Rights In Civil Society
Appendix 10. (2509).
There are very serious philosophers who maintain not only that penalties are unsuitable for preventing the rare cases of crime into which weak human nature plunges (the more depraved a people is, the more this happens), but that multiplying and stressing the rigour of their punishment sometimes produces an effect opposite to that intended. Seneca, for instance, states (De clementia, bk. 1, c. 23-24):
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Moreover, you will often see frequent punishment of crime followed by frequent outbreaks of the same crime. — Where people are rarely punished, there is a kind of consensus about innocence, which is favoured as a kind of public good. Let a City think it is innocent, and it will be. There is more anger about people who turn away from upright conduct when they are seen to be few. I think it is dangerous to show a City how many evils exist in it. — The human spirit is obstinate by nature. It tends towards what is contrary and rash, and follows more easily than it is led. |
These are profound, beautiful thoughts. Punishment, therefore, and the manner of administering penal justice, must be so tempered that:
1. it does not educate people to commit crime; 2. it does not darken the imagination with too many examples of wickedness (images are principles of instincts and of actions); 3. it does not accustom people to over-frequent examples of serious corporal punishment (punishment loses its terror and is more easily undergone when many suffer together); 4. it does not give rise in the social body to an exaggerated persuasion of wickedness (this provides the body with a low image of itself and weakens its moral forces — when society has a good opinion of itself, it senses the price of its own moral dignity which it feels honoured to preserve); finally, 5. it does not provoke human sensitivity which is more forceful where it finds greater resistance and intolerance.
What should we say, therefore, about the publication in the press of complete criminal trials? — There is no doubt that it opens to the whole nation a very ominous school of crime. — But surely, publicity assures better justice in the trial? — It may be that publicity will be favourable to the guilty party, or it may be thought that it will provide an incentive to unprejudiced action on the part of judges if the arguments for or against are made public, even contrary to the guilty party's wishes. These are matters which we can let pass. There is nothing, however, which justifies to my eyes the detailed circumstances in which newspapers reporting trials put the most horrible turpitude and wickedness committed in a nation before the eyes of adults and even of children who have scarcely learnt to read. Yes, let the guilty person who thinks he has been treated unjustly by the courts publish his entire trial in the newspapers. This will be his appeal to public opinion, the truly supreme tribunal of civilised nations, which can restore his honour and bring shame upon unjust or ignorant judges. But publishing the trial without any request from the guilty party, or even against his will, is both fatal to public decency and unjust towards the guilty person whose punishment is increased by consequent notoriety. It is an invitation to lay aside shame forever because it prevents any possible restoration of honour whatever efforts are made at emendation.