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UNIV. OF MICH.
SOME GENERAL OBSERVATIONS ON
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1893
THE PENALTY OF DEATH.
BY WILLIAM TALLACK.—1893.
Issued by the HOWARD ASSOCIATION, Bishopsgate Without, London.
A primary object to be kept in view, in considering the question of
Capital Punishment, is the nature of its ultimate and general tendency,
whether to increase or decrease homicidal crime. And in connection with
this, constant regard must be had to that fundamental principle of Penology,
that certainty is a more efficacious element in punishment than extreme
severity.
A regards the presumptively deterrent character of the Death Penalty
ther is great diversity of opinion amongst practical persons. Indeed, abso-
lately opposite conclusions have repeatedly been arrived at by men of similar
authority and experience. For example, the eminent jurist, SIR J. FITZJAMES
STEPHEN, declared before the ROYAL COMMISSION of 1865—“I think that
Capital Punishment deters people from crime more than any other punish-
ment, and that it deters them in two ways. I think that the effect of it is
appreciable—and in some cases considerable—in a direct and ordinary manner ;
that is to say, when a man is going to commit a crime, he thinks, 'If I do
this, I shall be hanged for it.' But besides that, there is a secondary effect
of Capital Punishment. People are aware that murder is punishable by an
ignominious expulsion from the world. They therefore get to consider
murder as a very dreadful thing." Another experienced Judge, SIR GEORGE
DENMAN, told the same Royal Commission, "My own feeling is that the law
of Capital Punishment, as it exists, does not operate at all; and that if you
take the various classes of murderers, there is more, on the whole, done
by Capital Punishment to induce murders, than there is to prevent them."
Now, unquestionably, there is some ground for each of these diverse
opinions. But the writer ventures to think that they are reconcilable both
with each other, and with a final conclusion as to the weakness of Capital
Punishment, when the following consideration, urged in his own evidence
before the same COMMISSION, is taken into account. He said :—“ I believe
that the punishment of death is the most deterrent punishment possible
to a certain class of minds, provided it be inflicted with absolute certainty;
but I submit that that is merely an imaginative and theoretical condition,
and that Capital Punishment never is, never has been, and we may
reasonably conclude never will be, inflicted with absolute certainty."
"But (he added) on the other hand, I would also submit that there
is another class of crime which altogether precludes the idea of any efficacious
deterrence at all. I allude to the large proportion of homicidal crime which
is committed under the influence of over-mastering passion, drunkenness,
rage, or jealousy; there the argument of deterrence, which I admit in certain
other cases, cannot apply at all.”
If the punishment of death could be inflicted with as much certainty as
prolonged imprisonmeut, then it might be more deterrent than the latter.
But, as a matter of simple fact and experience, the world over, a number
of circumstances, special to this particular penalty, conspire to render its
infliction uncertain in a most extraordinary degree.
most extraordinary degree. Even in GREAT
BRITAIN, where, perhaps, the law is carried out with less uncertainty than
elsewhere, only about 25 per cent. of convictions result from committals for
trial in capital cases; and then, further, nearly half of these convictions are
finally followed by commutations. In other countries, generally, a still
smaller proportion of executions result. The official statistics of the various
nations prove this clearly and strikingly.
Whence comes this peculiar obstacle contributed by this one penalty
to its own enforcement? From several sources. Partly because it is a
fatal and irreversible punishment. Hence the highest degree of certainty
in evidence is reasonably demanded by jurors and by public opinion, in
murder cases, where, at the same time, there is usually less certainty of
evidence procurable than with any other crime. For murders are generally
committed in secret, and the only real witness, the victim, is destroyed in
most instances. So that where the most direct testimony is needful, only
indirect or circumstantial evidence is, in general, obtainable as to the simple-
matter of fact.
In spite of the utmost care, it is known that even the strongest circum-
stantial evidence has sometimes led to the conviction and death of absolutely
innocent persons.
There is much reason to conclude that, for example,
Wiggins, hanged in London in 1867, Hayes and Stone, of Durham, 1873,
and two of the three men hanged at Leicester in 1877, with various others
recently executed in foreign countries, were put to death by mistake. Obers
have been saved, after sentence, as bý a hair's breadth, and ultimately showr
to have been innocent, as in the cases of Polizzioni, of London, Habron, of
Manchester, 1876, Alice Rhodes, of Penge, 1877, W. Siddle, of Durham,
1884, Travis, of Cheshire, 1889, and many more.
