Chapter IX: The Ideal and the Way of Its Attainment (3)

Modern opinion is becoming dissatisfied with the old methods of dealing with criminals--with the methods which continually return the criminal to society not bettered by incarceration, and ready to commit all manner of crimes again. Both the protection of society and the welfare of the criminal would be better served by a course of discipline that should only then give him back to society when he is fitted to live in harmony with it and to enjoy the advantages conferred by such harmony. Recent experiments in reformatories have demonstrated the immense advantage of methods which attempt something like this. Among the improved reformatories for children, many of them without walls, bolts, or bars, some have sent out cured from eighty to eighty-five per cent of the offenders committed to them. The Elmira reformatory deals especially with offenders sentenced for their first state's prison offence, and its method is at once eminently humane and remarkably successful. Offenders may be sent to it at the discretion of the judges. It contains three grades. Members of the first of these wear better clothing, eat better food, enjoy various special privileges, and are used, to some extent, as officers and monitors for the other grades. Members of the second grade are less well provided for and honored than those of the first; and members of the third grade are worst clothed and fed, and have the fewest privileges. Every man who enters the prison is submitted to a minute examination as to his antecedents, his mental, moral, and physical condition and capabilities. He is then placed in the second grade, from which he may go up or down, according to his work and conduct. Eight hours' work a day are required, and compulsory school is held in the evening, at which the common English branches are taught, and elementary instruction given in Law, Political Economy, Ethics, etc. Discussion and thought on the subjects taught are encouraged, and everything possible is done to awaken interest. "Perfect" work and conduct for six months--the standard of "perfection" is high--and a mark of 75 in a scale of 100 in the school secure a man advance into the next higher grade; and the same standard maintained for six months in the highest grade entitle a man to release on parole; so that the term of imprisonment need not exceed a year. The man must be willing, industrious, good-tempered, obedient, energetic, who gets release in this time. Work is found for every man released; he is closely watched for six months more, and if his conduct does not keep up the standard required, he is returned to the reformatory and must begin over again; if, on the other hand, his conduct and work, an attested report of which must be handed in each month, is satisfactory for these six months, he is honorably discharged. The obdurate malefactors serve out their full sentence, as they would in state's prison. Of those who go out from the institution, eighty per cent return to society reformed; and the superintendent is of the opinion that this percentage could still be raised were the time of detention made indeterminate and wholly dependent upon reform. All prison reformers are coming to recognize the desirability of such indeterminate sentences. The work of the men at Elmira pays over two-thirds of the expenses of the institution, and even if we consider only dollars and cents, this method of dealing with crime is evidently the cheapest; for under the old method we have to take into account the expenses of the later crimes of the men released without improvement of character. The method of parole of first offenders, newly introduced into France, and in use to some extent in other countries also, seems to have rather less to recommend it, except in special cases; since the moral, intellectual, and industrial discipline of the reformatory are lacking.

In all such reformatory work it may be remarked that hard labor and stringent discipline, as well as consistent kindness, are found absolutely necessary; and it is to be noted that the disinclination of criminals for labor and regularity of life is one of the greatest obstacles in the way of their reform.[283] Judge Green quotes from Mr. Hough on this point: "Those who are in control of penal institutions meet with no more pernicious influence than that exerted by certain well-meaning but mistaken philanthropists who are impelled by kindly hearts to slop over with sentiment. No criminal is so hard to reach as the one who fancies himself injured or has a grievance against society. Aside from treatment that compels him to feel resentment, there is no one thing that will so quickly bring this feeling as to have some tender-hearted, benevolent person tell him that they think his penalty is far more severe than his offence warrants, especially now that he has promised to pray regularly and abandon his wicked ways."[284] In connection with this point, we may notice Bellamy's theory of crime as Atavism, to be treated in the hospitals. Whether or not we regard crime as disease, a distinction must be drawn between the disease that may be regarded as physical weakness and that which does not necessarily imply such weakness, though it may imply some physical defect in the sense that the psychical characteristic has always its physical cooerdinate. We may call the places where our criminals are treated prisons, or we may call them hospitals; but the name will not alter the fact that crime, and even the crime the tendency to which manifests itself early in life and is most incorrigible, needs, for the most part, a wholly different treatment from that pursued with the sick or the insane. Discipline and labor may come into play in the insane asylum, and medicine and hygiene in the prison; but the methods are, nevertheless, widely separated, and need to be so in order to attain any success. Bellamy's conception of the character of the criminal by nature--such as he imagines as alone existing under the conditions of his ideal state--as rarely untruthful, does not at all accord with the facts of Psychology and Criminology. Total unreliability is one of the chief characteristics of the criminal by nature. He lies even where there is nothing to be gained by lying and often much to be lost; he lies apparently for the mere pleasure of lying; or he is crafty and cunning, and the smallest gain suffices to furnish him with a motive for falsehood. In mankind, as a whole, the love of truth, one of the latest developments of the moral sense, is likewise one of those earliest lost in any moral deterioration; and to suppose men, as a rule, strictly truthful and yet capable of committing crimes of any sort, especially in a general ideal state of society and morals, is to suppose a psychological contradiction. Moreover, the antipathy of the criminal to undergoing the penalty of his crime would still remain as long as the discipline and labor of the places for criminal treatment were not abolished; and even the restrictions of incarceration would render the penalty disagreeable, since liberty is always preferable to confinement. And if we consider the indefinite sentence, which all prison reformers now regard as the first condition of the successful treatment of crime, to be introduced, the reasons for pleading "Not Guilty" would by no means be removed. But I doubt whether a society of high moral development would sanction the doubling of the penalty which Bellamy conceives, as the punishment of simply a lie to escape it.

