Why do we punish? Most people do not even account for the existence of this question; for them it is obvious that there are prisons, jails, in which those who have transgressed the criminal law of society are locked up, for weeks or months or years. They stroll past prisons and their existence does not bother them.
Others, whom have asked themselves that question, find it easy to answer. The consciousness of law, they say, requires retribution for injustice. In other words, they place the interest of society at large first and claim that it must protect itself from infringements on its order by deterring crime, by rehabilitating the criminal if possible, and -if this is not possible- rendering the criminal harmless(inactive).
Those who argue thusly presuppose that he, who transgresses existing criminal law, is a bad person, akin to a violator of the moral world order (moral in this sense might carry a religious connotation, as the opposite of ‘vice’), and this society, of which a majority condemns him, is a truly human(-itarian) society. Additionally they presuppose that, as though it is obvious, that rejection and the infliction of harm are the appointed actions to be carried out towards ‘criminals’.
From the bottom of our hearts we deem this to be wrong and ill-fated: a pointless delusion that maintains the existence of inhumane relationships.
It is immediately not true that our law is the one and only law; in fact it protects the propertied classes, it sanctions the current relationships of property, as if they are worth any cost of maintainance.
Self-delusion also lies deep within the conception of the convicted held by the un-convicted. Is is convenient to think like that, that most convicts are of inferior natures, and that most un-convicted are people of a better sort; but truthfully, it is not that easy. And now we are absolutely not underestimating the significance of personal predisposition, we are absolutely not saying that everything a man does depends on circumstance; but we see predisposition and circumstances constantly functioning interdependently, existing in continuous interaction. Imagine, that he who grows up as a neglected child under continuous deficiency of those things that make life worth living, grows up to be a different personality taking different actions than he who grows up under a wholly different set of circumstances; but sharing the same predispositions. Imagine that in all countries the overwhelming majority of convicts, even relative to the size of their population, belong to the non-propertied classes! If crime only stemmed from a lack of social feelings, out of lack of self control, out of malice of the heart, would this then also be true? Do the unbalanced, un-self-controlled, not exist among those who never stand before a judge? And has it not always been apparent that crime rises and falls with societal distress; that in times of crises, as now in years of war, crime rises irresistibly, resisted by no penalty clause? Do we not know that there is regularity, yes a lawful tendency, in the amount of crime and suicide that occur yearly, that we do not face random acts of standalone individuals?
Again: we do not deny that it depends on one’s personal predispositions, whether or not he becomes victim of circumstance; we do not deny the ability of the self-determining individual to deflect the effects of any and all circumstances; but we do deny those, whom have not suffered through misery, the right, to coldly and strictly demand the highest mores of those who have suffered shortages. Put more bluntly; we claim that the most moral demands, if correctly called for, will not always lead to the deference of existing law, those who have criminalized conscientious objection and certain forms of strike; on the contrary we believe that these moral commandments oftentimes require resistance against the laws themselves!
A society, virtually rooted in the struggle of all against all, that raises people with the thought that man has the right to enrich and privilege oneself at the cost of others, and in which the conditions for normal development are withheld from the the majority of people, a society like such surely creates the personal and social causes, from which crime arises ceaselessly. The personal, because they (through malnutrition, alcoholism, housing woes) foster degeneracy; the societal, because they continuously push the disinherited to take, in an almost unconscious form of resistance, through illegal means that which is kept from them through legal means. Whilst they ultimately create the principled fighters against this whole order, those who position themselves in opposition to the whole principle of the current political and economic system, the conscientious objectors, the political criminals, whom all are considered criminals by the leaders of society and whom are punished in accordance.
The right to punish is definitely not held by this society, in which there is a shortage of developmental conditions for the ordinary and of loving care for the abnormal. What the majority of its constituents applies to criminals, is egoist self defense, although in their consciousness it is veiled by many a ruse, such as the enforcement of order and of law. For any more primary(low, primal) reasons man believes it impermissible to steal or to burglar; so we punish. And this intervention in the lives of fellow humans, this confinement lasting months, to protect the proprietorship of a bunch of material goods, this, man finds awfully straightforward.
These cases make up the brunt of our prosecutions; by being guilty of these offenses the majority of our prison-population is formed!
But there are other offenses; crimes of crudity, cruelty, greed, especially of the propertied towards the property-less, sexual crimes, murder, light and heavy battery. Many will claim that in response, to cases of true crime –or rather when dealing with true criminals, or so it seems– , punishment is in any case justified.
No, the brutality of punishment does not only lie there, that the societal order, which creates the conditions of crime, which itself (by means of of war and economic exploitation) sanctions crime at large, threatens and punishes those whom violate its interests. The brutality also lies in the means of the response.
Think of the criminals, those who really needs rehabilitation. What does punishment do onto them?
