakes, and can hardly talk about them without a shudder. Somewhat the same spirit possesses us when we hear of a murder: we are at once seized with a vengeful desire to hear of the murderer's capture and execution; but, as when, like reasonable human beings, we study the snake family, we find that there are differences among them, and some have qualities in consideration of which they might be spared, so with murderers—they are not all the same. The Hannigan trial is fresh in our memories; the motive that caused this man to commit a crime was the result of the very conditions which constitute our normal society; it was the deep sense of injured chastity, violated vows, a ruined life, broken home ties; this was made plain; the public demanded his release. Under the intense feeling engendered in society as to whether this man was to be punished or not punished, the fact was lost to sight that he had disobeyed our social rules in not waiting for the courts to deal with the criminal whose life he took.
There are, roughly speaking, three elements in human society. The largest is always the standard, and is modified in character according to the conditions of the times. Of the two other elements that do not harmonize with this, the first is what is known as the criminal class. This is sometimes made up of a comparatively large number of individuals, and is in reality composed of members of the human race who are lagging behind in the advanced march of civilization. The other conflicting element is comparatively meager in numbers, and is characterized by its members being always in advance of the main body. They are variously called reformers, cranks, or heretics. Many of these two less numerous groups are often brought up to answer for their acts, and the ultimate aim of all judicial processes concerning them should be to make them members of the larger body. Where this is unattainable, the incorrigible should be either destroyed or removed permanently from the society with which they are in conflict. The whole history of criminology up to date indicates positively that punishment does not reclaim, and we must banish from criminal law all idea of vengeance as involved in the term. When we look at it as an isolated fact, the position of a judge trying to impose the exact punishment to fit the crime and weighing what he is pleased to call mitigating circumstances, in order to lessen the measure of wrath prescribed for some unfortunates who often as much need treatment as some of our insane, we must at once be conscious that there is something wrong in our judicial system. This idea has been deemed sufficiently ludicrous to form one of the telling points in a comic opera.
One of the principal elements impelling the criminal to crime is his desire to punish his enemy, for it can not be denied that a large number of murders are committed from this motive. Should the law that we term majestic proceed with the same motive toward the criminal? It will always appear to be so while we continue to speak of it in the language now used. If the spirit of anger and revenge could be entirely eliminated from the death penalty, and every idea of punishment meted out to an individual was removed from the judgment, only the absolute safety of society being made the reason for taking the human life judicially, executions would become exceedingly rare. It must be plain that the question for us to decide to-day is, Are we, who belong to the predominating class of society, bettered by our acts toward those who are not in harmony with the methods and motives that have made society what it is, and keep it in the position it now occupies; or are we debasing ourselves by our method of dealing out punishment, as such, and thus keeping alive the spirit of vengeance?
What a ghastly, ludicrous state of affairs it must be, to see the murderer condemned to die, and awaiting in his cell the arrival of the fatal day, assured by his spiritual advisers that he has been pardoned by his Maker, and that the gentle Saviour is waiting to receive him in eternity, and still not have a ray of hope that the measure of the penalty, judicially pronounced, will be diminished! It would seem reasonable that a man who has been pardoned by his Creator should be pardoned by his fellows, and he surely should be if punishment was the only design. If, however, competent men have decided that his life is a menace to human society, then the questions of punishment and forgiveness are not to be considered. Even the great physician, Galen, seventeen hundred years ago wrote, "The evildoer is one whom we must destroy, not punish," repeating very nearly the words of Aristotle that when a criminal is a criminal by nature he ought to be destroyed, not in revenge, but for the same reason that scorpions and vipers are destroyed. Seneca advocated the same axiom. Let us, therefore, eliminate from our laws, which are or ought to be of benefit to humanity, all idea or notion of punishment; for, while our codes continue to present it, the whole aim and object of our common law, as it relates to the criminal, can not but point to the single fact of an effort to inflict pain on a human being. We try a man in order to ascertain if he must be punished, and the other higher, broader, and more noble function of the court, namely, to protect the majority of law-abiding citizens, is lost sight of by the larger proportion of the human race. The simple term justice or condemnation will convey the idea that the good of society is the consideration of the court, while the term punishment conveys the idea that the individual alone is the factor, and we can not blame the criminal, as long as it remains on our statute-books, for imagining that the whole force of our courts is to cause him bodily pain.
While studying the songs of birds, Mr. Charles A. Witchell soon found that young birds acquire first the call cries and alarm notes of their respective species; that in each species these notes are much less liable to vary than are the songs; and that in different species physically allied they are more alike than are the songs of those species. Another interesting feature was the prominent occurrence of a particular cry in the species; its repetition in a less marked form in one or two allied birds, in which another cry might be the most pronounced; and the utterance of this second cry by some other allied birds, which had not the first-mentioned note. These facts are commended by the author to naturalists as bearing on the question of a common ancestry of species.