The question of capital punishment is more difficult than at first glance appears. One of the arguments often advanced in opposition to this form of punishment is that the fear of it is no preventive of the crime of murder (for which alone, in times of peace, it is still imposed in civilized countries), since murder still takes place. But the argument in this form is practically worthless; we might as well say that art exhibitions do nothing to form taste, since many people who visit them are still lacking in aesthetic feeling. The fact that men have gone away from public executions and committed murder is more to the purpose, as an indication that the influence of the spectacle is probably a bad one. As to the private execution within prison-walls, it is difficult to suppose that the mere knowledge of it could arouse a desire for blood, as the sight of it may be imagined to do. If we abandon capital punishment on this ground merely, ought we not, in consistency, to do away with all representations of violent death on the stage and all description of it in fiction, since these things must affect the imagination full as vividly. The gladiatorial shows of Rome were doubtless undesirable from a humanitarian point of view, not only in themselves, but also in their results; and it might be undesirable for most individuals to accustom themselves to the spectacle of the butchering of their meat; but, whether or not we agree with the vegetarians as to the social significance and influence of the use of animal-food (necessarily, of course, we must concede that every fact has an influence of some sort, and in some degree, upon the mind), it can scarcely be claimed that the mere knowledge that beeves are slaughtered somewhere is likely to influence the mind to such an extent as to lead to a morbid desire to imitate the deed; nor, the stimulating excitement of the actual spectacle of execution lacking, is it likely that the mere knowledge of its actuality should incite to the taking of human life. On the contrary, it appears far more likely that the would-be murderer should connect the thought of it with the possibilities of his own future in case of detection and arrest, and that he should, thus, be rather deterred from crime by it.

The vital questions appear to be whether we have a right thus to sacrifice life, and whether the evil which the murderer brings upon society may not be better prevented in some other way. Leaving out of consideration, for a moment, a point which will be considered later, the two questions will be seen to resolve themselves into one. If I should perceive an innocent man about to be murdered by a villain, who was on the point of plunging his knife into his victim's heart, and I had in my hand at the time a loaded revolver, my duty would be plain. I should have no choice as to the responsibility for one man's life; only the choice would be left me as to which life I would be responsible for; and to spare the murderer would be to make myself an accomplice in the murder. The responsibility lies with every society to do the utmost in its power to prevent the murder of citizens who are, in the majority of cases, better men than their murderer; and the life, even, of the murderer cannot stand out against the life of better men. If, then, the death sentence is the best preventive of murder, and society refuses to inflict it nevertheless, it makes itself the accomplice of the murderer as much as is the man who stands by and permits the knife to be plunged into the victim's heart, rather than shoot down its wielder. It is not mercy that spares the guilty to sacrifice the innocent. If, then, we must be responsible for the death of any man, let it be for that of the murderer rather than for that of his victims. It is easy enough to say, as do some on this point, that it should never become a principle of society to do evil in order that good may come; but as long as there are conflicting conditions in society, there can be no choice of absolute good; the only choice is between lesser and greater evils. Forgetting this, and looking only on the one side of the question on which their sympathy has especially been excited, reformers are sometimes guilty of choosing the greater evil in order that a lesser good may come. It is, therefore, not sufficient to brand capital punishment "a relic of barbarism," in order to prove that it should be abolished.

The problem of prevention of murder includes various elements: it includes the question of the possible repetition of the crime by the individual on trial, the question of his influence by precept and example, and that of his possible propagation of offspring who may inherit his evil propensities; and it also includes the question of the check of fear in other would-be murderers.

