Was to correct the effect, and check the cause, And all the ends of punishment, Were only future mischiefs to prevent.
No. 1 – Criminal Justice:-
The first question, is, what is a crime? It is an act injurious to another person, or group of persons. Not all injurious acts are crimes. It is a crime only when the offense is of such a grave character that its occurrence would likely cause, in the “average citizen,” a horror or an extreme repugnance or disgust. But; more than that, I suggest — a crime is an act, which, while it might be injurious to a particular person (though not necessarily2), is injurious to the body politic.3 As a practical matter, though while there are presumably constitutional limits, a crime is any act which the legislative assembly has defined as being a crime.4 Further, as a practical distinction, a person who has allegedly committed a crime is pursued and prosecuted by the state. A crime is to be compared to an act injurious to another person and which has not been defined as a crime; such as, breaching a legal contract or acting carelessly, though unintentionally, so as to cause damages to another (negligence); in which case the offending person may be pursued, in a court of law, at the discretion of the injured party, viz., a civil suit versus a criminal prosecution.
It is to be remembered, under our system of government, that each of us has surrendered up to the state our natural right to revenge ourselves or our families for wrongs done. Punishment, because of our “social contract,” might only be meted out by the state and only then after a formal proceeding conducted with due regard to constitutional safeguards. We have become especially sensitive to the state and its processes in respect to punishing a citizen. This sensitivity is traceable back to the times of the Star Chamber.5 The fact of the matter is that the criminal law, in years past and yet today in parts of the world, has been used as an efficient engine for the purposes of political and religious prosecution. I quote Roscoe Pound:
“It is an inherent difficulty in the administration of punitive justice that criminal law has a much closer connection with politics than has the law of civil relations. There is no great danger of oppression through civil litigation. There is constant fear of oppression through the criminal law. Not only is one class suspicious of attempts by another to force its ideas upon the community under penalty of prosecution, but the power of a majority to visit with punishment practices which a strong minority consider in no wise objectionable is liable to abuse and, whether rightly or wrongly used, puts a strain upon criminal law and administration.”
No. 2 – Punishment:-
First we define the crime; then we keep watch; and, where we detect a crime, hopefully, charge a suspect. All necessary processes: but, ones which must be done under our constitutional laws.7 Once the state, through its police, on reasonable grounds, believes a person has committed a crime, then the suspected criminal is brought to account. The prosecution of an alleged criminal, in our justice system, is, an elaborate process. At the end of the process, we then might be in a position to declare the person to be guilty of the crime and thus to be a convicted criminal. What then is next? What is it that we are to do with convicted criminals? Well, traditionally, we punish them; and, we do so, for good reasons, reasons such as deterrence and retribution. We may, quite aside from punishment, try to rehabilitate them so that they will become law abiding citizens. Or, as seems to be the case these days; punish and attempt to rehabilitate, all at the same time.
More generally, punishment is one of the pillars of justice; it is to be meted out mercifully in a measure suited to the crime. “The only true way to make the mass of mankind see the beauty of justice is by showing to them in pretty plain terms the consequences of injustice.”8 With law comes the notion, according to Locke, of either reward or punishment.
No. 3 – Retribution:-
It is to be remembered that one of the primary reasons for the law’s existence, indeed the state’s existence, is that people are to be relieved of their need to strike out against those who have wronged them. Not to argue the rights or wrongs of it; it is entirely natural for an individual, when injured or harmed by another or others, to seek revenge and retribution. It is potentially harmful to the state if it does not satisfy these needs, these urges. If the people are not satisfied, as history clearly shows, then the people take the law into their own hands; and, they will do so, quick enough, if they see that the law does not suit their purposes. To punish the criminal, in order to satisfy the urges of the victim for revenge and retribution is an expression of a very old law, which still finds expression in our existing law, lex talionis10. The Mosaic Code of “an eye for an eye and a tooth for a tooth” lurks behind most legal punishments.
