If defendants were not regarded as moral delinquents, if the examination implied no moral condemnation, if it was only a scientific investigation as to where to place him if he is anti-social, if public opinion supported this view, then experts should be appointed by the court. On this phase of the case there would be little need of experts. I would be willing to go further and say that then, too, the partisan lawyer, the hired advocate, should disappear. The machinery of justice would be all-sufficient to take care of the liberties of every man, to give him proper treatment in disease, to restore him to freedom when safe, and, when that time does come, the unseemly contest in courts will disappear, and justice, tempered with mercy, will have a chance.
Assuming that man is justified in fixing the moral worth of his fellow; that he is justified in punishment for the purpose of making the offender suffer; and that these punishments according to the degree of severity will in some way pay for or make good the criminal act or protect or help society or prevent crime or even help the offender or someone else, what finally is the correct basis of fixing penalties?
No science, experience, or philosophy and very little humanity has ever been considered in fixing punishments. The ordinary penalties are first: fines, which generally penalize someone else more than the victim; these with the poor mean depriving families and friends of sorely needed money, and the direct and indirect consequences are sometimes small and sometimes very great. These can be readily imagined. If instead of fines a prison sentence is given, a sort of decimal system has been worked out by chance or laziness or symmetry of figures; certainly it has been done wholly regardless of science, for there is no chance to apply science when it comes to degrading men and taking away a portion of their lives. Generally ten days is the shortest. From this the court goes to twenty, then thirty, then sixty, then three months, then six months, then one year.
Why not eleven days? Why not twenty-four days? Why not forty days? Why not seventy days? Why not four months or five, or eight or nine or ten months? Is there no place between six months in jail and a year in jail? The bids at an auction or the flipping of pennies are exact sciences compared with the relation between crime and punishment and the process of arriving at the right penalty. If in the wisdom of the members of the legislature the crime calls for imprisonment in the penitentiary, then the ordinary sentences run one, two, five, ten, fifteen, twenty, thirty years, and life, according to the hazard of the legislature, the whim of the court, the gamble of the jury, or the feeling and means of expression of the unthinking and pitiless crowd who awe courts and juries with their cries for vengeance.