Instead of the Gallows
By GILES PLAYFAIR
WHAT is to replace the death penalty? In a television interview before the second reading of his new Bill, Mr. Silverman remarked that capital punishment was an 'obscenity' which he would none the less have to tolerate, if it served any practical social pur- pose. And one got the impression from the en- suing House of Commons debate that deterrence
remains the central, if not the only decisive, point at issue.
But one may suspect that the tediously repeti- tive and long-drawn-out dispute about the deter- rent effectiveness of hanging has involved a considerable amount of self-deception on both sides. It has never risen much above the infantile level of 'tis, The retentionist case has been largely equated with the views of distinguished servants of the law, but these views, however weightily uttered, are essentially 'hunches' and don't appear to have more objective validity than the superstitions of butchers, bakers and candlestick-makers. On the other hand, the statistical evidence from abroad, which aboli- tionists rely on, can't stand up to close analysis. It may be a mere invitation to confuse cause and effect.
Shaw once observed that the greatest deterrent against wrong-doing is not man-made, but God- given : the human conscience. And though it is doubtless true that there are some potential murderers who don't become actual ones out of fear of the possible legal consequences, the only intellectually honest answer to the questions of who, precisely, these people are and how severe, as opposed to how certain. a penal sanc- tion needs to be to keep them in check, is 'don't know.
Conceivably, a thorough, long-term, scientific investigation on the Kinsey scale might produce sufficiently reliable information upon which to base a conclusion. But the fact that such an in- vestigation has never been undertaken nor, as far as I am aware, proposed by any parliamentary spokesman for or against the abolition of hanging may suggest that both sides are, unconsciously, afraid of reaching the truth of the matter and that the whole argument has, from the beginning, been a complete, total, irrelevance.
One thing at least is historically certain. Deter- rent effectiveness, real or imagined, does not in the long run provide justification enough for using any particular form of punishment against any particular form of crime. Otherwise, we might, for instance, still be boiling certain male- factors alive: a penalty that was, in fact, abolished as long ago as the fifteenth century, because it was held to have a degrading influence on the onlookers.
That last example may be regarded as too remote to be taken seriously, but it was the deterrent theory, after all, which provided the humanitarian reformers of the Age of Enlighten- ment with the means of substituting the prison system for the wholesale violence and brutality of criminal justice in their time. Yet, grossly cruel though that system turned out to be, Bentham himself realised it could not be cruel enough to serve every deterrent need, and advo- cated a degree of deception. He suggested that prison buildings should be made to look so terri- fying from the outside that people passing them would believe life behind the walls to be a more torturous experience than any civilised society would actually permit. To that view, evidently, we owe these monstrous fortresses which we can't (or won't) afford to replace, despite the fact that penal administrators now consider them entirely unsuited to a rehabilitative programme.
Even so, there have been prison reforms in comparatively recent times that one cannot imagine being undone. Why was the tread-wheel abolished? And solitary confinement? And per- petual silence? It is true that these and like measures, as Bentham predicted, failed to terror- ise hardened criminals into repentance. But there is no evidence that they were ineffective in deter- ring potential law-breakers. On the contrary, between 1878 and 1898, when the English prisdn system under the Du Cane regime was at its most harshly punitive, with the policy of 'hard labour, hard fare and a hard bed' in full force, the general crime rate steadily fell. Since the problem of the hardened criminal appears to be no nearer solution than it ever was, and the general crime rate is rising, what objection could there be, if we were in earnest about deterrence, to reintroducing the tread-wheel and the rest? The answer is that 'such a step would be con- sidered intolerably retrograde, for while the deterrent and purely retributive instruments of criminal justiCe are in practice indistinguishablet, retribution has during the past fifty years an more been falling into gradual disrepute.
Viewed in this light, hanging may be seen as an anachronism which sooner or later was always bound to go. Nor is contemporary penological thought engaged in a search for new ant morally acceptable deterrents against murder or any other serious social transgression. Theoretically, prevention by means of punishment to fit the crime has been rejected in favour of prevention through the treatment and rehabilitation of individual offenders. Penal policy is moving towards the concept of, dealing, in Lady Wootton's words, with 'each according to his need rather than according to his deserts.'
But that goal has by no means been reached. There is still not a prison in the country, that can reasonably be regarded as more a treatment centre than a negatively punitive institution, with the exception of Grendon Underwood, which has room for only 350 inmates; and though the prison system as a whole is a great deal less oppressively administered than it used to be, it has not yet been purged of all its needlessly de- structive cruelties. Nor can it, in fact, be wholly or even primarily dedicated to rehabilitation unless and until punishment for punishment's sake ceases to be an objective of the criminal law.
The death penalty, obviously enough, has.been an obstacle in the way of progress, since it sym- bolises the negation of a curative approach to crime prevention. But its removal won't make much of an advance possible, if the price aboli- tionists are eventually willing to pay is agreement to some supposedly deterrent alternative, such as a gargantuan fixed term of punitive imprison- ment to be imposed at judicial discretion on the basis of 'deserts.' The, only murderer of my acquaintance is a convinced retentionist as a result of spending forty-five years in the State Penitentiary of Minnesota: at least thirty years longer than was required for his complete re- habilitation.
On the other hand, if Mr. Silverman's Bill goes through unamended, it will point the way to fur- ther reform. An automatic sentence of life im- prisonment is presumably a deterrent in the sense that anyone capable of assessing consequences must fear indefinite confinement. But it also leaves room for the establishment of a principle vital to the concept of treating offenders, con- victed of murder or, indeed. of other serious crimes, according to their needs rather than punishing them according to their deserts: namely, that they can be deprived of their liberty for as long as this is necessary to protect society —and for no longer.
The issue of the death penalty may already be as good as settled. What remains to be seen is whether this marks an end in itself—or an end to the beginning of a radically new penal policy.
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