Crim 402- Willis
Thursday, February 24, 2011
Hay’s Paradox on Punishment
When examining punishments and laws of the seventeen and eighteen hundreds it is easy to see the paradox pointed out by Douglas Hay. As societies grew through the ages and Man became more civilized, men with wealth also became more interested in control. Especially during Feudal times, it is easy to see how those with power were bent on keeping it, and how those without it would strive to make ends meet.
They say poverty is a leading factor in crime, yet the laws that were made to keep the rich man’s wealth also contributed to more poverty and possibly more crime. Between the years 1688 and 1820 the number of laws punishable by death rose from fifty to two hundred. The number of crimes went up as well as the number of convictions. The original thought behind this was that the death penalty gave comfort to those with wealth. There was no structured police force at the time and even if there was how would anyone call them in the case of a break in. “He himself had dogs, firearms, lights and bells at his own country home, and took a brace of double-barreled pistols to bed with him every night but his peace of mind mostly rested on the knowledge that the death sentence hung over anyone who broke in to steal his silver plate,” (1975: pg. 18).
Parliament passed acts in 1753, 1764 and 1769 that gave the death penalty to those who stole, raided, or destroyed goods from shipwreck, linens and food that didn’t belong to them. Nearly all of the statutes created in this era pertained to property offenses. You would think that with the number of laws and convictions on the rise the number of executions would increase as well. However, the number of people put to death actually declined. Thus is the paradox identified by Hay. “The number of executions did not increase to match the number of convictions,” (1975: pg. 22). According to Hay, this could be attributed to the raising number of pardons given out by judges, where they could recommend the offender be transported instead of being put to death. Property had become sacred. Your life could be summed up by your wealth and personal gains and therefore violating some one else’s property could be punished. Even John Locke argued that the purpose of a government was to preserve property. This was clearly the stance of the Parliament. They passed law after law and introduced act after act in order to keep their statutes up to date to increase prosecution against new property crimes. The poor started looting wreckage washed in from a shipwreck. They made laws against that because the property they took belonged to a king or a noble of some kind, but more importantly it wasn’t their property to take. Therefore it was punishable by death. The price of food was raised so the poor began raiding mills and rioting, so soon they made a law against that as well and so on and so forth. Anytime there was an issue concerning property a law was introduced as a method of deterrence. The wealthy felt that people would shy away from crime if the punishment was heavy enough.
Hay’s argument is concerned with the ideology of the system. How does it actually work to deter crime? What is actually happening to separate the poor from the nobles and separate society into rich and poor? He breaks it down into the Majesty, Justice and Mercy of the criminal justice system. When court is in session the Judges and prosecutors pretty much parade down the streets. They show up in fine clothing, full white wigs. Clean, proper, there’s a big theatrical like spectacle about it. “They enter town with bells ringing and trumpets playing, preceded by the sheriffs men... and they escort them everyday to the assize hall and back again to their apartments,” (1975: pg. 27). Everything is a big show, even the public hangings. The officials want the big spectacle so that the viewers will go home and tell their families about the horrible scene.
The next aspect of Law as Ideology identified by Hay is justice. The officials want the people to feel as if Justice is served and it is a fair procedure. That the law is equal to everyone. They’ll even hang a rich man every once in a while in order to let the public know that no man can go unpunished, no man is above the law, and that the law is not arbitrary. Judges in the eighteenth century maintained that law should definite and well known, that the prosecution must so everything in accordance with the law and that the smallest mishap on the prosecutions part could lead to the dismissal of the case. Even people attending the case could stand up and suggest errors in the prosecutions work and get the case dismissed. These factors let the public know that everyone was getting a fair trial.