No. 4 – Deterrence:-
People are driven to do, or not to do things, by the twin engines of hope and fear. Apprehension or dread of something that will or may happen in the future: it is this simple reaction to the promise of punishment which harnesses most and keeps them straight on the road of law and order.11 We aim to deter future wrongdoers by punishing past offenders. Where deterrence is the only purpose, then, that punishment is to be preferred which combines the greatest deterrence with the least pain. For those who possess property then the taking away of their property by the levying of a fine maybe a sufficient deterrence. But fines hardly work against those who have nothing to lose. What is left is either imprisonment or the threat of corporal punishment. However, as Mencken was to observe, the choice of imprisonment or fine, is a choice of “allowing one prisoner to pay a bribe for his Liberty, and taking away the Liberty of another prisoner because he hasn’t got the bribe.”
No. 5 – Removement:-
The removal of the convicted criminal may be solely motivated by the desire of making sure that the person no longer has the opportunity to commit crime. One might well be of the view that a convicted criminal is “social garbage” to be dealt with accordingly. Put them in prison; and, keep them there. A less expensive way of removement, though certainly drastic, is to put them to death. Removement, is, indeed, a justification for capital punishment; though, probably, the deterrence factor is more prominent. If dead, a convicted criminal cannot commit more crimes. Imprisonment is a more, very much more, expensive way of removement. A whole attitude in regards capital punishment and prisons might well be summed up in the view expressed by Thomas Huxley, we should keep criminals only if we believe, with some certainty, that they may become “serviceable members of the polity.”
No. 6 – Rehabilitation:-
A view, prevalent to the late 20th century, is that a person who commits a crime suffers from a disease, and, applying Freudian principles, so called humanitarians, who, caring less for victims or the general peaceful state of society, apologize and excuse the criminal. It seems the vast majority of criminals are inflicted with a neurosis, or whatever; and, they neither can help themselves in respect to its onset or its cure. What we need to do, is to help these people, not punish them. “The idea seems to be,” as H.L. Mencken wrote, “to turn the dungeons and bullpens of the law into laboratories of the uplift, so that the man who goes in a burglar will come out a Y.M.C.A. secretary.”13 The result of these “humanitarian views,” is, that we send criminals off to institutions which are hardly prisons, at least as we have imagined them to be. One has to wonder. Oh! Sure. They are restricted; but prisoners, it seems to me, are sent to places which are more like retreats. These places have the accoutrements of a country club. There, the prisoner has immediately available to him services not generally available to a lot of law abiding citizens. This generous service is delivered through the agency of our government by the rest of us; we, who often cannot find the time to get a game of golf in or get off to the gym because we are too busy working for a living. In any event, is it, that we can change a criminal, a person who in his pursuit of life, is deliberate, habitual and incurable in his acts to advance himself at the expense of others. For most, I believe there is no cure. The rest of us who proceed in life serving others in exchange for a living, must but take steps to protect ourselves from such individuals. As Mencken points out, the vast majority of these people don’t mind going to prison, especially the prisons of today; why, to “be bagged now and then, to make occasional sojourns in prison — all that, to him, is mere professional risk. When, by some mischance, he is taken and jailed, he lays the business to the fortunes of war …”
No. 7 – What’s To Be Done?
Here, in Canada, we can trace our existing criminal code to that which was passed in 1892. Though there has been some attempt to restructure and to check its growth and to make it logically consistent,15 the Criminal Code of Canada is the same beast that came into being over a hundred years ago, and, since, has grown even more into a agglomeration of forbidden acts and transactions as has been dreamt up by successive political conclaves. It is, without a doubt a hodge-podge, a farrago, an unmethodical assemblage, a galimatias. It is full of repeating and disjointed sections most all of it written in arcane language which confuses and confounds the most experienced magistrates. The average officer of the law cannot work with it. And as for the chances of the citizenry, whom the code is meant to governed, coming to an understanding of what acts are criminal and what are not; well, — forget it: there is absolutely no chance. A citizen — outside of the acts of murder, assault, robbery and alike — will only know he has run afoul the criminal law when a policeman has come to his door to advise him of such. The Criminal Code, from start to finish needs to be rewritten, so to simplify and reduce.
