Beccaria on crimes and punishments

Beccaria’s emphasis on utilitarian and contractarian principles constitutes the entire treatment of his work on crime and punishment. The following subsec­tions are designed as a summary analysis of his work with the aim of bringing to light his use of economic reasoning.

On crimes and punishments⁸

In the introduction to his principal work, On Crimes and Punishments, Beccaria clarifies the objective, anticipating the method of his analysis. At the outset, he poses the fundamental question of whether the punishment of crimes is worthwhile and, moreover, whether the death penalty is truly useful and necessary for the general level of security and social order. In his subsequent analysis, Beccaria raises additional questions about whether torture and other torments are just or unjust. He brings his analysis to a level of generality addressing the best crime prevention methods.

Beccaria uses generic terms such as ‘worthwhile, useful and necessary’. Behind these common terms, he addresses crucial methodological problems which are common to the modern analyses of the efficiency of the criminal law system. Furthermore, the resolution of these questions, on the basis of the specifications he proposes, deserves to be analysed ‘with geometric precis­ion’: already in line with the initial approach, the pertinence of the economic mathematical method is evidently fundamental to the text, as a detailed analysis of the various chapters will also reveal. This exposition is formulated in the same way as his original work, namely, in brief and concise para­graphs. For the sake of brevity, we have omitted the analysis of paragraphs that do not specifically relate to the economic approach.

The origin of punishments: the right to punish

According to Beccaria, analysis of the origin of criminal law represents a utility for society: laws, including criminal laws, are the conditions uniting independent, isolated men and women in society, weary of their unbridled state and continuous wars with each other. It is precisely in this regard that the word ‘law’ must not be seen as contradictory to the word ‘strength’: on closer analysis, the former is, rather, a modification of the latter, that is, a modification most useful to the greatest number.

The social contract among men, then, represents a utility for men who renounce freedom in the total sense to create an aggregate which is also penal, designed to give form to the organized social group that, in turn, gives everyone a greater sense of security and freedom.

Consequences (omissis)

The interpretation of the laws (omissis)

The obscurity of the laws

According to Beccaria, laws must be formulated clearly, since the more people who understand the ‘sacred code of the laws’, the fewer the crimes. Thus, ignorance and uncertainty about punishments are inversely propor­tional to the frequency of crimes committed.

On detention awaiting trial (omissis)

Evidence, and form of judgments

According to Beccaria, there is a very useful general theorem for calculating the certainty of a fact - for example, the force of evidence of a crime. He formulates the theorem in the following terms:

When the pieces of evidence for some matter are interdependent, that is, when the pieces of evidence cannot be tested except against each other, then, the more evidence is adduced, the less credible is the matter in question, because anything which would make the earlier parts fail will make the later parts fail too. When all the pieces of evidence for some matter depend equally on a single piece, the number of pieces neither increases nor decreases the probability of the matter, because their joint value as evidence is included in the value of the piece on which they all depend.

Of witness credibility

If legislation is to be useful it must have a clear notion of witness credibility. The true measure of such credibility is the witness’s degree of motivation for telling the truth or not. Thus, the credibility must diminish in proportion to the degree of hostility or friendship or to the degree of closeness of the relationship between the witness and the accused. In the same way, this credibility is inversely proportional to the atrocity level of the crime or to the unlikelihood of the circumstances.

Thus, in short, man is as cruel as he is motivated by the hatred or fear that the case in question arouses in him.

Secret denunciations (omissis)

Leading interrogations, depositions (omissis)

Of oaths

Beccaria pinpoints the disutility of oaths which represent a contradiction between the laws and natural human sentiment: the accused has the best possible reason to lie because telling the truth could lead to his destruction.

Thus Beccaria affirms:

Experience has shown how useless oaths are. Any judge will testify that no oath has ever made a guilty man tell the truth, and so does reason, which rules that every law which runs counter to men’s natural feelings is useless and therefore pernicious. Such laws share the fate of dykes which are built straight in the line of a river’s flow: they are either flattened and engulfed straight away, or they are eroded and gradually undermined by the eddies which they themselves set up.