The third aspect of the Ideology is mercy. The judges had the ability in every case to decide the outcome. They could dole out full pardons or recommend that the offender be transported instead of hanging. There was also full discretion in the prosecution. Since there was no structured police force, all prosecution was privately run and ultimately the decision to prosecute came down on the victim to take the offender to court. Offenders could literally beg their victims for forgiveness and workout a means to repay them or do work for them in exchange of going to court and consequently victims could basically blackmail the offender into servitude for committing a crime. Also, if the accused offender is in good standing or personally knows a noble or a rich person or some one in power, they can ask for mercy on their behalf and be pardoned by the courts. “The wretched thief begging on his knees for forgiveness is not a literary conceit, but a reality described in many legal dispositions,” (1975: pg. 41). However, showing mercy did not hurt parliament’s objective to deter crime. It probably strengthened it as Hay writes, “Yet where certainty of enforcement had to be sacrificed to public opinion, even then graciously granted mercy could produce gratifying deference. Especially where the prosecutor was a landed gentleman, acts of mercy helped create the mental structure of paternalism.” (1975: pg. 42)
All of the aforementioned aspects of law as ideology play into the hands of the wealthy. Yes, it makes the public and the laymen feel like the Justices and the officials are looking out for them in their time of need and that the law is fair and equal to everyone, it is really doing nothing but furthering the separation of rich and poor, master and servant. Just like the quote from page 42, “acts of mercy helped create the mental structure of paternalism.” So now the poor bastard that stole from the rich man’s stable feels like he/she feels like they owe him something. They feel that they should do chores or work for him for free to repay his mercy.
Majesty, Justice and Mercy do nothing for the majority of the population. This is my biggest argument against Hay. I feel that no matter how you look at it the criminal justice system catered to these ideologies solely to raise the image that they were big and powerful and no one can escape the law. If you steal, you will be put to death unless you beg for forgiveness, and if the prosecution doesn’t care then you will be put to death but if you have witnesses beg too maybe you’ll just get transported to a different country and if you know some one powerful you’ll receive a full pardon. The ideology of the system looks good on paper and may have worked to keep order, but really it was all arbitrary. They didn’t follow the exact word of the law.
Hay also argues that the objective of the criminal justice system was to deter crime. I disagree with this as well. The way I see it, the main objective was to keep order in society and by being arbitrary and by having the big majesty spectacle they think they have achieved these ends. But If a poor beggar stole a loaf of bread from my vending stand and I catch her. I can have her tried for stealing my property and if convicted she could be put to death. But then she begs for mercy, tells me she has children and begs me not to prosecute. I tell her she has to work for me for a year in exchange. She acquiesces, now she is indentured to me and under my control but in her eyes I’m being merciful.
Hay also doesn’t really talk too much about the education of the public. He does say that if the charges aren’t properly submitted, the case gets a complete dismissal. He doesn’t say that the poor are educated enough to know how to prosecute the people who violate them. So we have the poor stealing from the rich for self preservation. The rich prosecuting them and giving them two options: beg for forgiveness or be hung, and we have the very few rich people being prosecuted and maybe even convicted but since they are rich they probably know a noble or some one in the parliament who can vouch for their inherent goodness. If not there’s a chance that the poor man prosecuting him can’t spell the name correctly and the whole case is thrown out and there is no justice for the poor man.
In closing I want say that I don’t exactly disagree with Hay. I just think that more may have contributed to the situation. He is trying to show why this paradox existed and bringing up the ideology of the people, how the aristocracy and gentry tried to maintain control, how class is defined by the relationships and not just by the numbers of a group. I feel like the bigger issue is that there wasn’t a big opportunity for the poor to advance themselves. They would turn to petty crime to make ends meet and survive, but then the parliament controlled by the aristocrats made laws that controlled their actions through fear. The increase in convictions came from the increase in statutes. Every little offense was punishable by death. To me the paradox of this criminal justice system didn’t come about because the rich were trying to control the wealth. They controlled the wealth because there weren’t many opportunities for the poor to succeed. The problem with this society was that you were either born rich or born poor. Some sort of paradox would have resulted no matter which crime the poor chose to commit in an attempt to better themselves, and the only thing the rich could threaten them with was loss of life.