THERE is a proverb very frequently quoted in recent years, to the general effect that prevention is far more valuable than cure. Most articles dealing with discipline that now appear in the various service publications discuss, therefore, methods of preventing infractions of discipline rather than of handling them after they occur. Nevertheless, cure is necessary very frequently, even in these modern days; moreover, a proper cure should act in great degree as prevention for future infractions. This article, therefore, will deal mainly with methods of handling the various types of offenses encountered in the naval service after they occur.
Like all other activities of our service life, punishment has a mission, and we must understand just what we wish to accomplish by punishing offenders before we can administer discipline in an intelligent manner.
In primitive times, before the development of strong states, most crimes were offenses against individuals and were considered solely in that light. They were therefore punished by the injured persons, if they had the power, and the punishment usually took the form of retaliation in kind: “an eye for an eye and a tooth for a tooth.” Later on, as governments became stronger, the state adopted the theory that all crimes were crimes against itself and assumed the sole power of punishing them, but the old retaliatory, vindictive theory of punishment remained for a long time in the criminal codes even of the most advanced states.
In modern times, two new and more humane theories have been advanced and are generally accepted at the present day. These are, first, that criminals should be punished as a measure to protect society, either by depriving the criminal of the power to repeat as by capital punishment or imprisonment, or by deterring others as well as himself from crime. The second theory is that punishment should be considered as a method of reforming the criminal and rendering him a law abiding member of society, though such a reformation, if accomplished, will also tend to protect society.
Interpreting these theories in the light of service conditions we are justified in saying that our mission in punishing offenders is twofold: (a) To maintain discipline by deterring others from the commission of offenses, (b) To reform the offender: that is, transform him into a well disciplined and well behaved member of the service, both for his own sake and for the sake of the service.
As this article is intended as a discussion of the maintenance of discipline in the service rather than as a treatise on criminology, it is not concerned with the punishment of those offenses which, though committed by members of the service, are also felonies under the common law, such as robbery, theft, etc. Persons found guilty of felony are, or should be, immediately separated from the service, irrespective of what other punishment they may receive. Adequate punishments should, of course, be given, since the services are part of society as a whole and it is their duty, therefore, to punish transgressions which are offenses against society as well as those which are offenses against discipline.
Returning to our mission, it is obvious that maintenance of discipline is the discharge of our duty toward the service as a whole, while reform of offenders deals with our duty to individuals. These ends are not mutually exclusive. The methods we use for either should also assist in accomplishing the other. Thus, in a well disciplined organization, both opportunities and incentives to commit offenses are relatively few, even for individuals naturally so inclined. On the other hand, the reformation of offenders improves the general state of discipline. We will, therefore, be justified in considering at the same time the means by which we hope to accomplish both branches of our mission.
In the application of punishments there are three questions which each disciplinary authority must answer for himself: (1) In what degree shall punishments be inflicted? (With severity or mildness?) (2) Shall a rule or system be followed? (3) What types of punishments shall be given? Severity or mildness in the application of discipline is, of course, entirely relative. Excessive harshness will, however, defeat its own ends. If men are constantly given severe punishments for comparatively trivial offenses, the effect will be, not to deter other men from transgressing, but to produce a general feeling of discouragement and discontent, the individual coming to the conclusion that it is not worth while to try to do well, for he will get into trouble anyway. An organization where discipline is administered in this manner will soon show low morale, which will be reflected not only in an increased number of offenses but lesser efficiency in work performed. On the other hand, excessive leniency produces the same result as over severity, only in this case the process of reasoning will be, “Why should I behave myself when Bill can commit murder and get away with it?”
In the administration of discipline, as in most other service activities, there is a golden mean between two extremes. To attain that mean should be the aim of every officer charged with disciplinary authority. In adjudging punishments there is no such thing as absolute justice. The best any officer can do is to follow his conscience. A given offense may, under certain circumstances, be far more serious than under others, or it may be much more serious when committed by a man of high rank or of long service than when the delinquent is a recruit.
