We may safely say that, in a very large number of cases, the
worst crimes are perpetrated by beings for whom the death
penalty has no preventive terrors.
But it is otherwise with the majority. Death itself, apart
from punitive aspects, is a greater evil to those for whom
life has greater attractions. Besides this, the permanent
disgrace of capital punishment, the lasting injury to the
criminal's family and to all who are dear to him, must be far
more cogent incentives to self-control than the mere fear of
ceasing to live.
With the criminal and most degraded class - with those who
are actuated by violent passions and hereditary taints, the
class by which most murders are committed - the death
punishment would seem to be useless as an intimidation or an
example.
With the majority it is more than probable that it exercises
a strong and beneficial influence. As no mere social
distinction can eradicate innate instincts, there must be a
large proportion of the majority, the better-to-do, who are
both occasionally and habitually subject to criminal
propensities, and who shall say how many of these are
restrained from the worst of crimes by fear of capital
punishment and its consequences?
On these grounds, if they be not fallacious, the retention of
capital punishment may be justified.
Secondly. Is the assumption tenable that no other penalty
makes so strong an impression or is so pre-eminently
exemplary? Bentham thus answers the question: 'It appears
to me that the contemplation of perpetual imprisonment,
accompanied with hard labour and occasional solitary
confinement, would produce a deeper impression on the minds
of persons in whom it is more eminently desirable that that
impression should be produced than even death itself. . . .
All that renders death less formidable to them renders
laborious restraint proportionably more irksome.' There is
doubtless a certain measure of truth in these remarks. But
Bentham is here speaking of the degraded class; and is it
likely that such would reflect seriously upon what they never
see and only know by hearsay? Think how feeble are their
powers of imagination and reflection, how little they would
be impressed by such additional seventies as 'occasional
solitary confinement,' the occurrence and the effects of
which would be known to no one outside the jail.
As to the 'majority,' the higher classes, the fact that men
are often imprisoned for offences - political and others -
which they are proud to suffer for, would always attenuate
the ignominy attached to 'imprisonment.' And were this the
only penalty for all crimes, for first-class misdemeanants
and for the most atrocious of criminals alike, the
distinction would not be very finely drawn by the interested;
at the most, the severest treatment as an alternative to
capital punishment would always savour of extenuating
circumstances.
