With the criminal and most degraded class—with those who are actuated by violent passions and hereditary taints, the class by which most murders are committed—the death punishment would seem to be useless as an intimidation or an example.
With the majority it is more than probable that it exercises a strong and beneficial influence. As no mere social distinction can eradicate innate instincts, there must be a large proportion of the majority, the better-to-do, who are both occasionally and habitually subject to criminal propensities, and who shall say how many of these are restrained from the worst of crimes by fear of capital punishment and its consequences?
On these grounds, if they be not fallacious, the retention of capital punishment may be justified.
Secondly. Is the assumption tenable that no other penalty makes so strong an impression or is so pre-eminently exemplary? Bentham thus answers the question: ‘It appears to me that the contemplation of perpetual imprisonment, accompanied with hard labour and occasional solitary confinement, would produce a deeper impression on the minds of persons in whom it is more eminently desirable that that impression should be produced than even death itself. . . . All that renders death less formidable to them renders laborious restraint proportionably more irksome.’ There is doubtless a certain measure of truth in these remarks. But Bentham is here speaking of the degraded class; and is it likely that such would reflect seriously upon what they never see and only know by hearsay? Think how feeble are their powers of imagination and reflection, how little they would be impressed by such additional seventies as ‘occasional solitary confinement,’ the occurrence and the effects of which would be known to no one outside the jail.
As to the ‘majority,’ the higher classes, the fact that men are often imprisoned for offences—political and others—which they are proud to suffer for, would always attenuate the ignominy attached to ‘imprisonment.’ And were this the only penalty for all crimes, for first-class misdemeanants and for the most atrocious of criminals alike, the distinction would not be very finely drawn by the interested; at the most, the severest treatment as an alternative to capital punishment would always savour of extenuating circumstances.