Garrett, G. P.

English

bepress Legal Repository

Function of Punishment

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 6 | Issue 3 Article 81915Function of PunishmentG. P. GarrettFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationG. P. Garrett, Function of Punishment, 6 J. Am. Inst. Crim. L. & Criminology 422 (May 1915 to March 1916)THE FUNCTION OF PUNISHMENT.G. P. GARRETT.'In England and in the United States, since time "whereof thememory of man runneth not to the contrary," the punishment ofcrime has been a semi-legislative, semi-judicial act. Yet, in principle,it belongs to the administrative arm of polity.So long as the scheme of government under which Englandoperated remained an apparently hapzard amalgam of political ex-pedients and historical developments the anomaly was imperceptible.When, however, Montesquieu reduced the conglomeration to theoryand principle, and separated the functions of government, as exercisedin that country, into the co-ordinated departments denominatedexecutive, legislative and judical, a vague conception of the difficultybecame possible. Yet the practice of Government in England soimperfectly distinguished and demarcated the three divisional partsthereof that the misplacement of the power of punishment was notconcretely and clearly observable.The framers of the United States Constitution, however, hardytheorists that they were, deliberately delimited the bounds of theseveral functions of their new sovereignty, and divided the one fromthe other as, of old, the waters were divided from the dry land. Andnow the faults caused by imperfect divisions of the components of thesystem became obvious. And the function of punishment stood, like anisland of administration, in the midst of the conflicting currents of thelegislature and the judiciary, a forlorn outpost beset by the combers ofthe seas. Nevertheless, as the explanation of the identity of thingsgeological has often followed long after the recognition of similarity,the fact that this little island belonged to the neighboring continenthas not been consciously recognized until today.Many years have now passed since movements in prison reformbegan, and progress has been remarkable. We have improved thesurroundings of the prisoner, and the influences that play upon himfrom within the penal institutions. We have added to his economicvalue. We have braced his self-respect. We are assuming a respon-xMember of the Bar, Kissimmee, Fla.FUNCTION OF PUNISHMENT 423sibility for his forsaken family. We are turning his labor to theadvantage of the State. We are becoming respectful of the refor-mative purpose of punishment, and scornful of the vindictive purposesthereof. That we advance may be seen by the mile posts behind us.Yet, where lies the goal?Surely, as we mount ever upward, out of the murk and mist ofbarbarism, surely we are faced towards the uplands where "faith islost in sight!"Yes, but, alas, by what a devious road! We have taken ourdirection from the past, and the past is misleading us. The mistakelies in the fact that punishment is administrative and not legislativenor judicial. The effect of the difference is infinite.And, first, let us establish our premise that punishment is ad-ministrative.The legislature, within its prerogative, deals properly withbroad principle and policy. It considers the weal of the social whole.Having formulated a policy, it may enact such general laws as conduceto the welfare of that policy. If it remains within its true sphere, itwill not deal with an individual as a separate entity. It will actupon him merely in the mass. It should not treat the individual as anindividual; but as a cell in the social organism. Such exceptions tothis principle as exist are faults in the structure of government.Therefore, when the legislature designates an act as criminal, it isperforming a proper office, for, in naming and defining crime, it createsa general rule to govern all individuals. When, however, it prescribesthe sanction, it ceases to act upon the mass, and affects the individualas a separate entity. And therein it transgresses a law of its nature.And, so of the judiciary. Its appropriate duty (in relation tocrime) is to perform one function, the determination of the guiltor innocence of the accused. An act has been made unlawful. Has thedefendant done that act? That is all that appertains to the provinceof the courts of law. Consequently, the trial should end with theverdict. Sentence is not merely superfluous (aside from its mereformal aspect as approval of the verdict), it is extra-judicial.That the power of sentence does not belong to the nisi priusjudge 'may appear an unjustified didactic conclusion. It is, however,rested upon sound argument. The object of a criminal trial is toadjudicate guilt or innocence of one act. On the other hand, the objectof sentence is according to notions now becoming current, to reformthe person convicted of having done that one act. All the evidenceadduced at the trial goes to one issue-did the man burgle, or murder,or forge? Evidence of his past life, of his past associations, or ofhis character are not