Mises Daily Articles
Theory of Crime and Punishment
[Chapter 5 of Resist Not Evil (1903)]
Those who believe in the beneficence of force have never yet agreed upon the crimes that should be forbidden, the method and extent of punishment, the purpose of punishment, or even its result. They simply agree that without force and violence social life cannot be maintained. All conceivable human actions have fallen under the disfavor of the law and found their place in penal codes: blasphemy, witchcraft, heresy, insanity, idiocy, methods of eating and drinking, the manner of worshiping the supreme being, the observance of fast days and holy days, the giving of medicine and the withholding of medicine, the relation of the sexes, the right to labor and not to labor, the method of acquiring and dispensing property, its purchase and sale, the forms of dress and manner of deportment — in fact, almost every conceivable act of man.
On the other hand, murder, robbery, pillage, and rapine have often been commended by the ruling powers; not only permitted, but, under certain conditions that seemed to work to the advantage of the ruler, this conduct has been deemed worthy of the greatest praise. The punishments for illegal acts have been as various as the crimes. Death has always been a favorite visitation for the criminal, but the means of death have varied with time and place: boiling in oil, boiling in water, burning at the stake, breaking on the wheel, strangulation, poison, feeding to wild beasts, beheading, and in fact every conceivable way down to the humane methods of electrocution and hanging by the neck until dead. Death, too, has been made the punishment for all sorts of crimes: always for the crimes of denying your maker or killing your ruler.
After death has come public flogging, standing in the stocks, ducking, maiming, down to the humane method of penning in a cage. No two sets of rulers have ever agreed upon the relative enormity of the various crimes, the sort of punishment they merited, the extent and duration of punishment, or the purpose to be accomplished by the punishment. One age has pronounced martyrs and worshiped as saints the criminals that another age has put to death.
One lawmaking body repeals the crimes that another creates. Some judges with venerable wigs have pronounced solemn sentence of death upon helpless, defenseless old women for bewitching a cat. Grave judges have even sentenced animals to death after due and impartial trial for crime. The judges who pronounced sentence of death on women for witchcraft were as learned and good as those who today pronounce sentence for conspiracy and other crimes.
It is quite as possible that another generation will look with the same horror on the subjects of our laws as we look upon those of the years that are gone. It is but a few years since a hundred different crimes were punishable with death in England, and the wise men of that day would not have believed that the empire could hold together had these extreme statutes been limited to one or two.
But however drastic the laws at different periods of civilization, they have never been so broad but what a much larger number of blameworthy acts were outside than inside the code. Neither have they ever been enforced alike on all. The powerful could generally violate them with impunity, but the net was there to ensnare the victim whom they wished to catch.
Neither has the method of determining the victim for these various laws been as accurate and scientific as is generally presumed. Sometimes it has been by torturing until the victim is made to confess; sometimes by wager of battle; and sometimes by tying the feet and hands and throwing them into a pond, when if they sank they were innocent, if they swam they were guilty and promptly put to death. The modern method of arraying a defendant in court, prosecuted by able lawyers with ample resources, tried by judges who almost invariably believe in the prisoner's guilt, defended — as is usually the case — by incompetent lawyers, and without means, is scarcely more liable to lead to correct results than the ancient forms. From the nature of things it is seldom possible to be sure about the commission of the act, and never possible to fix the moral responsibility of the person charged with crime.
For ages men have erected scaffolds, made instruments of torture, built jails, prisons, and penal institutions without end, and through all the ages a long line of suffering humanity, bound and fettered, has been marching to slaughter and condemned to living tombs; and yet human governments charged with the responsibility of the condition and lives of these weak brothers have never yet been able to agree even upon the purpose for which these pens are built. All punishment and violence is largely mixed with the feeling of revenge — from the brutal father who strikes his helpless child to the hangman who obeys the orders of the judge; with every man who lays violent unkind hands upon his fellow the prime feeling is that of hatred and revenge.
Some human being has shed his neighbor's blood; the state must take his life. In no other way can the crime be wiped away. In some inconceivable manner it is believed that when this punishment follows, justice has been done. But by no method of reasoning can it be shown that the injustice of killing one man is retrieved by the execution of another, or that the forcible taking of property is made right by confining some human being in a pen. If the law knew some method to restore a life or make good a loss to the real victim, it might be urged that justice had been done. But if taking life, or blaspheming, or destroying the property of another be an injustice, as in our short vision it seems to be, then punishing him who is supposed to be guilty of the act in no way makes just the act already done.
To punish a human being simply because he has committed a wrongful act, without any thought of good to follow, is vengeance pure and simple, and more detestable and harmful than any casual isolated crime. Apologists who have seen the horror in the thought of vengeance and still believe in violence and force when exercised by the state contend that punishment is largely for the purpose of reforming the victim. This, of course, cannot be held in those instances where death is the punishment inflicted. These victims at least have no chance to be reformed. Neither can it be seriously contended that a penal institution is a reformatory, whatever its name.
A prisoner is an outlaw, an outcast man placed beyond the pale of society and branded as unfit for the association of his fellow man; his sentence is to live in silence, to toil without recompense, to wear the badge of infamy, and, if ever permitted to see the light, to be pointed at and shunned by all who know his life.