Of torture

In Beccaria’s view, torture is considered of no utility. Torture involves the punishment of an individual before he has been proven guilty. In this setting, Beccaria observes:

[This] dilemma is not a novelty: either the crime is certain or it is not; if it is certain, then no other punishment is called for than what is established by law and other torments are superfluous because the criminal’s confession is superfluous; if it is not certain, then an innocent man should not be made to suffer, because, in law, such a man’s crimes have not been proven.

An additional consideration, therefore, is that if a greater number of men and women - either out of fear or virtue - respect the law than break it, it is equally true that ‘the risk of torturing an innocent ought to be accounted all the greater, since it is more likely that any given man has observed the laws than that he has flouted them’.

More specifically, torture is a matter of temperament and calculation which varies in every person in proportion to his physical resilience and sensibili­ties: on this basis, Beccaria maintains:

[The] result, therefore, of torture depends on a man’s predisposition and on calculation, which vary from man to man according to their hardihood and sensi­bility, so that, with this method, a mathematician would settle problems better than a judge. Given the strength of an innocent man’s muscles and the sensitivity of his sinews, one need only find the right level of pain to make him admit his guilt of a given crime.

The use of torture, then, has another consequence: an accused who is innocent is placed in a worse position than the self-confessed criminal. Since both are susceptible to torture, the innocent accused would certainly find himself at a disadvantage after torture:

[The] innocent is put in a worse position than the guilty. For, if both are tortured, the former has everything against him. Either he confesses to the crime and is convicted, or he is acquitted and has suffered an unwarranted punishment. The criminal, in contrast, finds himself in a favorable position, because if he staunchly withstands the torture he must be acquitted and so has commuted a heavier sentence into a lighter one. Therefore, the innocent man cannot but lose and the guilty man may gain.

Beccaria’s summary historical analysis demonstrates the soundness of his conceptions: torture is not believed necessary or useful by Roman law, by British law, by Swedish law or even by military regulations.

Trials and prescriptions

Beccaria maintains that there is a proportional relationship between the false condemnation of an innocent subject and the defects in legislation: the former increases with defects in the laws.

Given this, and having experimented with lenience in punishing (see below), the author affirms:

[In] a nation which has discovered the usefulness of moderate punishments, laws which extend or shorten the period available for prosecution in proportion to the gravity of the crime, using remand and voluntary exile as part of the punishment, will be able to provide a simple and restricted class of lenient punishments for a wide range of crimes. But the periods in question shall not increase in direct proportion to the seriousness of the crime, since the likelihood of a crime is in inverse proportion to its seriousness. The period of investigation ought to diminish accordingly, therefore, and the time within which a prosecution must occur in­crease, which may seem to be in conflict with what I have said about equal punishments being given for unequal crimes if we count the period of remand or period of limitation before the verdict as part of the punishment.

In explanation of this affirmation, Beccaria distinguishes two categories of crime: crimes of atrocity (for example, homicide) and lesser crimes:

This distinction has its foundation in human nature. The safety of one’s own life is a natural right, the protection of property is a social right. The number of motives which impel men to overstep the natural feelings of pity is far fewer than the number of motives which impel them by the natural desire to be happy to violate a right which they do not find in their hearts but in social conventions.

That there is a maximum degree of difference between these two categories means that they must be treated differently.

In the case of crimes of atrocity, the preliminary examination schedules increasing the probability of the accused’s innocence must be cut back and the prescription period increased: ‘But in minor crimes, since the accused’s innocence is less likely, the time set aside for investigation should increase, and, since the harm caused by impunity is the less, the period for preparing the trial should decrease’.

Attempted crimes, accomplices and immunity

Beccaria points out that some courts offer immunity to accomplices who betray their companions in crime. But this, on analysis, presents both advan­tages and disadvantages. One advantage is that of preventing major crimes since a person who has not kept faith with the public domain, that is, the laws, will in the future be held equally faithless in his private relationships. A disadvantage of this procedure, is that a nation is authorizing betrayal, which is detestable in any context. Beccaria sustains that a general law as opposed to a special law is preferable in this matter.

