Inherent and Acquired Difficulties in the Administration of Punitive Justice

Abstract

That there is a general and well-grounded dissatisfaction with the administration of punitive justice in America, I shall take for granted. It is, if I may say so, a condition, not a theory. The criminologist complains that whereas the fear of punishment does not restrain crime, it is none the less the chief reliance of law for protecting society; that whereas his science has shown the necessity of special institutions with expert management for many classes of delinquents, the legal theory of ideal equality before the law leads criminal law to consign all offenders to a common prison; that whereas he has “demonstrated positively that crime is a disease,” the law persistently deals with the criminal as a normal person. The sociologist complains that whereas the true purpose of punishment is protection of society, the basis of judicial punishment is revenge; that whereas the rights of society ought to be borne in mind continually, the law looks chiefly at individual rights; that whereas sociology has shown the necessity of study of the actual criminal, the law deals with him in the abstract and speculates over responsibility; that whereas the certainty, not the severity of punishment operates as a deterrent and protects society, the law provides for the latter and takes scant account of the former. The plain citizen who, without scientific investigation, knows only that he pays taxes to maintain prisons, courts, sheriffs, constables, police, and public prosecutors, complains that notwithstanding the enormous cost—said to amount the world over to $400,000,000 annually—society is not protected, crimes are not punished, and lawlessness is general.