Capital Punishment in Theory and Practice

Abstract

While there was unanimity that convicted criminals should be punished, there were marked differences about why and how this should be done. The purpose of punishment or, more accurately, of the balance of punishment, was much disputed. Three different elements need to be distinguished: the retributive, the deterrent and the reformative. The idea of retribution is perhaps the oldest, but it would be misleading to see it simply as a ‘primitive’ attitude, diminishing in importance over time. The idea that punishment expresses ‘society’s’ disapproval of crime and is the means whereby the criminal repays his debt to society for the crime that he or she has committed was a powerful and continuing one. As James Fitzjames Stephen put it, ‘the sentence of law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax’.1 A second consideration was the deterrent effect of punishment. The sight of a corpse dangling at the rope’s end or the knowledge that a long prison sentence was the fate of the nineteenth-century criminal was intended to deter the ordinary citizen from straying into criminal behaviour. The theatre of the gallows in the eighteenth century was seen to be a means whereby ordinary men and women could be made vividly aware of the consequences of criminal behaviour and thereby deterred from committing such acts by the ‘aweful’ consequences displayed before their eyes. The idea that punishment should deter persisted: ‘hard labour, hard fare and a hard bed’ was the late nineteenth-century formula. Thirdly, and increasingly from the late eighteenth century onwards, the reformative aspect of punishment was advocated. Whether through revelation or rationality, prisoners were to be transformed by the experience of prison.