It has been claimed that imprisonment for life would act as an effectual preventive in all these respects. There may be, however, various objections to this penalty. In the first place, an unconditional life-sentence without hope of pardon is difficult to establish, especially in democratic countries; and its justice is doubtful, in case it were possible. Even if sentences of this sort were to be passed, pity would be likely to interfere later with their execution. And then the momentous question arises as to whether it would always be well-directed pity. The men in whom the right of pardon is vested are not always wise in their use of it, and in democratic countries they are guided to a considerable extent by the will of importunate portions of society which is often still less wise. The sentimentality which now vents itself in loading down violent criminals with flowers, fruit, gifts of all sorts, letters, photographs, commiserations for their "misfortune," and even offers of marriage, is likely to stand in the way of the safety of society in case the murderer lives. This sentimentality, which in many countries exalts the criminal into a hero, and in France turns the police court into a fashionable place of amusement, were it not to be followed by the dread ending which the sterner members of society exact, and were the hope of pardon still open, might invest arrest with even some attractions to the murderer, who is frequently a hero in his own eyes. The prominence of a desire for notoriety is evident in criminals of the Jack-the-Ripper and other types. The sentimentality which is unable to distinguish between a legitimate mercy, and the mercy to the individual which amounts to the worst of cruelty to many others, is, indeed, a continual danger to society and a hindrance to useful reforms.

Again, if the criminal be condemned to life-imprisonment, there is always the possibility of his escape to be considered, and the fact that he will probably stick at nothing to accomplish his escape. The dangers of ultimate success may not be so large; our prisons are nowadays strongly built, the warders and other officers are very seldom open to bribes, and the proportion of escapes is extremely small. Nevertheless, the hopelessness of a life-sentence must constitute a strong motive for the stimulation of effort and ingenuity; and it can scarcely be hoped that a man who has not before hesitated at murder, and who has no greater penalty to fear in case of any number of repetitions of the crime, will hesitate when his liberty and all it means to him of freedom from irksome discipline and restraint of vice, is at stake. And in case of escape society has to fear, not only repetitions of the crime, but also the numberless and complex workings of the criminal's influence on others, and the propagation of offspring who may inherit his evil propensities.

And, furthermore, if the sentence of life-imprisonment is carried out, the murderer's influence on the other tenants of the prison is to be considered, in case he is not kept in solitary confinement. The preservation of a large number of desperate criminals, in contact with the less corrupt ones whose reform is being attempted, has many objections. Criminals have more than once stated that they learned their worst principles from companions in prison, and many of our prisons and many of our reformatories have been called mere schools of vice. Moreover, in maintaining our desperate criminals, we are spending large sums for their comfort while hundreds of better men are left to starve, and thousands are more poorly clothed and fed.

The fact that murder has not increased in some countries where the death-sentence has been abolished may be admitted as evidence in the matter, but cannot be regarded, alone, as conclusive. For, first, that which is for the general good in one country may not be so in another, the national temperament, form of government, and general habits of which are different. And, furthermore, it may be said that, although statistics undoubtedly must have some meaning in all cases, the complication of social conditions renders it often difficult to say just what the significance may be in the particular case. In the diminution of murders, other circumstances may have been at work which would have lessened the number even if the death-sentence had not been abolished. At least, experiments with regard to the abolition of the death-penalty have been too few to render any categorical assertion on the subject possible.

But some of the above-stated objections to the abolition of capital punishment might be removed by the provision of separate prisons for malefactors condemned to life-imprisonment, with separate wards according to the moral condition of the prisoners, little communication being allowed between even those in the same ward, or communication only under supervision, and such instruction being given as would enable the individual to occupy the hours not devoted to labor in study, reading, or other mental recreation.

Green, in his book on crime, calls attention to the very undesirable vindictiveness sometimes aroused, by sentence of death, in the minds of the condemned and of his friends, and notices the general evil of the feeling in the minds of criminals that the state is their deadly foe, defiance of the laws being thus raised to the plane of legitimate warfare upon an enemy. The Hon. John J. Wheeler, in a paper quoted by Green, lays especial stress on the desirability of convincing the criminal that not revenge but the protection of society is aimed at in state-punishment.

