[MA-WS-28]
THE ARBITRARY ELEMENT IN THE AWARD OF PUNISHMENT
To most criminals punishment comes just as illegitimate children come to women. They have done the same thing a hundred times without any bad consequences. Suddenly comes discovery, and with discovery punishment. Yet habit should make the deed for which the criminal is punished appear more excusable, for he has developed a propensity that is hard to resist. Instead of this, the criminal is punished more severely if the suspicion of habitual crime rests on him, and habit is made a valid reason against all extenuation. On the other hand, a model life, wherein crime shows up in more terrible contrast, should make the guilt appear more heavy! But here the custom is to soften the punishment. Everything is measured not from the standpoint of the criminal but from that of society and its losses and dangers. The previous utility of an individual is weighed against his one nefarious action, his previous criminality is added to that recently discovered, and punishment is thus meted out as highly as possible. But if we thus punish or reward a man’s past (for in the former case the diminution of punishment is a reward) we ought to go farther back and punish and reward the cause of his past—I mean parents, teachers, society. In many instances we shall then find the judges somehow or other sharing in the guilt. It is arbitrary to stop at the criminal himself when we punish his past: if we will not grant the absolute excusability of every crime, we should stop at each individual case and probe no farther into the past—in other words, isolate guilt and not connect it with previous actions. Otherwise we sin against logic. The teachers of free will should draw the inevitable conclusion from their doctrine of “free will” and boldly decree: “No action has a past.”