“The more laws there are the more crimes there will be’, said the founder of Taoism about the sixth century B.C. As the Lord Chancellor in a recent speech well said – ‘The respect which the people of this country show to law and order is our greatest guarantee of getting through difficult times and it is incumbent upon the legislator to remember that when he piles one law upon another he may endanger that respect’. So it may be the task of future reformers of the law to agitate for the elimination from our criminal code of many of the innumerable offences which involve only what Dr. Radzinowicz terms ‘administrative criminality’ and evoke no moral reprobation except in so far as any breach of the existing law is reprehensible.”
Once a person is found through a fail-safe process to be a criminal, then, he ought to be punished, taking into account the factors considered: retribution, deterrence and rehabilitation. The process ought to take in account the wishes of the victim and/or his family; and, if so willing, they should be brought right in on the process. It maybe that the determination of the appropriate sentence, ought, in the first instance, be left to a specialized group. Benjamin Cardozo:
“Among students of criminology there are now many who maintain that the whole business of sentencing criminals should be taken away from the judges and given over to the doctors. Courts, with their judges and juries, are to find the fact of guilt or innocence. The fact being ascertained, the physician is to take the prisoner in hand and say what shall be done with him… After guilt has been determined by legal process, instead of sentence being fixed by judges according to statute, I should like to see offenders who have been adjudged guilty detained by the state. They should then be carefully studied by a board of expert mental and physical specialists, who after careful study of all the elements entering each case would decide and fix the penalty for the crime. I realize the complexity of such a fundamental change. It probably required even constitutional amendment.”
A factor which should weigh in large is whether a respected member of the community might come forward, hopefully one from the criminal’s own family. Where no such person is willing to come forward, then the criminal is to be left to face the severest of penalties.19 Now, a person who undertakes some specific responsibility on behalf of another who remains primarily liable, or who makes himself liable for the default or miscarriage of another, or for the performance of some act on his part, is a person who is going to have to make a very careful assessment of the individual for whom he vouches. Why should a person put his reputation or property on the line for another? Well, to begin with he must have some faith that the person for whom he is willing to go good, will deliver on the promised act or promised restraint. To institute a system20 of releasing a criminal where some responsible person in the community comes forward, at least in respect to the first offence, would, it seems to me, be of much benefit — not, just to the criminal at that moment; but, for enumerable other people in their daily dealings with family, friends and associates. The business of gaining an ally before the need of one through a history of cooperation and fair dealing should be capital that a person might spend in a court of law. A person is to understand by his experiences that a criminal act hurtful to others will result in equal or comparable punishment to him; and, repeated acts of kindness and considerations to others will get him off when once he made a mistake.
Lord MacMillan, in his introduction to Professor Leon Radzinowicz’ work, History of Criminal Law and Its Administration, op. cit., in quoting the Irish historian and philosopher, William Lecky (1838-1903), was to write, as follows:
“To distinguish between crime that springs from strongly marked criminal tendency and crime that is due to mere unfavourable circumstances or transient passion or weakness of will; to distinguish among genuine criminal tenancies between those which are still incipient and curable and those which have acquired the force of an inveterate disease, is the basis of all sound criminal reform. It cannot be carried out without much careful classification and many lines of separate treatment. The agencies for reclaiming and employing juvenile criminals; the separate treatment of intoxication [and drug addiction]; the broad distinction drawn between a first offender and an habitual criminal; the prison regulations that check the contagion of vice, have all had a good effect in reducing the amount of crime. Most of these things cost much, but they produce a speedy and ample return. Money is seldom better or more economically spent than in diminishing the sum of human crime and raising the standard of human character.”