On the question of a rule or schedule in awarding punishments, there have been in recent years two schools of thought. A few years ago the Department issued a definite schedule of punishments for various offenses, and commanding, officers and courts-martial were urged (they could not be compelled) to follow this schedule. The advocates of this plan argued that it brought about absolute uniformity and impartiality in the administration of justice, that men knew exactly what was coming to them if they committed themselves, and that there would no longer exist the feeling of being unjustly treated that generally ensues if one man receives a heavier sentence than another for the same offense. The plan also showed on the part of its makers an understanding of enlisted men’s psychology. The average enlisted man does not think of his punishments as being inflicted with the object of deterring other men or even of reforming himself. He looks at it rather from the point of view of buying something and paying for it. Thus, if he stays two days over leave in a good liberty port, or gives himself the pleasure of “cussing out” the master-at-arms, he knows he has bought something for which he must pay. If the price is uniform, will there not be less discontent than if for Bill it is marked down, while Jim has to pay in full ? That is one way of looking at it.
On the other hand, opponents of the plan offered what seemed to them conclusive objections against it. They urged that it hampered the initiative of commanding officers; that officers had different ways of maintaining discipline and that, provided they produced results, methods should be left to themselves. It was also argued that it interfered, actually if not in theory, with the discretion of courts-martial. The most serious objection, however, was that as most offenses of a similar type had attendant circumstances which made some much more serious than others, the application of a uniform punishment to all such offenses would result in real and substantial injustice.
It will thus be seen that there are very plausible arguments to be alleged pro and con. However, the consensus of service opinion was undoubtedly unfavorable and the Department eventually abolished its schedule. This action settled the question so far as concerned a departmental schedule. The subject of local schedules is still a vital one, since commanders of fleets, brigades, or lesser units still have the power, and sometimes exercise it, of issuing schedules to be followed by the units of their command, though of course such schedules cannot be made mandatory.
The writer is of the opinion that schedules should work satisfactorily if they are applied by the same authority who promulgates them; in other words, by the commanding officers of the lowest disciplinary units, as distinct from fleet, brigade or other higher commanders.
There is one class of offenses in particular, those involving absence over or without leave and of a degree usually brought before a summary or deck court, to which a schedule can be applied with comparatively little difficulty. If the court adjudges the sentence laid down, but where appropriate adds a recommendation for clemency on account of previous good record or other mitigating circumstances, the convening authority can always reduce the sentence in whatever amount he thinks is best. If such a procedure is followed carefully, it is believed that most of the objections to a schedule will be obviated for this type of offense. In this connection, when the accused has no counsel, recorders of summary courts-martial and deck court officers should always advise the accused to place in evidence his service record, if it shows previous good conduct. This very frequently is not done and men may and do suffer injustice thereby.
In considering the type of punishment to be awarded, it is necessary to revert again to our mission. What kind of punishment will be the most effective deterrent to others ? What kind will be most successful in reforming the offender himself ? To answer these questions correctly, it is necessary to understand the mental reactions in a given instance, first, of the whole enlisted complement of the organization, next, of the delinquent himself. It must be remembered that the class of offenses with which we are dealing are principally infractions of discipline and from the average man’s point of view, no question of morals or ethics is concerned. They are merely “things prohibited” rather than “things wrong in themselves.” Therefore punishments tending to humiliate or degrade men will cause ill feeling in the command and certainly will not reform the transgressor. Confinement in irons was of this nature, not when it was first adopted, perhaps, but it became so because it was out of harmony with the more humane customs of modern civilization. None of the punishments now authorized are humiliating in themselves; they can be made so, however, in their application and attendant circumstances, as, for example, by unnecessarily rough handling of prisoners by sentinels or masters- at-arms.
