morality, habit or education, instead of fear of consequences. The detention and the reformatory discipline are no more punishments than the strait-jacket of the asylum. The strict theory of reformation regards the offender as a moral invalid, who cannot help his offenses and whom no penalty will deter. The reformatory is thus a hospital of psychiatry and its punishments are mere hospital discipline. It is therefore not a form of control by intimidation.
The second object in dealing with the offender, viz., protection against other evil-disposed men, is attained by punishment. While the barbarous idea of retribution has dominated the use of punishment in the past, and even today enjoys high repute in some quarters through the support of certain theological and pseudo-ethical dogmas, it is not too much to declare that the sole sociological justification for afflictive punishment is its deterrent effect. Though the satisfaction of giving a ruffian his just dues, may supply an important motive to the enforcement of law, science can see no other ground for inflicting pain than the protection of the group. If it were possible to spare and seclude the offender, while keeping the public in the firm conviction that the penalty will surely be inflicted in every case, punishment could not appear other than wanton cruelty. This idea of deterrence or control by dread crops out through the whole series of repressive instruments used by society. In damages the idea is hidden simply because sufficient deterrence can be got by enforcing compensation to the injured party. In exemplary damages the idea of deterrence becomes obvious, but is not allowed to appear as the ruling motive.[1] In penalties such as fines or forced labor the aim of deterrence overshadows the reparative idea and in afflictive punishments, such as whipping or hanging, it rules alone.
Getting rid of the idea of retribution permits the exemplariness of punishments to be emphasized. If inflicted for the evil--
- ↑ In exemplary damages, the sociological idea of deterrence had to slip in under moral guise. "In other jurisdictions the same end (exemplariness) is accomplished by allowing compensation for the sense of wrong and injury . . . . " Sedgwick, Elements of Damages, p. 16.