The agencies to which Harold MacMillan referred in 1948 have diversified and multiplied and so has the cost. I am not so sure that any of it, however, has produced “a speedy and ample return.” Fifty years has now passed and many of my fellow citizens are ready to express the sentiment that the sentencing of the convicted criminal has grown more and more ineffective, sentimental and meaningless. If the system we desire is one which converts the convicted criminal to a respectable law abiding citizen, and which — when such a conversion is not possible (this being, I suspect, the situation for the vast majority of cases) — is to deter the criminal from committing further crime; then, we do not presently have the desired system in place. What we have, it seems, has failed in both departments; but, most certainly, has wholly failed to make crime difficult and unattractive.
1. I have a note that these lines are Daniel Defoe’s, “Hymn to the Pillory,” written just before, as a religious dissenter, in 1704, he was pilloried for the writing of the pamphlet, The Shortest Way with the Dissenters. The next four lines in respect to laws:
“But justice is interverted, when Those engines of the law, Instead of pinching vicious men, Keep honest ones in awe.”
2. There are, assuming one cannot commit a crime against one’s self, “victimless crimes,” such as: suicide, drugs, prostitution, gambling, etc. It was Sir James Fitzjames Stephen, the principal drafter of the Criminal Code of Canada (1892), which, in many of its parts, still exist today, who expressed the view that “the roughest engine which society can use for any purpose” is to improve morals, yet, he thought it should be so employed. This position is to be contrasted to that of the American jurist, Oliver Wendell Holmes who did not think that law ought to be used for this end, at all. By the way — Steven was a Christian: Holmes, an atheist. [See Stephen’s work, Liberty, Equality, Fraternity (1873); (University of Chicago Press, 1991) at p. 10.]
3. “An act punishable by law, as being forbidden by statute or injurious to the public welfare.” (OED.) H.L. Mencken defined it: “society, in order to protect the weak and botched against the bold and original, has had to proclaim certain human acts, under certain circumstances, as too dangerous to be permitted.” (“Crime and Punishment” as contained in the May, 1922 ed. of the Smart Set.)
4. “The conception of crime which the ordinary citizen entertains involves the commission of some act which transgresses not merely the law but morality. Murder, robbery, arson, perjury and the like all offend the natural instincts of the good citizen and their repression commands his assent. But in recent times the criminal law has invaded almost every department of daily life with countless restrictions to the contravention of which penal consequences are attached. People may now be arraigned for acts which are in no sense intrinsically wicked but are merely made crimes by Act of Parliament in pursuance either of economic exigencies or political theories.” [Lord MacMillan, in his introduction to Professor Leon Radzinowicz’ work, History of Criminal Law and Its Administration (London: Stevens & Sons Limited, 1948).] The criteria in the passing of criminal laws — which by implication means ultimately the application of force by government against the citizen — has been significantly (and I think wrongly) altered from that simple criteria which was set forth many years ago by John Stuart Mill: “… the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or to forbear because it will be better for him to do so, because it will make him happier, because in the opinions of others to do so would be wise or even right. These are good reasons for remonstrating with him , or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else.” (On Liberty, ch. 1.)
5. The Star Chamber is a synonym for arbitrary and oppressive administration of punitive justice. It is the appellation of an apartment in the royal palace at Westminster, in which during the 14th and the 15th century, the chancellor, treasurer, justices, and other members of the king’s Council sat. They did not feel compelled to exercise their jurisdiction in any prescribed fashion, other than to achieve the ends of the crown. It is this history which led, very early, unlike the common law, to a legislative adoption “that there must be chapter and verse of the written law behind every punishment.” (Roscoe Pound, in his introduction to Saleilles’ work, The Individualization of Punishment.)
6. Pound’s introduction to Saleilles’ work, op. cit..
7. The Canadian Charter of Rights, for example, provide: s.2, “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion, (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, (c) freedom of peaceful assembly; and (d) freedom of association”; s.7, “Everyone has the right to life, Liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; s.8, “Everyone has the right to be secure against unreasonable search or seizure”; s.10, “Everyone has the right on arrest or detention, (a) to be informed promptly of the reasons therefor, (b) to retain and instruct counsel without delay and to be informed of that right, and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful”; s.11, “Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence, (b) to be tried within a reasonable time, etc.”
