II.
The reforms which we propose in punitive law are based on the
fundamental principle already established on the data of
anthropology and criminal statistics.
If the ethical idea of punishment as a retribution for crime
be excluded from the repressive function of society, and if we
regard this function simply as a defensive power acting through
law, penal justice can no longer be squared with a minute
computation of the moral responsibility or culpability of the
criminal. It can have no other end than to prove, first, that the
person under trial is the author of the crime, and, then, to which
type of criminals he belongs, and, as a consequence, what degree
of anti-social depravity and re-adaptability is indicated by his
physical and mental qualities.
The first and fundamental inquiry in every criminal trial
will always be the verification of the crime and the
identification of the criminal.
But when the connection of the accused and the crime is once
established, either the accused produces evidence of his honesty,
or of the uprightness of his motives--the only case in which his
acquittal can be demanded or taken into consideration--or else it
is proved that his motives were anti-social and unlawful, and then
there is no place for those grotesque and often insincere contests
between the prosecution and the defence to prevent or to secure an
acquittal, which will be impossible whatever may be the
psychological conditions of the criminal.
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