Furthermore, can we say that the sentence of the judge is proportioned to the heinousness of the deed? Is the murderer who in a fit of uncontrolled passion has taken a human life—it may have been his first and only crime—necessarily more depraved than the thief; or is the thief in jail who has indeed broken the law, necessarily more depraved than numbers of others who have dexterously circumvented the law, violating the spirit though keeping within the letter of it? Is even the abject creature who strikes his wife more abandoned than a man of the type of Grandcourt in "Daniel Deronda", whose insults are dealt with a marble politeness, and who crushes his wife's sensibilities, not with a vulgar blow but with the cold and calculating cruelty of a cynic? When it comes to passing moral judgments and fixing blame, and especially to measuring the degree of another's guilt, who of us is good enough, who of us is pure enough, who of us is himself free enough from wrong to exercise so terrible an office? Is not Lear right, after all: "....change places; and....which is the justice, which is the thief?"

It may be said in reply to these objections: First, that the judge does not speak in his private capacity, but that he delivers the judgment of mankind on the doer and the deed, serving as the mouthpiece of the moral law, so far as it is incorporated in the human law. We should select the highest characters available for so exalted a duty, but freedom from even great human infirmity we cannot expect to find. Again, it is not the judge's business to fix the degree of moral guilt; that not even the best and wisest of men can do. The inscrutable fact of the degree of moral guilt eludes all human insight. Only omniscience could decide who is more guilty relatively to opportunities, advantages, circumstances; who has made the braver effort to escape wrongdoing; whether the admired preacher, or the culprit on his way to the gallows; whether the President in the White House or the wretch behind the bars. The office of the judge is to pronounce that crime has been committed, irrespective of the subtle question of the degree of guilt. Murder has been done, property has been stolen, the sin and the sinner wedded together. The office of the judge is to declare the fact of that infelicitous union, and to pronounce the penalty according to the law. And this, in particular. The object of the punishment which the law pronounces is not vindictive chastisement of the culprit. The object of punishment is purely reformatory. Only it must not be forgotten that there can be no reformation without penitence, and no penitence without self-abasement. And this consists in confessing one's self guilty, admitting that the guilt has become a part of one's being, and humbling one's pride to the ground. The public sentence pronounced by the judge, the shame which he fixes upon the culprit, has, then, for its object to pave the way toward reformation, to break down the defenses which the sophistry of wickedness sets up, to compel the man to see himself as others see him, to force him to realize to the full the evil of his present state. Not to blast him utterly, not to exclude him forever from the kindly society of men, but to lead him into the way along which—if he travel it—he may eventually return, though perhaps only after many years, to human fellowship. If the verdict is pronounced in any other spirit, it is false and inhuman. The methods to be employed to bring about reformation must often be severe and painful, and one of these methods is shock, shock sharp and sudden enough to loosen the incrustations of evil habit, and to shake a wicked nature down to its foundations. The purpose of the trial of a criminal in a court of justice, and of the verdict in which the trial culminates, is to supply such a shock, a searching and terrible experience, yet salutary and indispensable in order that better things may ensue.

From what has been said, it follows that the death penalty as a punishment even for the worst crimes is morally untenable; for either the culprit is really irredeemable, that is to say, he is an irresponsible moral idiot, in which case an asylum for the insane is the proper place for him; or he is not irredeemable, in which case the chance of reformation should not be taken from him by cutting off his life. The death penalty is the last lingering vestige of the "Lex Talionis", of the law which attempts to equalize the penalty with the crime, a conception of justice which in all other respects we have happily outgrown. It does not necessarily follow that the immediate abolition of capital punishment is expedient. It is not expedient in fact, because of the condition of our prisons, and because of the abuses to which the pardoning power of the State is subjected; because security is lacking that the worst offenders, before ever they can be reclaimed, may not be returned unrepentant into the bosom of society, to prey upon it anew with impunity. But, then, we must not defend the death penalty as such, but rather deplore and do our utmost to change our political conditions, which make it still unwise to abolish a form of punishment so barbarous and so repugnant to the moral sense.

The step which follows the arrest and condemnation of the evildoer is isolation, with a view to the formation of new habits. A change of heart is the necessary pre-requisite of any permanent change in conduct; but the change of heart, and the resolution to turn over a new leaf to which it gives birth, must be gradually and slowly worked out into a corresponding practice. The old body of sin cannot be stripped off in a moment; the old encumbrance of bad habits cannot be sloughed off like a serpent's coil. The new spirit must incorporate itself slowly in new habits; and to this end the delinquent must be aided in his efforts by a more or less prolonged absence from the scene of his former temptations. He must be placed in an entirely new and suitable environment, and encouraging pressure must be exerted upon him to acquire new habits of order, diligent application to work, obedience, self-control. It is upon this idea that the moral propriety of imprisonment and of prison discipline is based, whether the actual treatment of prisoners be in accord with it or not.