8. Sydney Smith.
9. “We must, wherever we suppose a Law, suppose also some Reward or Punishment annexed to that Rule.” (Locke’s Human Understanding.) It is thought, and it seems reasonable enough, that, in “general, the method of punishment is more satisfactory than the method of reward, because it can be controlled to a greater extent.” (R. M. Yerkes, as quoted by OED.)
10. Lex talionis are fancy Latin words meaning the law of equivalent retaliation, and which, for lawyers, has a legal meaning which extends into a whole system of laws, of which the Code of Hammurabi, the earliest code of laws known to history, is a perfect example. “In general the principle of punishment was the lex talionis: ‘life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, stripe for stripe’ … The Mosaic Code, though written down at least fifteen hundred years later, shows no advance, in criminal legislation, upon the Code of Hammurabi; in legal organization it shows an archaic retrogression to primitive ecclesiastical control.” (Will Durant, Our Oriental Heritage, Vol.1, Bk.1, Ch.9.)
11. Fear is twofold; servile, whereby punishment, not fault, is dreaded; filial, by which fault is feared. It is this filial fear, or shame which has long been the sheet-anchor of the law. However, “Shame is no punishment except upon persons of ingenuous dispositions.” (1788, Priestley’s Lectures in History, v. xlvii, p. 353.)
12. H.L. Mencken, op. cit..
15. Since 1892, legislators “were influenced to implement such reform in annual legislation, which introduced inconsistencies in the code and made it bulky and unwieldy. The restructuring of 1954 reduced the bulk and removed many of the inconsistencies as well as most of the anomalies incorporated by default or accident in the 1892 legislation. With the creation of the Law Reform Commission, a permanent organization was established which has been a fruitful source of ideas for progressive change in the criminal law, and has pointed the way to a new model code. … The commissioners can ponder the law; they can conceive and draft programs of progressive reform; and they can put forward those programs for implementation by Parliament. But politicians march to a different drummer …” [The Genesis of the Canadian Criminal Code of 1892 (The Osgoode Society, University of Toronto Press, 1989) at pp. 163-4.]
16. “The laws of the most kingdoms and states have been like buildings of many pieces, and patched up from time to time according to occasion, without frame or model. … This continual heaping up of laws without digesting them maketh but a chaos and confusion, and turneth the laws many times to become but snares for the people… Then look into the state of your laws and justice of your land: purge out multiplicity of laws: clear the incertainty of them: repeal those that are snaring; and press the execution of those that are wholesome and necessary…” These are the words of Francis Bacon written some 400 years back.
17 Lord MacMillan in his introduction to Radzinowicz’ work, History of Criminal Law and Its Administration, op. cit. The arcanal and duplicative provisions need to be tossed and can be done in a re-write; but, to eliminate victimless crimes, as, for example, those relating to prostitution, pornography, and drugs — is another matter. To obtain a consensus in respect to constructive laws is extremely difficult in a democracy, indeed, next to impossible.
18. Law and Literature.
19. The Magna Carta provided that mercy might be shown to villains, but only “by the oath of honest men of the vicinage.”
20. There is nothing new about this; and, in part, has been operating in our criminal law system for quite some period of time. This approach has its roots in the law of outlawry. The notion of outlawry is timeless and maybe spotted in all societies of men. When a wrongdoer is brought before the ruling Council, a finding of guilt would mean he was turned loose to the victim, the victim’s family, or, for that matter, anybody else who would like to join in; anything that the mob should inflict, from death to torture, was, OK. The maxim applicable to outlaws is, “Let them be answerable to all, and none to them.” A person outlawed had no more rights than a dead man, civiliter mortuus. One, thus put outside the law, was deprived of its benefits and protection; one was then under a sentence of outlawry, a sentence, in times past that was worse than a sentence of death. In the earliest times “murder was punished by outlawry, but theft of goods and cattle by death.” (Maitland, History of English Law, 1895.) The only hope that a condemned man might have is when a person came forward to take responsibility for him.
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