Lenience in punishing

The objective of criminal laws is to prevent the criminal from causing further harm. Thus the punishment must fit the crime and be such as to make an effective, lasting impression on men and women and, therefore, must be the less tormenting prospect for the guilty. That is, the punishment must be as lenient as possible: if this were not so, the above function would not be fulfilled.

On this basis, Beccario is bitterly critical of severe punishments:

[T]he harsher the punishment and the worse the evil he faces, the more anxious the criminal is to avoid it, and it makes him commit other crimes to escape the punishment of the first. The times and places in which the penalties have been fiercest have been those of the bloodiest and most inhuman actions. Because the same brutal spirit which guided the hand of the lawgiver, also moved the parri­cide’s and the assassin’s.

This is to say that the cruelty of the ‘suffering inflicted’ renders the human soul even more ill-intentioned. Beccario continues:

If a punishment is to serve its purpose, it is enough that the harm of punishment should outweigh the good which the criminal can derive from the crime, and into the calculation of this balance, we must add the unerringness of the punishment and the loss of the good produced by the crime. Anything more than this is superfluous and, therefore, tyrannous.

The death penalty

At this point in his inquiry, Beccaria moves on to analyse whether the death penalty is truly useful and just in well-organized governance. In his work, the death of any citizen is deemed necessary in only two cases:

There are only two grounds on which the death of a citizen might be held to be necessary. First, when it is evident that even if deprived of his freedom, he retains such connections and such power as to endanger the security of the nation, when, that is, his existence may threaten a dangerous revolution in the established forms of government. The death of a citizen becomes necessary, therefore, when the nation stands to gain or lose its freedom, or in periods of anarchy, when disorder replaces the laws. But when the rule of law calmly prevails, under a form of government behind which the people are united, which is secured from without and from within, both by its strength and, perhaps more efficacious than force itself, by public opinion, in which the control of power is in the hands of the true sovereign, in which wealth buys pleasures and not influence, then I do not see any need to destroy a citizen, unless his death is the true and only brake to prevent others from committing crimes, which is the second ground for thinking the death penalty just and necessary.

In substance, according to Beccaria, more effective than the idea of death is a criminal law which would influence the human soul over an extended period, which is to say, human sensibility is more easily and permanently stirred by lesser though frequently repeated impressions than by a strong, though transient evil. The effects of punishments, then, must not be strong but frequent.

In other words,

[I]f a punishment is to be just, it must be pitched at just that level of intensity which suffices to deter men from crime. Now there is no one who, after consider­ing the matter, could choose the total and permanent loss of his own freedom, however profitable the crime might be. Therefore, permanent penal servitude in place of the death penalty would be enough to deter even the most resolute soul: indeed, I would say that it is more likely to. Very many people look on death with a calm and steadfast gaze, some from fanaticism, some from vanity, a sentiment that almost always accompanies a man to the grave and beyond, and some from a last desperate effort either to live no more or to escape from poverty. However, neither fanaticism nor vanity survives in manacles and chains, under the rod and the yoke or in an iron cage; and the ills of the desperate man are not over, but are just beginning. Our spirit withstands violence and extreme but fleeting pains better than time and endless fatigue. For it can, so to speak, condense itself to repel the former, but its tenacious elasticity is insufficient to resist the latter.

Still on capital punishment, Beccaria observes:

With the death penalty, every lesson which is given to the nation requires a new crime; with permanent penal servitude, a single crime gives very many lasting lessons. And, if it is important that men often see the power of the law, executions ought not to be too infrequent: they therefore require there to be frequent crimes; so that, if this punishment is to be effective, it is necessary that it not make the impression that it should make. That is, it must be both useful and useless at the same time. If it be said that permanent penal servitude is as grievous as death, and therefore as cruel, I reply that, if we add up all the unhappy moments of slavery, perhaps it is even more so, but the latter are spread out over an entire life, whereas the former exerts its force only at a single moment. And this is an advantage of penal servitude, because it frightens those who see it more than those who undergo it. For the former thinks about the sum of unhappy moments, whereas the latter is distracted from present unhappiness by the prospect of future pain. All harms are magnified in the imagination, and the sufferer finds resources and consolations unknown and unsuspected by the spectators, who put their own sensibility in the place of the hardened soul of the wretch.