The punishment suppresses them, humiliates them, robs them of their last piece of endurance. From the very start of their trial they are seen, in opposition to society, as enemies, outcasts, while they, (also, and above all the degenerates among them) are loners more than any others and more than any others need understanding. Through all of this the inner development, that follows every deed, also every misdeed, is halted. The accused braces himself against his accusers, and his inner healing process is disrupted. In essence a criminal is not treated as a person, but is processed and filed like a case. All that is granted the name of humanity(humanitarianism) is kept from him in prison; he is merely kept alive. He does not even have the oppurtunity to act on his better intentions; and this is why the rehabilitation of the criminal in prison is impossible. The prison cannot rehabilitate.
Can the prison discourage(deter)? Not really. The rise and fall of crime are primarily caused by a wholly different set of causes than by the influence of punishment; as has been shown by the wartime years; it also shows from the great number of recidivists, but above all the whole mechanism of deterrence is immoral, because it views people merely as means.
Then what about rendering prisoners harmless? This term is already shown to be unworthy. And the result of this endeavor is, that many leave prison as more harmful than entering it. This is exactly the barbarity and backwardness: the whole concept of punishment is negative. Arouse in man the good, do what you can to strengthen them, to grow in them all capabilities for positivity and development; but do not work from the premise of making them harmless. And as far as the existence of a few ‘incorrigibles’ among the criminals, in whom no good kan be aroused, whose existence is wholly subhuman, victims of degeneracy – view and treat them as the sick, and think not of punishment, like we punish the insane today.
Yet stronger than any of these goals which man aims to achieve through punishment, still lives in man the ancient principle of retribution, in which revenge has taken shelter. It calls for him who does harm to experience harm himself, it calls for all ‘debts to be paid’, to settle all the scores. The actual criminal law is merely one of its expressions; we find it in all areas of personal and societal life. Exactly this primitive principle, rooted in the instinct of revenge, is what needs to be overturned. And thus we do not only adress the ecxesses of the prison system(1), nor against the prison system itself -its unauthorization and undesirability all too clear to us- nor against the current system of punishment in its entirety. We adress the whole concept of punishment. The relationship between one man and another is not supposed to be like that, that is not how people should position themselves towards others.
In opposition to the old, ancient, doctrine, stemming from the onset of humankind, that evil must be requited with evil, and that he who does evil must be suppressed and humiliated, we pose another principle of life: Do not judge. Do not requit. Do not punish. Do not reward. But seek to create with all the power of your being a human(humanitarian) society, in which the conditions for growth and development are a given to all man; and seek to conquer evil through good, in yourself and others. Crime can only be combated indirectly; not by destroying forces, but by awakening others, through converting that, what started as destruction, into construction.
And reforms, that are currently being carried out in criminal law, do not yet follow from this new principle, thereby they do not fulfill us. Surely it was an improvement when the Child-laws were introduced and the conditional conviction; surely it will be an improvement when man finally feeds prisoners properly, and takes cares of them, when man does all that is possible to raise the endurance of prisoners, instead of having them leave the prison tired and dazed; when man breaks ties with the cellsystem(1); when the public responds to former convicts in a humanitarian fashion. But through all these improvements within the framework of current societ and of current criminal law –not all of them possible– the source of the brunt of crime is not hidden, and the old principle of punishment is not affected.
We on the other hand do not come to you, unconvicted, to raise empathy within you for the prisoners, to request a few meager improvements may be made in the way, in which you brook that they, your fellow man, ought to be treated. We adress you, unconvicted and convicted, with a call on your dignity. Unconvicted; revise your society and your conception of punishment; accused, convicted, ex-convicted, feel free to feel human.
Above all we ask for this: let man not only expect change, rehabilitation, of disposition from criminals. For what disposition shows in our relationship towards them? Is there any sacrifice, solidarity(fraternity)? It could all be so different. In a true Community there would be willingness, to help one another rise above our shortcomings; we would sacrifice any immediate concerns(interests); we would foster mutual understanding and support. We would not, like currently, pay continuous attention to ‘legal interests’, but to people, whom struggle with themselves at all times – we would know that, every time one of our own falters in battle, it is a defect in us all.
And that is why –although we will rejoice any improvement –provided it be a real one–, that is currently being carried out within criminal law and the penal system– our aspirations lie beyond: we ask for radical changes (reversals, permutations, transpositions), no partial improvements; we see the dawn of a new principle: that of a new era, of a fraternal humanity, that will break all ties with the principle of punishment.
(1) Wichman seems to make a distinction between ‘celstelsel’, cell-system, and the prison/incarceration/penal system in general. I believe ‘celstelsel’ refers to the system of punishment where prisoners are kept in individual (or small communal) cells; rather than larger wards. At the first mention of this footnote I translated ‘celstelsel’ as prison system, to make its use more general and all-encompassing. At the second mention of this footnote I translated ‘celstelsel’ as cell-system, as Wichman refered to its abolition as only marginal improvement within the larger framework of the prison system.