Some officers believe that first offenders, unless their offense is of a very serious nature, should be let off with a warning; that is, with no punishment at all. On the other hand, it is also urged that offenders, especially if new to the service, are more apt to follow the straight and narrow path if brought up sharply on their first divergence from it; but if a man has been in the service for a considerable time and his behavior and performance of duty have been excellent, then obviously leniency will not be wasted upon him.
Solitary confinement on bread and water is a punishment frequently used for types of offenses where an evil intent or insubordinate spirit is particularly obvious, such as lying or disrespectful language or behavior toward a noncommissioned or petty officer. The custom of the service has more or less sanctioned this practice, probably on the theory that it gives the culprit an opportunity to cool his passions in solitude and think over the evil of his ways. Solitary confinement on bread and water is always a severe punishment ; moreover, its very nature allows no latitude in its enforcement. Its effect is to cause physical discomfort through hunger or deprivation of accustomed food; it is, therefore, effective with men who are mentally or spiritually obtuse—men who can be reached in no other way; in other words, men of relatively low mental and moral development. Confinement on bread and water has the disadvantage of depriving the government of the prisoner’s services during his confinement and sometimes requiring additional work on the part of other men as sentinels. Summing up, it should be used primarily for the types of offenses mentioned above; secondarily, for the type of offenders with whom experience has shown no other punishment brings results.
Simple confinement is a punishment whose effect depends largely on the manner in which it is administered. If a man is worked all day long under a sentry’s charge and confined in the brig at other times, it is a very effective punishment and men of normal sensitiveness and intelligence will do all they can to avoid it. On the other hand, it frequently happens on board ship that confinement is interpreted as simple confinement to the ship and it becomes merely restriction, which is a light punishment when the ship is under way a great deal of the time or visits undesirable liberty ports.
As a general rule, confinement should never be given to petty officers or noncommissioned officers unless disrating is combined with it. This combination can only be given by a general court- martial. The reason, of course, for not confining a rated man is that he thereby loses “face” and his prestige and authority over other men is thereby lessened. This rule is always followed in the Marine Corps, but not invariably in the Navy, partly because certain classes of petty officers hold their rates primarily because of technical ability, and not because their usual duty requires them to exercise control over others. The rule could be restated for the Navy to read that confinement should never be inflicted on a petty officer who is customarily charged with authority over other men.
Loss of pay as a punishment also has a qualified and by no means constant value. Our government, like most others, requires its wealthier tax payers to pay a higher percentage of their income in taxes than the poorer ones, on the ground that the rich can pay at the higher rate and still have a comfortable amount left for living expenses. This theory is usually admitted to be founded on justice. It is not applied, however, in the service. All fines awarded by summary courts-martial or deck courts are collected in monthly installments, each amounting to not more than half a month’s pay. Therefore, the man sentenced to lose pay has half a month’s pay per month to live on until his fine is worked off. Enlisted men as a rule, except the highest ratings, have much the same standard of living, and the same expenses. The few who have dependents are in such a minority as to be negligible for purposes of argument. If we assume two men, one drawing $60.00 a month, the other $21.00, it is clear that the man who has to live on $10.50 per month for three months or six months, as the case may be, suffers a more severe punishment than the man who has $30.00 per month to live on for the same time. The case is aggravated by the fact that the higher paid man necessarily has more rank and therefore should be held to a higher standard and punished more heavily for delinquency than his poorer messmate.
Disrating as a punishment needs few comments. It is the prescribed punishment for incompetency. It is also a logical punishment for noncommissioned or other petty officers who transgress in other ways to such a degree as to lose the respect of the men over whom they are supposed to exercise authority.