Again, even where the fact of murder may be clear enough, the
deadly issue of the penalty often raises special pleas as to just responsi-
bility, in connection with homicidal insanity. For it is an unquestionable
matter of scientific demonstration that insanity and homicidal tendencies are
peculiarly and frequently associated. The late DR. WILLIAM GUY, F.R.S.
(Vice-President of the Statistical Society), published a comprehensive series
of observations extending over thirty years, and proving his conclusion that,
Insanity plays a conspicuous part in the terrible drama of homicide." He
shows that whereas the proportion of insane persons is less than two to every
thousand of the whole population of England and Wales, the ratio of insane
to sane criminals in general is 57 per 1,000, but that amongst the particular
class of criminals committed for murder, the proportion found insane is 145
per 1,000 (or 14 per cent.).
66
Juries who would willingly consign such unfortunate persons to pro-
longed confinement in a Lunatic Asylum, or even in a Prison, naturally
shrink from finding a verdict which would send them to a death on the
scaffold, with its shame and horror. In such instances, again, the Capital
Penalty often seriously defeats its own object.
And, in general, evidence is reasonably deemed sufficient to warrant a
verdict resulting in imprisonment, when the same may not be felt to be
adequate for a fatal and irreversible decision. In the event of subsequently
discovered error, as to the former decision, some compensation can be made
to the innocent, but not so in the latter case. Years ago, five men were
arraigned before an English jury for a very atrocious murder. To the
public astonishment and indignation, they were acquitted. One of the jury,
on being privately remonstrated with, replied in substance, "We were almost
certain of the guilt of the accused, but not quite. The law did not permit
us to return a verdict of manslaughter, involving imprisonment. That we
would have given. But we felt that nothing short of absolute certainty,
which was unattainable under the circumstances of the case, would justify
us in consigning five men to the irrevocable destiny of death. We, therefore,
had no alternative, but to acquit them." A similar result has occurred
in many cases.
Thus the capital penalty tends to promote the escape of the
guilty, and so to encourage murder.
THE UNIVERSITY OF MICHIGAN LIBRAND
In other words, the superior deterrence which, it may be admitted,
attaches, in the abstract, to the death penalty, is practically counteracted, or
nullified, by its unavoidable and special uncertainty of enforcement. That
is to say, it has the (penologically) fatal defect of being very weak in
action; whereas the crime of murder should have the most vigorously certain
repression.
Even the special notoriety attendant on Executions and Capital Trials
has a great attraction for many criminals, whose morbid vanity is excessive.
But no such mischievous interest attaches to imprisonment. In the autumn
of 1889, immense popular excitement was aroused by the death-sentences
passed on a woman at Liverpool, and on a youth at Glasgow. Scores of
thousands of persons signed petitions for commutations of those two sentences.
When they were commuted, the excitement almost immediately disappeared.
No other penalty, but that of death, produces such pernicious popular interest
in murderers, or such interference with the enforcement of law. But this is
inevitable whilst that particular penalty is retained.
An habitual prison visitor, remarks, as to the presumed superior deter-
rence of this punishment, in a book published by Messrs. Blackwood (Edin-
burgh, 1889), entitled "SCENES FROM A SILENT WORLD":"We desire
to state, in the strongest words we can use, that this argument in favour of
the death penalty is absolutely and radically false. We do not make this
assertion without warrant; our practical experience has been very extensive.
Crimes of violence are for the most part committed, in the blind heat of
passion, by persons who never give a thought to the penal consequences of
the deeds to which they are driven by the frenzy of the moment. Apart,
however, from this, there remains the fact, which we cannot assert too
emphatically, that death is not the punishment which lawless men dread the
most. Such men often fiercely desire death. They seek it; they look
forward to it as the cure for all mortal ills-the sure and painless refuge from
the agony of life.”
In confirmation of the latter statement, it is noteworthy that the
statistics of Suicide show that the number of persons who kill themselves
are many times more than those who kill others.
