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opinion of most persons who have watched its effects, a much more cruel form of punishment than any instantaneous death penalty.
The Chief Director of Prisons in Sweden, where capital punishment is practically never inflicted, reported a few years ago that the life prisoners under his charge complained very bitterly to him on this point. They said, "Why did you spare us from the infliction of death? You have kept us here alive. The King's clemency to us is no real mercy. On the contrary, it is the severest aggravation of our punishment."
The main obstacle in the way of the abolition of capital punishment is the difficulty of substituting any adequate penalty, which shall not be infinitely more cruel than the punishment of which it takes the place. Where the experiment has been tried, in the United States, of indeterminate sentences, murders have not only taken place inside the gaol, but have been committed by released prisoners of homicidal tendencies, who are supposed to have been reformed.
It is urged by the advocates of the abolition of capital punishment that, having regard to the large number of offences which were formerly subject to the death penalty, but which society insists shall now be treated more leniently, it is only a question of time when an enlightened public opinion will insist upon the entire removal of the death penalty from the penological system of civilised communities.
On the other hand, it is scarcely possible to say how much society may have been the gainer during the nineteenth century by the wholesale sweeping away of criminals under the drastic treatment of the sixteenth, seventeenth, and the eighteenth centuries. Morrison, a very impartial observer, says on this point:—"A great deal has been said and written both for and against the retention of this form of punishment. To set forth the argument on both sides in a fair and adequate manner would require a volume; it must, therefore, suffice to say that in the field of controversy the contest between the opposing parties is a fairly even one. In fact, looking at the matter from a purely polemical point of view the advocates of the death penalty have probably the best of it."
On the whole, we are of opinion that the time has not yet come to Australia for the abolition of the death penalty, a punishment which, by its strong hold on the public imagination, has been shown to exercise a powerful deterrent influence. In our opinion also society must be perpetually on its guard that it does not, in the interests of a mistaken humanitarianism, pursue a course of action which shall, eventually, lead to the survival of the unfittest rather than of the fittest.
Corporal Punishment.—Of all known methods of dealing with criminal offenders corporal punishment is admittedly the oldest and most primitive, and for certain offences it still retains a place in the criminal legislation of England, Scotland, Ireland, Norway, Denmark, and most, if not all, of the British colonies. On the other hand, it is excluded by the penal codes of France, Italy, Germany, Austria, Switzerland, Sweden, and even Russia, where until recent years the knout was such a prominent figure in penal instruments. Viewed in the abstract, flogging does not appear to be a particularly rational form of punishment, but on the other hand we feel that the balance of evidence is in favor of its retention, because of its supposed deterrent effect, in those cases where it is provided for in our statutes. It would therefore, we think, at present, be premature to abolish corporal punishment, which, although admittedly non-reformative, may be deterrent.
In any case we see no objection to the retention of the birch for juvenile offenders. The birching or whipping of children is permitted by the criminal laws of England, Ireland, Scotland, Norway, and Denmark, but in no other European countries. Denmark is the only country where the whipping of girls (up to the age of twelve) is permitted. On the other hand even the corporal chastisement of boys by their own parents is in Italy an offence punishable by law.
In England the bulk of the evidence taken before the Royal Commission on Reformatory and Industrial Schools supported the utility of whipping.
Punishment for Offences Within Prison Walls.—The punishments now in operation for offences within the prison walls include flogging, dark cells, and irons.
Flogging. We recommend the abolition of flogging for all prison offences.∗ As a matter of fact it has rarely been given of late years at Fremantle, except in the case of escapees, and the evidence of the visiting justices and the prison officials is unanimously against flogging escapees, where no personal violence is attempted by the escapees. Furthermore, the probability of the occurrences of serious prison offences under the separate system advocated by us is very remote.
Dark Cells.—For the reasons laid down in our First Progress Report we recommend the abolition of the dark cells. They are a relic of barbarism, and serve, no good purpose whatever.† They are chiefly brought into use for the purpose of subduing unruly prisoners, but, in our opinion, this can be much more effectually done by strict separate confinement in light cells on a bread-and-water diet.
We regret to find that (vide evidence of Mr. Fairbairn, question 900), when magistrates have ordered three days' bread and water, darks cells have invariably been made use of, not only without the special order of the magistrate, but without the knowledge of the latter.‡
Irons.—We are strongly opposed to the use of irons on prisoners in any case, and especially in the case of prisoners sentenced to death, who are now quite unnecessarily kept in irons from the moment of their sentence.
The Crank.—Among the punishments, although to some extent it comes within the category of labor, may be included the crank, which is turned by some of the prisoners for the purpose of raising water for gaol purposes.§ ‖
If our suggestions in regard to prison labor are adopted the crank can be done away with. It is a most uneconomical and ineffectual mode of employing prison labor, as all the work done by the crank could be done much more rapidly and cheaply by steam power.
∗4 "I do not approve of flogging at all in any case. I consider it has a degrading effect."—J. Lilly, J.P.
†3 "I am not in favor of the dark cell treatment at all, except in aggravated cases."—J. Lilly, J.P.
‡3 "I was not aware, until the Commission pointed it out, that dark cells were given in every case where I ordered bread and water."—R. Fairbairn, R.M.
§3 "To men of any intelligence this monotonous labor is irritating, depressing, and debasing to the mental faculties; to those already of a low type of intelligence it is too conformable to the state of mind out of which it is most desirable that they should be raised."—Sir E. Du Cane.
‖2 "I am a tailor, but for some years I have been turning a crank until I am nearly cranky myself."—Prisoner No. 10486. Question 37.