As a general rule, the bad conduct discharge and obviously to a greater degree the dishonorable discharge, are punishments which act as very severe deterrents to breaches of discipline. Considered in their mildest possible significance they brand their recipients as failures in the task they have undertaken, and no man of any ambition or spirit is willing to bear such a stigma. Viewed only as indications of the character of the man concerned, they may be compared to the crime of desertion. Desertion, however, carries with it for most men, its own deterrent, whether the man contemplating it believes he will be apprehended or not, for even if a deserter succeeds in remaining at liberty until the Statute of Limitations protects him, he will always bear with him the knowledge of a shameful secret which, if discovered, he knows will degrade him in the eyes of his associates. In fact, it may be said that men who deliberately bring upon themselves the punishment of bad conduct or dishonorable discharges to get out of the service, or men who desert, are of such low moral standards that the service is better off without them. There is, unfortunately, an exception to this rule, though the rule should hold good in all cases. It sometimes happens that conditions in a post or on board a ship become so intolerable that men not below the average in character or morale do attempt to leave the service by one of these methods. Such a state of affairs deserves, of course, prompt and drastic remedial steps.
Considering punishments from the point of view of reforming the individual concerned, it is obvious that the award of a dishonorable or bad conduct discharge is an admission that reform is impossible or improbable in this case. Such, of course, is frequently the fact; it may be doubted, however, whether the number of such cases equals the number of dishonorable and bad conduct discharges now awarded in the naval service. I am not considering the instances where such discharges are awarded for felony.
Members of courts-martial should, however, realize that for every man awarded a bad conduct or dishonorable discharge, the government must go to the expense of enlisting and training another man; they must be certain before they adjudge the discharge that the advantage to the service in getting the old man out is not offset by the disadvantage of getting a new man in.
There is one more phase of the administration of discipline which deserves discussion. It is generally true, I believe, that the manner in which minor infractions of discipline are handled is one of the most important factors in the general morale of any command. The graver offenses, those usually tried by general courts- martial, are relatively infrequent and are usually committed by men who are recognized as undesirable. When an offender is reported to the commanding officer, that officer can either handle the case directly by assigning one of the punishments the Articles for the Government of the Navy empower him to give, or he can place the case before a court. If he selects the latter course, the responsibility for determining the guilt or innocence of the accused is, of course, transferred to the court, though if the court be either a summary court-martial or deck court, the commanding officer as convening authority must act on the findings and sentence; but in case he does not deem reference to a court desirable, he himself must first arrive at a finding and then award an adequate punishment. Moreover, he has not the aid of sworn testimony. In the majority of cases brought before the commanding officer, there is, fortunately, no dispute as to the facts. In the minority where there is, it is necessary to follow much the same procedure as in a court-martial: that is, witnesses on both sides must be heard and to a certain extent the Rules of Evidence must be followed. No one should be punished, for instance, on merely hearsay evidence. It is not customary to allow the accused to question witnesses, but the commanding officer must make up for this by exhaustive questioning himself. The principal end to be attained is, not only that the accused receive justice, but that he himself and his friends believe that he receives justice. Every endeavor should be made to avoid the impression that mast or office hours is a cut and dried affair, where witnesses perfunctorily make their statements and the commanding officer as perfunctorily awards a punishment, all as a matter of routine. Each man brought before the commanding officer should feel that the latter is interested in his individual case and is honestly endeavoring, first, to see if the charge is substantiated; next, that if it is, a fair punishment is adjudged. The first consideration is the most important, because, while absolute justice, as stated above, does not exist with regard to punishments, it is a necessary attribute of findings, for whether a given sentence is too harsh or too light is a matter of opinion, but whether a man is guilty or not is a matter of fact, and punishment of a man for an offense of which he is not guilty, even if the punishment is trivial, is certain to cause very grave discontent.
In conclusion, it should be emphasized that the decision is a responsibility of the disciplinary agency involved, always in the finding, and generally in the case of the sentence, the exceptions being the few instances where certain punishments are mandatory. No attempt to take away this responsibility has ever been successful. The foregoing comments are not intended as suggestions as to what the decision of court or commanding officer shall be in a given instance. Their purpose is merely to indicate the methods by which that decision can be reached.