THE PROBLEM OF CAPITAL PUNISHMENT. E VERY notorious murder trial revives
the contro- versy about capital punishment. It is quite illogical, but so it is. It is illogical because the murderers who attract most notoriety to themselves are generally of the worst kind. They are the least deserving of sympathy, and they become notorious only because they have displayed remarkable ingenuity or cold calculation in their crimes or have perhaps surrounded themselves with some sort of evil glamour which is unfortunately a neighbour to romance. The murderer who comes nearest to deserving sympathy or pity very often gets none.
Such, however, is the way in which matters are managed by our sentimentalists. It has often amazed us how little room seems to be left for pity for the victim when a flood of sentimental sympathy with the murderer has been let loose. Yet no reasonable' person who believes that it is necessary to maintain capital punishment in certain cases has any wish to see revenge taken upon the criminal. He knows that that would be useless and stupid and un- worthy of a civilized people. His austere doctrine is con- cerned solely with the protection of society. He at least is capable of pity with a wide range, and he thinks of the many possible victims—some of them utterly defenceless and lonely people—of those violent persons who might become murderers if they were not restrained by fear. He regards murder as a thing apart, as the most anti-social of all crimes—a crime against which it is impossible in the ordinary way to provide material safeguards. The only real safeguard is a strong public detestation of murder.
It is such a state of public opinion that capital punish- ment is designed to create. Only about a hundred years ago death was the punishment for other crimes besides murder ; but as judges and magistrates refused, quite rightly, to inflict the supreme penalty for minor offences the law was in danger of becoming farcical. Then it was decided, while altering the law as regards the smaller offences, to retain capital punishment for one crime only —murder. It was retained on the principle partly that murder, as we have said, is a crime by itself and partly that a murderer ought to be removed since he had shown himself unfitted for communal life. If anyone wants to see the result of letting public opinion about the sanctity of human life grow slack, he need look no further than Ireland.
Many of us would willingly see capital punishment abolished even for murder if we could be assured that it is, as some declare, no deterrent, and if a sufficiently strong public opinion about the particular horror of murder could be sustained by some other means. We are bound to say that the sentimentalists by their very excesses make it extremely difficult to consider any reform on sane lines. We remember reading a few years ago an article by a well-known writer who furiously denounced the hypocrisy and barbarity of a country which inflicted the death-penalty while calling itself civilized and Christian. He drew a lurid picture of the long-drawn-out suspense of the trial and of the torture inflicted upon the unhappy murderer while awaiting execution. Although he found a particular savagery in the course of justice, his nerves broke down altogether when he thought of the " platform " and the " lever " of the scaffold. Finally, he recommended that if such a barbarous country as ours should insist upon capital punishment murderers should at least be allowed to choose the form, and withinreason the time, of their death. With the illogicality of a violent emotionalism he trans- ferred, as will be seen, what was to him the terror of sudden death to the instruments of that form of death, though those instruments are not in themselves more terrible than any other means of procuring death. Why should a lever be more terrible than a trigger, or a bottle, or a window out of which one might jump ? Of course, it is not. So far as we know, what is to-day called hanging is an instantaneous, painless death. Strictly, of course, it is not hanging at all. As for allowing murderers to choose their own form of death, that would be to allow them a privilege denied to all other persons. Nobody, even though suffering the tortures of a long and agonizing illness, is allowed, without breaking the law, quietly to do away with himself. Yet it was gravely proposed by this respected writer that the murderer alone should be allowed the right of euthanasia. To secure that right you would only have to commit murder !