According to Beccaria, therefore, the death penalty ‘is not useful because of the example of savagery it gives to men’.

On the basis of these arguments, he goes on to conclude by bringing the readers back to the fundamental question of his contractarian approach: ‘what are the true and most useful laws? Those contracts and terms that everyone would want to obey and to propose so long as the voice of private interest, which is always listened to, is silent or in agreement with the public interest’.

In sum, Beccaria’s aversion to the generalized use of the death penalty is based on utilitarian, rather than dogmatic, principles, linked to his belief that capital punishments are fundamentally wasteful and hardly deterrent. Execu­tions do not have a lasting impact on the public memory and they occasion the loss of a human life that could have been instrumental to repaying the loss inflicted on society.

Banishment and confiscations

Beccario wonders whether anyone who is banished and excluded for ever from society must also be deprived of ownership of the goods and assets belonging to him. He answers in negative terms because the loss of assets represents a worse punishment than banishment: there must, then, be cases which, in proportion to the crime, admit the renunciation of ownership of assets on the part of the person who is banished; and there must be others where succession of ownership by his legitimate heirs is possible rather than by the state.

Of honour (omissis)

Ofprompt punishments

Beccaria’s conception of punishment as the price of crime is extremely germane to the modern conception of punishment in the law and economics tradition. He considers the need for a timely imposition of punishment after wrongdoing, and observes:

The swifter and closer to the crime a punishment is, the juster and more useful it will be. I say juster, because it spares the criminal the useless and fierce torments of uncertainty which grow in proportion to the liveliness of one’s imagination and one’s sense of one’s own impotence. More just because, loss of freedom being a punishment, a man should suffer it no longer than necessary before being sen­tenced. Remand in custody, therefore, is the simple safe-keeping of a citizen until he may be judged guilty, and since this custody is intrinsically of the nature of a punishment, it should last the minimum possible time and should be as lacking in severity as can be arranged. The minimum time should be calculated taking into account both the length of time needed for the trial and the right of those who have been held the longest to be tried first. The stringency of the detention ought not to be greater than what is necessary to prevent escape or to save evidence from being covered up. The trial itself ought to be brought to a conclusion in the shortest possible time.

More specifically, prompt punishment is more just because it spares the criminal the futile, ongoing torments of uncertainty and because it would be necessary to reduce the detention of the person awaiting sentence to the maximum.

In addition, prompt punishment is of greater utility because the shorter the time between the misdeed and the punishment, ‘the stronger and more lasting the association in the human mind between the two ideas crime and punish­ment. The former will come to be seen as the cause and the latter as the necessary, inexorable effect’. In this respect, Beccaria follows the empiricist argument of John Locke attributing human knowledge to the operation of experience over human senses.⁹ The need for clear laws and speedy punish­ment was instrumental to effective deterrence. Beccaria’s utilitarian argument is based on his belief that a timely imposition of punishment ensures a mental association between pain and crime.

Pardons

Beccaria’s view of pardons anticipates the modern conceptions of rational expectations, credibility of threats and subjective beliefs in criminal punish­ment. According to him, ‘to show men that crimes can be pardoned, and that punishment is not their inevitable consequence, encourages the illusion of impunity and induces the belief that, since there are pardons, those sentences which are not pardoned are violent acts of force rather than the products of justice’.

Asylum (omissis)

On setting a price on men's heads (omissis)

The proportion between crimes and punishments

According to Beccaria, there must be proportion between crimes and punish­ments: punishments must punish only those crimes for which they were created:

It is in the common interest not only that crimes not be committed, but that they be rarer in proportion to the harm they do to society. Hence the obstacles which repel men from committing crimes ought to be made stronger the more those crimes are against the public good and the more inducements there are for com­mitting them. Hence, there must be a proportion between crimes and punishments.