No system whatever can be free from some difficulty or disadvantage,
but there is much experimental reason to conclude that the punishment for
murder which will best promote convictions, by securing the greatest
attainable certainty of infliction, and with decidedly advantageous influences
on the penal discipline of the criminal, is TWENTY YEARS' IMPRISONMENT,
in safe seclusion, though not in absolute solitude. Cellular separation is one
of the fundamental essentials for reformatory, as well as deterrent imprison-
ment, for short terms of confinement (even up to two or three years), but it
is a positive barbarism if continued during life, or for long periods. In fact,
such imprisonment may become simply another and worse mode of inflicting
Capital Punishment, as "by inches."
A fairly practicable substitute for Capital Punishment has long been.
adopted, by several nations, for the great majority of murderers. Even in
GREAT BRITAIN, for example, this substitute is already resorted to, for nearly
half of the murderers. And in Great Britain, the life-sentences, or capital
sentences commuted to life-imprisonment, are systematically brought under
revision, after twenty years' confinement, with a view to consider the propriety,
or otherwise, of liberation. In certain prisons in Holland, Belgium, Germany,
Sweden, Norway, &c., may be found many murderers, in good health of body
and mind, who have been under restriction for periods of twenty years and
upwards. Such prisoners are more, rather than less, amenable to discipline than
others. And it is is the rarest occurrence for them to assault their cus-
todians. In PORTUGAL twenty years is the definite term awarded in lieu of
Capital Punishment. This term is, in most cases, virtually a life sentence
whilst holding out a ray of hope to nearly all subjected to it. Thus

facilitates the discipline of the imprisoned, and also removes those difficulties
in the way of conviction, which, as already shown, are inseparable from the
capital penalty.
It is important to observe that in the countries which have adopted
prolonged imprisonment, under reasonable conditions, as the punishment for
murder, that crime has not increased in frequency, whereas the convictions
erpetrators have materially increased. In HOLLAND no execution
place since 1860; in BELGIUM none since 1863; in FINLAND none
since 1824; in ITALY none since 1876; in PORTUGAL none since 1843.
Several AMERICAN STATES have also abolished the death penalty.
ITALY, however, has not adopted other measures needful to diminish
murder. SWITZERLAND abolished Capital Punishment, and in 1879 accorded
permission to the cantons to reimpose it. But scarcely any executions, if
indeed any at all, have taken place in that country since the nominal
restoration of the penalty.
Much may doubtless be adduced in favour of, and in opposition to,
either the death penalty, or its abolition; but, on balance, there appears
a decided superiority of practical advantage in favour of the latter.
THE BIBLE also is often appealed to in both directions; and it may fairly
be quoted on either side. The Old Testament unquestionably permitte
Capital Punishment for murder ud for other crimes. But there were no
suitable prisons, as a substitute, in those days. The New Testament did not
expressly condemn the death penalty, yet neither did it expressly condemn
SLAVERY, or POLYGAMY. But its spirit is opposed to these.
The general
Scriptural argument on this subject may be narrowed to this simple point:
Is it right to put men to death, unless experience proves that it is absolutely
necessary to do so? Then the solution must depend upon the verdict of
experience and history. God spared the life of the first murderer, though
punishing him effectually. The Redeemer declared that He came
destroy men's lives, but to save them," both for time and eternity.
•
"not to
Lastly, it needs to be remembered that punishment, of whatever kind, is
merely one out of many elements, in the suppression of murder, as of other
crimes. The countries where murders are comparatively few are those
where the two great influences of PREVENTION AND PUNISHMENT are each
rendered efficacious. Of these the former is very much the more powerful.
PREVENTION is chiefly secured by the promotion of RELIGION, EDUCATION,
TEMPERANCE, and the prohibition of the use of WEAPONS by private
citizens. Even in England an appreciable proportion of the murders and
homicides perpetrated were shown by a Parliamentary paper (issued in
1893) to have been done by persons carrying pistols.
The districts where there are most murders are those where private
citizens habitually carry weapons; or where drunkenness specially prevails;
where punishment, of whatever nature, is comparatively uncertain; or where
ecclesiastical absolution is easily obtainable. Such countries are Corsica,
Spain, Italy, the Levant, and the Southern States of America, where weapons
are habitually carried by private persons. Capital Punishment is retained
equally in Massachusetts and in Texas; but the difference in the amount of
homicide in the two States is immense, owing to the free use, in the latter,
of the pistol and bowie knife. There are several hundred "lynchings
annually in the United States; and nearly all of these occur in districts
where the death penalty is retained. Preventive means are far more
efficacious, everywhere, than those of a merely punitory character.
UNIVERSITY OF MICHIGAN
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