Criminal Sociology [39]
modified punishments to some extent, but with the definite purpose and result, as shown by the same official records of criminal statistics, of strengthening the repressive power of the law by providing for the application of less aggravated punishments. The repugnance of juries and judges against excessive punishments, and their preference for acquittal, is, indeed, a psychological law. Moreover, it is well known that if there is in Europe a penal code less mild than any of the rest, it is that of France, which is the oldest of those now in force, and still retains much of the military rigour of its origin. And it must be added that for certain crimes, as for rapes and indecent assaults, which are nevertheless constantly increasing in France, the punishments have been increased by several successive enactments. The same is true of extortion by threats of exposure, which occurs more and more frequently, as M. Joly also observes, in spite of the severe punishments of the law of 1863.
The question, therefore, is reduced to judicial repression, the progress whereof must be observed in the past half-century, for it has evidently the greatest influence upon crime. Laws, in fact, have no real operation if they are not applied more or less rigorously; for in the social strata which contribute most to criminality the laws are known only by their practical application, which is also the only truly defensive function, carrying with it a special preventive of the repetition of the crime by the person condemned.
Thus the arguments of jurists and legislators have not much value for the criminal sociologist when they are based solely on the psychological illusion that the dangerous classes trouble themselves about the shaping of a penal code, as the more instructed and less numerous classes might well do. The dangerous classes attend to the sentences of the judges, and still more to the execution of those sentences, than to the articles of a code. In this connection I cannot agree with the forecast of Garofalo as to the perilous effect of the abolition of capital punishment in Italy on the imagination of the people; for he was well aware that, though it is defined in various articles of the old code, and in about sixty sentences every year, the punishment of death has not been carried out, which is the essential point, for the last fifteen years.
The elements which determine the greater or less severity of judicial repression are of two kinds:--
1. The ratio of persons acquitted to the total number of prisoners put on their trial.
2. The ratio of the severest punishments to the total number of prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a difference in the severity of repression as such, for condemnation or acquittal ought to point merely to the certainty or otherwise of guilt, the sufficiency or insufficiency of the evidence. But, as a matter of fact, the proportional increase of convictions does partly represent greater severity on the part of the judges, and still more of the juries, who display it by attaching weight to somewhat unconvincing evidence, or in too readily admitting circumstances which tend to aggravate the offence. This is confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important, for it is a psychological law that man, in regard to punishment as to any other kind of suffering, is more affected by the certainty than by the gravity of the infliction. And it is to the credit of criminal theorists of the classical school that they have steadily maintained that a mild yet certain punishment is more effectual than one which, being severe in itself, holds out a stronger hope of escaping it. Nevertheless it is a fact that they have carried the theory too far, by seeking to obtain excessive mitigations and abbreviations of punishment, without exerting themselves to secure certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident
The question, therefore, is reduced to judicial repression, the progress whereof must be observed in the past half-century, for it has evidently the greatest influence upon crime. Laws, in fact, have no real operation if they are not applied more or less rigorously; for in the social strata which contribute most to criminality the laws are known only by their practical application, which is also the only truly defensive function, carrying with it a special preventive of the repetition of the crime by the person condemned.
Thus the arguments of jurists and legislators have not much value for the criminal sociologist when they are based solely on the psychological illusion that the dangerous classes trouble themselves about the shaping of a penal code, as the more instructed and less numerous classes might well do. The dangerous classes attend to the sentences of the judges, and still more to the execution of those sentences, than to the articles of a code. In this connection I cannot agree with the forecast of Garofalo as to the perilous effect of the abolition of capital punishment in Italy on the imagination of the people; for he was well aware that, though it is defined in various articles of the old code, and in about sixty sentences every year, the punishment of death has not been carried out, which is the essential point, for the last fifteen years.
The elements which determine the greater or less severity of judicial repression are of two kinds:--
1. The ratio of persons acquitted to the total number of prisoners put on their trial.
2. The ratio of the severest punishments to the total number of prisoners condemned.
Certainly the proportion of acquittals ought not to indicate a difference in the severity of repression as such, for condemnation or acquittal ought to point merely to the certainty or otherwise of guilt, the sufficiency or insufficiency of the evidence. But, as a matter of fact, the proportional increase of convictions does partly represent greater severity on the part of the judges, and still more of the juries, who display it by attaching weight to somewhat unconvincing evidence, or in too readily admitting circumstances which tend to aggravate the offence. This is confirmed also by the rarity of acquittals in cases of contumacy.
Of these two factors the former is certainly the more important, for it is a psychological law that man, in regard to punishment as to any other kind of suffering, is more affected by the certainty than by the gravity of the infliction. And it is to the credit of criminal theorists of the classical school that they have steadily maintained that a mild yet certain punishment is more effectual than one which, being severe in itself, holds out a stronger hope of escaping it. Nevertheless it is a fact that they have carried the theory too far, by seeking to obtain excessive mitigations and abbreviations of punishment, without exerting themselves to secure certainty by reforms of procedure and police administration.
The diminution of the rate of acquittal is evident