In Beccaria’s view,

It is impossible to foresee all the mischiefs which arise from the universal struggle of the human emotions. They multiply at a compound rate with the growth of population and with the criss-crossing of private interests, which cannot be geo­metrically directed towards the public utility. In political arithmetic, we must substitute the calculus of probabilities for mathematical exactitude. Even a cur­sory look at history shows that disorder grows as the boundaries of empires expand. As patriotic sentiment correspondingly wanes, there is a growth in the motives for crime insofar as each individual has an interest in that very disorder: therefore, the need to stiffen the punishments continually increases.

Beccaria strongly emphasizes the need for punishment to be proportionate to the gravity of the offence. In his utilitarian approach, the gravity should be evaluated on the basis of the harmfulness of the criminal conduct. Crimes, as he indicated in other sections of his work, must be categorized according to the harm they impose upon society. His utilitarian approach was in this respect focused on the internalization of the harm done by the criminal. In other portions of his work, however, he evidences a tension between optimal internalization of the harm and effective deterrence. Beccaria indeed believed that penalties should also create proper incentives for the marginal choices of criminals: the threatened punishment should guarantee that individuals choose lesser rather than greater crimes.

The measure of crimes

According to Beccaria the only true measure of crimes should be the harm that they have caused to society.

In this respect, Beccaria’s position is clearly in line with the prevalent economic idea of efficient punishment, where the primary criterion of analy­sis is the social harm occasioned by the criminal act, rather than the benefit or utility drawn by the criminal.

The classification of crimes

At this point in the inquiry, Beccaria reviews the principal crimes committed in the society of his own time and according to specific categories and classification.

This may be omitted from the present analysis but, in the interests of inquiry, the following is a list of the crimes reviewed (paragraphs XXVI­XL): 1. crimes of treason; 2. violent crimes; 3. defamation; 4. duelling; 5. theft; 6. contraband; 7. indebtedness; 8. against the public order; 9. para­sites; 10. suicide; 11. crimes difficult to prove; 12. crimes of a particular kind; 13. legislative errors; false ideas of utility; 14. family feuding; 15. fiscal crime.

Crime prevention

It is better to prevent crime than punish it. This, in Beccaria’s view, ‘is the principal goal of all good legislation, which is the art of guiding men to their greatest happiness, or the least unhappiness possible, taking into account all the blessings and evils of life’.

To prevent crime, however, the spectrum of potential crimes should be restricted, which is to say:

[T]he likelihood of crimes is proportional to the number of motives a man might have for committing them, broadening the range of crimes only increases the likelihood of their being committed. The majority of the laws are mere privileges, that is to say, a tribute from everyone for the comfort of the few.

Beccaria continues his analysis by posing the following question:

Do you want to prevent crimes? Then see to it that enlightenment and freedom go hand in hand. The evils which arise from knowledge are in inverse proportion to its diffusion, and the benefits are in direct proportion. A daring impostor, who is always an uncommon man, wins the adoration of an ignorant people and the jeers of an enlightened one. By facilitating the making of comparisons and multiplying the points of view, knowledge counterpoises different sentiments, which modify each other reciprocally, a process that becomes all the easier as we learn to anticipate the same views and the same objections in others. In the face of widespread enlightenment within a nation, foul-mouthed ignorance is silenced and the authority which has no defenses in reason trembles.

Conclusion

Beccaria’s conclusions on the issue of crime and punishment are very mod­ern in approach and noteworthy for their affinity with economic ideals of certain and efficient criminal sanctions: ‘In order that punishment should not be an act of violence perpetrated by one or many upon a private citizen, it is essential that it should be public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime, and determined by the law’. In his view, a modern legal system requires precise laws, with a mini­mum use of discretionary evaluation on the part of judges. Every citizen should be able to predict with confidence the consequences of his or her actions, and should be in a position to act accordingly.