Another example of the sentimentality which makes ' more difficult the path of those who are not indisposed to consider the possibility of a change was provided by a message sent to the Daily Herald on Tuesday by Mr. Ramsay MacDonald. Writing of the execution of the Ilford murderers he said,. " Every decent person must protest against society being further injured in those delicately poised emotions where madness and divinity come so closely in contact, by the unloosing of the mad brute of passion and the senseless appeal to animal cruelty as a protection. . . . These executions disgrace our country, injure our people and influence the criminal instincts of unbalanced and passionate minds." What sense there is in Mr. MacDonald's words resides in the last sentence. It is possible that the terrible outpouring of sensationalism, with all its vulgarity and sickening detail, which is unloosed by notorious murder- trials, makes unbalanced minds rush nearer to crime rather than further away. We do not ourselves believe this, but we admit that it is a matter for argument and inves- tigation. Unsavoury and discreditable though the " writing-up " of murder trials is, and ghoulish though the attitude of half the spectators in the court undoubtedly is, it is probable that the public horror of murder is intensified rather than diminished by these means.
Nevertheless, when we have stated as fairly as we can the reasons for capital punishment and have deprecated the unhelpful effusions of the sentimentalists, it must be acknowledged that public opinion has for some time been inclining against the death penalty. Any close observer, we think, must be aware of this, whether he be glad or sorry. British public opinion is usually so right in the long run that we are always ready to consider it seriously for its own sake. The principal reasons fora growing feeling against capital punishment are probably : (1) a sense that the death penalty is irrevocable, and that it would be better that no irrevocable nunishrnent should be inflicted ; (2) a suspicion that murderers are moved by such abnormal impulses that even the fear of capital punishment does not deter them ; and (8) the feeling of repulsion that the vast majority of people have at the idea of hanging women. As regards the third point, we should like to say something. The widespread feeling against hanging women places us all before a dilemma. Within the last few years women have won for themselves virtually full political and legal equality with men.
Would not a differentiation between the punishments Inflicted on men and women therefore be a crass illogi- cality ? We fear that it would. We can quite under- stand the attitude of some women writers who have lately explained that in the matter of punishment they do not desire any privileges. Until Tuesday a woman had not been hanged in Great Britain for about fifteen years, and there was a current notion that for women the death penalty had lapsed. Of course, there was no reason for this idea. The Home Secretary considered the case of Mrs. Thompson, as he was bound to do, purely on its merits. All the same, the disinclination to have women hanged is an essential part of the growing dislike of capital punishment.
We would suggest, therefore, that the time has come for an inquiry. We hope that a Commission or Committee will be appointed. Is the fear of capital punishment really a deterrent ? Can a wholesome public opinion about the supreme infamy of murder be cultivated except by the retention of capital punishment ? Would it be possible to change The law so as to recognize degrees in murder ? Such questions as these should be the subject of inquiry.
The recognition of degrees in murder would, of course, be only a refining upon the present distinction between murder and manslaughter. That there are degrees in murder is obvious. Take the case of an unmarried mother who in a dazed and hysterical condition does away with her baby, not knowing what she does. As the law stands the sentence of death must be passed upon her- just as much as upon the most deliberate and bestial murderer.
Yet everybody knows that the sentence will not be carried out. We have read that Lord Brampton on one occasion when sentencing a woman in such circumstances mumbled the death sentence on purpose so inaudibly that the woman could not possibly understand what was being said. The labours of a Commission need not be long but they might well be decisive. There must be much infor- mation accessible yet not generally known about the deterrent quality or the reverse of capital punishment. Certain European countries, including France, abolished it but reinstituted it. We should like to know why. Was it found that in the absence of capital punishment crimes of violence increased ? We suppose that that must have been the reason, but we have never been able to come by any statistics on the subject. The evidence of Governors of prisons, warders, criminal lawyers, crimino- logists and students of our penal system would also be invaluable. In Denmark, we believe, murder is punished by flogging plus penal servitude for life. Evidently it is felt necessary to make the punishment heavier than for any other crime. For our part, we would rather be hanged.
Nobody likes capital punishment for its own sake. All we say is that it has been retained for a reputable reason and that it should hold the field until some equally valid means of impressing the human mind and deterring people who are apt to violence can be indicated as a substitute. But even so a Commission might recommend that degrees in murder should be recognized and that the death penalty should be confined to those few who may be proved guilty of murder in the first degree.
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