relevant or competent except as enlightening424 G.P. GARRETTthat issue (and much that would illuminate that narrow issue isexcluded by precedent). Therefore, after the jury has returnedinto court, and their verdict has been read and recorded, how standsthe judge prepared to sentence this prisoner? The condemned man is,doubtless, a stranger to him. He is informed as to his antecendentsonly by the testimony offered in the case just ended. Though thefellow were a rogue of inveterate rascality, if he sat silent, nor put hischaracter in to scales of justice, the judge is ignorant of his record.The length of the term must be arbitrarily determined. Whim orcaprice or distemper allot the* years of the man's servitude. With theinformation before him, though his will be merciful, and his heartupright, and his mind learned, the judge can do naught but pullstraws. The veriest corner loafer-save for eduction, temperamentand judical experience-is the peer of the judge in awarding penalties.In knowledge of the individual case, he may be the bencher's superior.System and science are absent, for system is based upon order, andscience upon knowledge, and here is neither. Such Justice is aphantasy of ignorant disorder rather than a "triumph of principle."We will assume, then, that, as the legislature acts only on the mass,and as the courts, without another trial of each prisoner convicted,are not sufficiently informed to give sentence, the function of punish-ment lies outside the purview of the legislature and the judiciary.As a consequence, if all government is "divided into three parts,"the administrative department is the proper organ to perform thefunction. What results flow from this readjustment?The reformation of a particular person is an individual matter.As we develop psychology, and its kindred studies (such as psycho-analysis) we begin to see the roots of crime embedded in the soilof heredity and environment. The effects of the sins of the fathersbecome manifest. And, in accounting for the fact of crime, we perceivethe remedy. A careful investigation of the lives of those who havetransgressed, and an accumulation of the data that the investigationgathers, will reduce the difficulty of restoration of character. It isaccepted doctrine that all crime is traceable to conditions of heredityand environment. The cause of crime is pathological or psychologi-cal. The correction of theconditions giving rise to the crime (andthe methods of correction are growing to be understood) is the cureof the criminal. Authenticated knowledge of these conditions, is,therefore, an essential preliminary to corrective action. Whenwe haveacquired this information, the treatment, is, simply, an applicationof known laws and principles to the individual case.Pragmatically, the method is easy. We create an administrativeBoard of Punishment for each State. This board has a salaried andFUNCTION OF PUNISHMENTcompetent worker (quite as often as not, a woman) in every county.Each prisoner convicted is delivered over to the Board of Punishmentfor disposition. This Board receives a detailed report, from itsCounty representative, upon all the facts of heredity and environmentconnected with every prisoner sent up from that County. Basedupon that report, and such tests as the Board makes of its owninitiative, or through designated officers, a course of action is takenwith regard to that prisoner. When he shows the required improve-ment and a reliable independence of character he is discharged. Thelength of time that he is under discipline depends upon the growthof his character. The nature of his crime is indifferent. Yet prisonis no "fool's paradise." The prisoner is set to work. He labors onthe roads or in the fields or in the work-shops.Under this scheme all the advance methods of penology findnatural growth. Parole may flourish under it. The wages of theprisoner may be returned to his family. The numbering of convictsmay be abolished. Instruction in industrial pursuits may be given.The State will profit by road-building. Any of the systems thatclimate and local conditions favor, whether state farm, or penitentiaryindustries, or road-building may be adopted. The indeterminatesentence will reign unchallenged. And the essential descipline thatconstitutes the punishment may be maintained.It is undoubted, of course, that these things, may be broughtwithout so radical a reconstruction; but done in any other way itwill be patch work. Done after the suggested manner, it will be cor-recting the symmetry of government. For, as they are now distributed,to sentence is a judicial duty, to imprison is the duty of a limitedadministrative board, and to pardon is a supreme power of theexecutive. The reformative purpose of punishment is hampered byconflicting powers of three conflicting authorities. And, after all,are not sentence, imprisonment and pardon parts of a single ad-ministrative function?

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1378&amp;context=jclc

Function of Punishment

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Northwestern University Illinois, School of Law: Scholarly Commons