The Philosophical Review/Volume 1/Summary: Tönnies - The Prevention of Crime
Science is extending its sway over politics and morals. The International Criminological Association, recently founded, aims to treat penal law, a branch of morals, scientifically. Its members accept these propositions among others: First, the object of punishment is the suppression of crime as a social phenomenon; secondly, the results of anthropology and sociology are to be applied to penology and penal legislation; thirdly, punishment is an effective means of suppressing crime, but it must be supplemented by other means. These propositions re-express the old doctrine that punishment is not for past sin, but to prevent future sin, and, naturally enough, are met by a reaffirmation of the opposed doctrine that punishment is for the sake of justice and must be equivalent in amount to the guilt. The latter is the primitive conception of all penal law, for this originated in revenge, or the desire for retribution. With the transition in the latter half of the last century from retributive law to law threatening punishment the idea of punishing to prevent became prominent, for prevention must be the object of threats. This antithesis between the absolute and the relative theories in penology is connected with those between freedom and determinism and between the responsibility and irresponsibility of criminals and others.
Determinism may find the essence of punishment in the threat and its value in bringing a counter-motive to act on the individual. If the deterring motive prove ineffectual, the punishment must fall, not for the sake of the criminal, but in order to keep that motive at work and efficient in society. The objection to this theory is that it makes the individual only a means to the common good.
Again, it may be contended that the normal man, though determined, is aware of what he does and of the penalty threatened. He reckons on that basis and can no more complain, if the result is painful, than could a loser at a lottery.
Reply. Such an hypothesis is, indeed, deterministic as applied to the will, but conceives that thought is free and that it goes before and determines the will. It regards men as alike in this respect, while as a matter of fact psychology is finding great differences between individuals in this as in all else, and is putting individuality in the place of uniformity, even intellectual uniformity. Self-restraint and self-determination are largely matters of heredity.
So far as this contention is true, it shows that a penalty reckoned upon is not unjust. Yet now when morals and law are in practice further apart than before, the infliction of such a penalty may be legally unimpeachable and, notwithstanding, it may revolt our whole moral nature that one compelled into crime by his antecedents and environment should suffer for it.
The more completely one understands the criminal, the more does desire for retribution pass into pity and desire for his reform. In our present penal system, which since Beccaria and Howard has been influenced by the reformation theory, the loss of liberty occupies the principal place, and this is not of necessity reformatory. As imprisonment becomes more reformatory, it may become less irksome and so less preventive; in improving the criminal it may injure society. Granting that it is desirable to reform the prisoners if possible, how is it to be accomplished? It is the well-nigh unanimous opinion of specialists that short terms of confinement are deteriorating in their influence, and this result can hardly be due to bad administration, for it was in Belgium, where the management is admittedly excellent, that the idea of doing away with short terms originated. But on the other hand long terms, which aim to make confinement painful and humiliating, do not succeed much better. We are told here, too, that "reformation is a fiction." The conditions may be more favorable; the material is more intractable; indeed, the great majority are already lost beyond saving.
If neither form of punishment avails to reform the prisoners, what restraining influence do they exert on him or others? In this regard long terms are much more effective.
Anthropology and sociology indicate that certain individuals have a criminal nature. They are habitual or incorrigible criminals and, as such, should be rendered harmless to society, for as long a period as possible. This bold position of the International Criminological Association breaks with the idea that the criminal is punished for his deed, and takes the stand that he should be punished for his mental and moral condition. In other words, punishment is transformed into judicious treatment, the element of pain is eliminated, as it already has been from the care of the insane. The judge, perhaps on petition from the community to which the criminal or dissolute man belongs, should decide on the necessity of the state's caring for him. Such care would involve life in a state institution, but a minimum use of force or restraint. No habitual criminal should be released without retaining some hold upon him. The element of compensation to the party injured should be given greater importance in our criminal law. At present it seems to be an amalgamation of morals and law, and such a return towards the original private treatment of crime might give morals an independent validity. Penal law in all countries is on the verge of a collapse, and the whole idea of punishment in the sense of inflicting evil ought to be abandoned.