Again, the question may be asked whether the sentimental tendency to regard the criminal as a hero is not fostered by the death-sentence--whether the pity aroused at so extreme a fate would not be inclined to take a less harmful form if the treatment of the criminal were at once firm and humane but less sensational. Doubtless, the glory of crime and half its attractiveness for a large class of morbid criminals would be departed, if we could come to regard the latter with commiseration as of a lower and abnormal type of humanity and to treat them as such. But it must be remembered that society, as a whole, is yet far from so scientific a conception; and that combined firmness and kindness of treatment is difficult to secure, both in prison-officials and in those officers who have the power of pardon at present placed in their hands. We need obviously many reforms in our system of sentence and pardon, as well as in the management of our prisons. We need more men like Mr. Brockway of Elmira, Mr. Wardwell of Virginia, and those other modern reformers of prison-life whose office is to them a matter of humanity and not merely of business. And especially, we need more firmness in society as a whole; sympathy and mercy may be evils in the path of human progress when they deteriorate into a weakness which sacrifices the innocent in a mistaken humanity towards the guilty. In order to be well directed, sympathy must consider all men, and not the individual alone; only then is it an unmitigated good.

But as for the argument noticed above with regard to the employment of large sums of money for the maintenance of the criminal classes while the class of honest laborers is yet in destitution, it cannot be considered, on close inspection, as of great weight. Certainly it would not be well to maintain the criminal in luxury while other reforms were waiting. But if we act on the principle of deferring all less important reforms until all the more important ones are accomplished, we shall be in danger of not reforming at all. Any reform that is well-timed and possible is important; for the complication of social relations makes all reforms of weight in their wider significance. No reforms can or should be made in a lump; improvement must come from all sides and little by little; sympathy must be consistent and influence social conditions in every direction gradually as it gradually increases. It is the superficial Utilitarianism which bids us wait such a reform as this, though possible, for another,--the same sort of Utilitarianism which advocates the introduction of the Spartan custom of preserving only well-formed and vigorous infants, and advises the administration of painless poisons to those hopelessly ill and suffering. All these things have their relation to character, and, therefore, to other social evils, or reforms.

And here we are brought finally to the consideration of the point hitherto left out of account,--a point which bears, however, a strong argument; namely, the fact of the possible condemnation of innocent men to death. Even since the limitation of capital punishment to cases of murder the innocent have been hung or guillotined in mistake for the guilty. And for such mistakes there is no reparation; the grave never gives up its dead. Men have sometimes been discovered to be innocent in spite of the strongest evidence against them; human observation is defective, human memory fallible, human character--especially such as often appears in evidence against the murderer--by no means always strictly honorable and honest. Even confessions of guilt have sometimes been proved false. As with regard to other propositions to place the power of the life or death of individuals in the hands of their fellow men, the question presents itself as to whether the use of so great power is not dangerous. And this appears to me the decisive point of our inquiry.

Societies are being formed for the abolition of capital punishment, and feeling is growing strong in its favor. Let us hope, however, that the reformers will adopt a policy stringent and judicious as well as merciful;--that they will not forget that, in order to render the preservation of the murderer harmless to society we need other reforms in law and prison management.

In general, it may be said of all questions, that the conflict between the principles of justice and mercy, known to theological Ethics, resolves itself, from a higher point of view, into the question of justice only. The mercy which is not justice, is either mercy to one at the expense of others, or mercy that spares the offender in one respect to his own greater disadvantage in another. The ideal character is thus at once gentle and strong.

We have followed the development of altruism from egoism up to the point where the thought of punishment ensuing upon the non-performance of duty ceases to play a large part in the motive to action, the reward of the pleasure of others and of their gratitude and love forming a complex motive. But beyond even the incentives of love there lies still a higher motive which, in cases of conflict, must figure as the highest morally. In an ideal state, the social sanction could not conflict with duty; but until we reach such a state, the independence of moral motive must be observed, the moral man must do what appears to him right, in spite of public opinion. The course has its dangers, and the principle must be carried out with caution, the questions involving such a course be carefully considered from all sides and in all lights. But when this has been done, the sense of duty remains supreme. In the ideal man, the consciousness of duty performed should constitute the strongest pleasure, the consciousness of failure in duty the severest pain. This is the solution of the problem Ibsen gives us in "Rosmersholm"; society has not advanced from savagery by permitting all pleasures which the individual desires; nor can it advance further towards the ideal by permitting the individual to choose those pleasures which the future shall regard as evidence of our present semi-barbarous state, since they are pleasures inimical to the peace of others and the general good of society; as in the past, so in the present and future, the harmony between pleasure and duty (that is between the conflicting pleasures of individuals) can be attained only by habit which shall bring the desires of the individual into harmony with duty. Thus only can all desires, the happiness of all individuals, attain to harmony,--to "full" equilibrium.

