If we admit, however reluctantly, that a criminal law is necessary and that the force of the community must be brought to bear to prevent certain kinds of actions, a further question arises: How is crime to be treated? What is the greatest measure of humanity and respect for freedom that is compatible with the recognition of such a thing as crime? The first thing to recognize is that the whole conception of guilt or sin should be utterly swept away. At present, the criminal is visited with the displeasure of the community: the sole method applied to prevent the occurrence of crime is the infliction of pain upon the criminal. Everything possible is done to break his spirit and destroy his self-respect. Even those pleasures which would be most likely to have a civilizing effect are forbidden to him, merely on the ground that they are pleasures, while much of the suffering inflicted is of a kind which can only brutalize and degrade still further. I am not speaking, of course, of those few penal institutions which have made a serious study of reforming the criminal. Such institutions, especially in America, have been proved capable of achieving the most remarkable results, but they remain everywhere exceptional. The broad rule is still that the criminal is made to feel the displeasure of society. He must emerge from such a treatment either defiant and hostile, or submissive and cringing, with a broken spirit and a loss of self-respect. Neither of these results is anything but evil. Nor can any good result be achieved by a method of treatment which embodies reprobation.
When a man is suffering from an infectious disease he is a danger to the community, and it is necessary to restrict his liberty of movement. But no one associates any idea of guilt with such a situation. On the contrary, he is an object of commiseration to his friends. Such steps as science recommends are taken to cure him of his disease, and he submits as a rule without reluctance to the curtailment of liberty involved meanwhile. The same method in spirit ought to be shown in the treatment of what is called “crime.” It is supposed, of course, that the criminal is actuated by calculations of self-interest, and that the fear of punishment, by supplying a contrary motive of self-interest affords the best deterrent,
The dog, to gain some private end,
Went mad and bit the man.
This is the popular view of crime; yet no dog goes mad from choice, and probably the same is true of the great majority of criminals, certainly in the case of crimes of passion. Even in cases where self-interest is the motive, the important thing is to prevent the crime, not to make the criminal suffer. Any suffering which may be entailed by the process of prevention ought to be regarded as regrettable, like the pain involved in a surgical operation. The man who commits a crime from an impulse to violence ought to be subjected to a scientific psychological treatment, designed to elicit more beneficial impulses. The man who commits a crime from calculations of self-interest ought to be made to feel that self-interest itself, when it is fully understood, can be better served by a life which is useful to the community than by one which is harmful. For this purpose it is chiefly necessary to widen his outlook and increase the scope of his desires. At present, when a man suffers from insufficient love for his fellow-creatures, the method of curing him which is commonly adopted seems scarcely designed to succeed, being, indeed, in essentials, the same as his attitude toward them. The object of the prison administration is to save trouble, not to study the individual case. He is kept in captivity in a cell from which all sight of the earth is shut out: he is subjected to harshness by warders, who have too often become brutalized by their occupation.54 He is solemnly denounced as an enemy to society. He is compelled to perform mechanical tasks, chosen for their wearisomeness. He is given no education and no incentive to self-improvement. Is it to be wondered at if, at the end of such a course of treatment, his feelings toward the community are no more friendly than they were at the beginning?
Severity of punishment arose through vindictiveness and fear in an age when many criminals escaped justice altogether, and it was hoped that savage sentences would outweigh the chance of escape in the mind of the criminal. At present a very large part of the criminal law is concerned in safeguarding the rights of property, that is to say—as things are now—the unjust privileges of the rich. Those whose principles lead them into conflict with government, like Anarchists, bring a most formidable indictment against the law and the authorities for the unjust manner in which they support the status quo. Many of the actions by which men have become rich are far more harmful to the community than the obscure crimes of poor men, yet they go unpunished because they do not interfere with the existing order. If the power of the community is to be brought to bear to prevent certain classes of actions through the agency of the criminal law, it is as necessary that these actions should really be those which are harmful to the community, as it is that the treatment of “criminals” should be freed from the conception of guilt and inspired by the same spirit as is shown in the treatment of disease. But, if these two conditions were fulfilled, I cannot help thinking that a society which preserved the existence of law would be preferable to one conducted on the unadulterated principles of Anarchism.
So far we have been considering the power which the State derives from the criminal law. We have every reason to think that this power cannot be entirely abolished, though it can be exercised in a