And this leads me to remark that we have reason to doubt the moral conviction of very many who protest against the "immoral" and "superstitious" restriction of personal pleasure in certain directions. Were such individuals morally convinced, were duty to their fellow men really uppermost in their minds, they would not choose darkness and secrecy for their deeds, but after careful and thorough statement of their opinions and reasons would show the earnestness of their belief by open act. The man whose moral conviction is to him the highest duty does not fear public opinion, but dares to follow that which seems to him right, in the face of slander; therefore, we suspect the man who hides his deeds, of seeking his own pleasure and not that of society as a whole.

"Conscience is harder than our enemies,
Knows more, accuses with more nicety,
Nor needs to question Rumor if we fall
Below the perfect level of our thought.
I fear no outward arbiter,"

says Don Silva in "The Spanish Gypsy."

But for our encouragement, let us contemplate the heroic characters which progress has developed. From these we may take hope and courage, in these we may find the best results of the moral evolution of our race, and the promise of the better future which man alone can work out by ever-renewed effort. The love of such characters, and even the knowledge that they exist, is the highest joy of human association, a joy which the present age may feel in a degree that no former age has known; and herein lies the greater beauty of the present time over all others. The thought of such characters can sustain us even in our own self-doubt. What man has done, man can do. Nay, he shall do more, much more.

The question as to the final destruction of the human race, whether by sudden catastrophe or slow decay, can little affect happiness, at present, or for very many ages to come. As yet, evolution is in the direction of a greater harmony that means continually greater pleasure to life. We have not reached our maximum, we are evolving upwards towards it. The pessimist is fond of making much of the final end of our planet; but the healthy and successful will be happy in spite of future ages, and the extent and degree of happiness will continue to increase for such an immense period of time that there is no reason for considering the destruction of our race as exerting any important influence on ethical theory. The loss of our faith in individual immortality is a far greater source of present pain. It leaves death a harder sorrow;--but it lends life new meaning. The good we strive for lies no longer in a world of dreams on the other side the grave; it is brought down to earth and waits to be realized by human hands, through human labor. We are called on to forsake the finer egoism that centred all its care on self-salvation, for a love of our own kind that shall triumph over death, and leave its impress on the joy of generations to come. There is something lost in the dissolution of the old faith to us who were reared in it. The hope of restitution, to the individual, from supernatural cause, here or hereafter, is forever done away with. There is no restitution. In our favorite novel, when the doors are closed and the lights extinguished, that some unspeakable sorrow may hide itself in darkness and silence, we can always turn back the leaves till we are again in the midst of light and music and dancing, and the heart for which the tragic knife is pitilessly sharpening in the hand of Destiny, is yet untouched. But in the book of Reality, there is no turning back; the pages are burned before our eyes as we read. Sooner or later, we all of us reach the point where that which made life most worth living has passed away from us forever. There is no help save the knowledge of the fact, that shall make us all draw closer in sympathy and by mutual kindness render loss less bitter. As we accept the Truth, and bow our head to the Inevitable, we may learn a less narrow happiness for this life and for the Hereafter, from the great pioneers of Scientific Doubt and pure Humanitarianism, one of whom has written:--

"Oh, may I join the choir invisible
Of those immortal dead who live again
In minds made better by their presence; live
In pulses stirred to generosity,
In deeds of daring rectitude, in scorn
For miserable aims that end with self,
In thoughts sublime that pierce the night like stars,
And with their mild persistence urge man's search
To vaster issues.
So to live is heaven:
To make undying music in the world,
Breathing as beauteous order that controls
With growing sway the growing life of man.

*....*....*....*

This is life to come,
Which martyred men have made more glorious
For us who strive to follow. May I reach
That purest heaven, be to other souls
The cup of strength in some great agony,
Enkindle generous ardor, feed pure love,
Beget the smiles that have no cruelty,--
Be the sweet presence of a good diffused,
And in diffusion ever more intense.
So shall I join the choir invisible,
Whose music is the gladness of the world."

FOOTNOTES:

[275] It should be said, in justice to the play in question, that the idea of purification by evil was evidently not present to its author.

[276] See Part I. p. 33, this book; "Social Statics," 87-89.

[277] "Le Luxe," p. 2.

[278] "Le Luxe," p. 12.

[279] "Fabian Essays in Socialism," pp. 27, 145, etc.

[280] I have used the word here as elsewhere in its more general, not in its specific, technical sense.

[281] "Fabian Essays," p. 57.

[282] See "Jahrbuecher fuer Psychiatrie," 1889, "Ueber Neurosen und Psychosen durch sexuelle Abstinenz."

[283] See essay by Charles Dudley Warner in the "North American Review" for April, 1885.

[284] S. M. Green: "Crime," Art. III. Chap. V.

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