Let the Punishment Fit Crime

Cesare Beccaria, On Crimes and Punishments, Translated by Henry Paolucci. Englewood, 1963.

Criminologists deserve much credit for the research methodologies that they have devised over the past number of centuries. They have used various research techniques, created a platform for a wealth of discussions and generated a significant amount of controversy. Cesare Beccaria, “the father of modern criminology” is arguably one of the most influential criminologists of all time. He was born in Milan in 1738 to a wealthy aristocratic Italian family whose lineage was very well respected. His interest in crime and punishment was initiated by Pietro and Alessandro Verri who were two brothers “” Pietro was “a distinguished Italian economist and Alessandro was a noted creative writer”. In addition, he was also a well respected politician, philosopher and economist. His fascination with philosophy can be accredited to being exposed to the works of Montesquieu. However, until 1764, Beccaria was virtually unknown, but it was in this year that he published his exceptional work, On Crimes and Punishment. This treatise was so influential that it is still being used today as a tool to shape the criminal justice system. Beccaria’s work brought great and exciting changes, as at the time of his writings, Europe was overshadowed by noble rank and religion. Unsurprisingly, Beccaria’s work was immediately criticised by a number of groups including lawyers, judges and the Catholic Church. Beccaria can be accredited with establishing the classical basis for an interest in an economic interpretation of criminal justice and the part that criminal sanctions have to play in this arena. Classical criminology can be described as “an economic theory of crime that focuses on the criminal act as defined by law. The key idea is that people are more or less free to choose crime as one of a range of behavioural options. The relative attractiveness of any choice is affected by the costs associated with criminal action.” Beccaria’s work took a clear utilitarian stance, as his methodology was based on the greatest happiness for the greatest number principle. This work was also one of the first critiques of capital punishment. His theory did not consider capital punishment an appropriate method to discourage crime, and he argued that imprisonment was a more suitable and forceful deterrent. Beccaria’s ambition was to make punishments fairer and more consistent and in this respect, he demanded new and at the time dramatic changes to the criminal justice system of the eighteenth century.

Methodologies for Studying Crime

Before embarking on a discussion of the methodology employed by Beccaria to his studies on crimes and punishment, it is imperative to consider the general methods available for studying crime. It is vital to be able to appreciate the various research methods available, because “an understanding of research methods can help decision makers critically evaluate reports and recognise when methods are properly and improperly applied”. In Principles of Methodology, the authors submit that there are two such methods,

“The first is the commonsense approach by which people become acquainted with a community, a business, politics, or any social issue. This methodology is used by all social scientists, although it is not the methodology of science outlined in textbooks on logic. It consists of collecting and organising data that are believed to be significant . . . a person using this methodology is able to take into account a wide variety of conditions which could not be considered if the methodology were more precise . . . the second type of methodology is the systematic study of individuals . . . this methodology is more precise and “scientific” than the first. It deals with specific variables and, usually, specific types of criminal behaviour . . . the more popular methods included within the scope of this methodology [include] statistics, individual case study, analytic induction, participant observation, and the experimental method”.

Perhaps a more simplified explanation of research methodologies can be divided into two areas, qualitative and quantitative. Qualitative methods are centred on the participant’s words and are carried out by methods such as participant observation and interviews as opposed to groups which are determined in advance by the particular researcher and “do not have a direct numerical interpretation”. On the other hand, quantitative methods consist of surveys and experiments and the data are “either numbers or attributes that can be ordered in terms of magnitude”. A significant proportion of economic research and methodologies on crime has centred on the deterrent effect of the criminal justice system and empirical work has provided some support for the deterrence rationale. Mc Donald has made this observation about Beccaria’s methodology, “methodologically, the work is eclectic, combining an assumed natural law approach, progressive social contract theory, utilitarianism, empirical observation, and a great deal of reforming zeal”. Although empirical research is heavily relied upon in the field of criminology and has huge significance in criminological research, Beccaria did not rely deeply upon it. “It is evident from Beccaria’s rhetoric, his appeal to a single principle and its corollaries, and his infatuation with geometry that his science of law was rather less empirical and more deductive . . . Beccaria relied more heavily on logical coherence”. A short but apt definition of empirical research is “the production of knowledge based on experiment or observation”.

Beccaria’s Methodology

“Beccaria’s text is built upon the work of others; its methodology is to grasp the narratives already accepted as images of the human condition, and to inter-play them to create the new and social space of a “rational penology”. Beccaria joined in the train of the new, more modest, sciences of man”.

Beccaria’s research was spurred on by the fact that he was dissatisfied by the government in power at the particular time and was especially critical of the disproportionate punishments which they enforced. He advocated that the government did not need to excessively punish individuals, but still that they had the right to punish proportionately. He wished that punishments be established to make the punishment slightly exceed the personal satisfaction that the individual achieves from the crime. Any disproportionate punishment would therefore be unjust.

In attempting to discover a strong methodology to discover exactly why people engage in criminal behaviour, Beccaria focused on the amount of personal choice involved. This personal choice rationale is frequently found in rational choice theories. These ideas are embedded in the study of human behaviour as devised by the early classical theories of which Beccaria was a supporter. Beccaria’s methodology developed beyond the criminal sphere and he even extended his ideas in a broad social and philosophical context. In this work, Beccaria developed his methodology by relying on two foundational idealistic methodologies which are social contract and utility. In relation to social contract, Beccaria raised the proposition that punishment is required only to defend the social contract and to ensure that everyone will be encouraged to follow it. This idea of social contract has formed the foundations of the entire work. In relation to utility, Beccaria argues that the method of punishment chosen should be one which has the greatest ability to be of most benefit to society. This is also a clear example of his strong utilitarian views. From his treatise, it is true that Beccaria is not interested in studying punishment for the purpose of revenge, but rather because the purpose of punishment should be to develop a healthier and enhanced society. He considered that the reason for punishment was to deter the individual from repeating the criminal act and also to prevent others from initiating criminal activity. This methodology is practical because the greater the number of criminals who do not receive punishment the less the effect then this will have on deterring others from engaging in criminal activities.

Beccaria’s methodology is further based on the premise that all individuals possess three primary characteristics; freewill, rational manner and manipulability. His methodology for criminal research begins with these three characteristics and how these three components can be researched in order to understand more about crime, and specifically a fitting punishment for such crime. First of all, Beccaria was a typical classical liberalist as he firmly believed that all people have a free will and are capable of making their own choices according to this freewill. He also advocated rational manner which simply means that individuals primarily look after their own interests. However it is submitted that it is inevitable that rational manner can create problems as inevitably the interests of the individual and those of society can often clash, for example in relation to crimes committed by individuals against society. His final theory is that of manipulability, which means that all humans possess the characteristic of self-interest. Therefore one can see why a good criminal justice system is needed. If an individual possess these three characteristics and wishes to gain at society’s expense, a fitting punishment needs to be created which will deter the individual from pursuing self-interest to such extremities.

In light of the above we can understand that Beccaria was a strong supporter of the need for a strong and adequate criminal justice system. His research was based on the premise that individuals possessing freewill and ration had made a conscious decision to live in society as opposed to living on their own. Beccaria advocates that an individual has opted to forfeit some freedoms in return for the security and protection that goes hand in hand with living a society. Laws can therefore be described as the prerequisites of living in a society “” by choosing to live in a society you choose to live by the rules and laws of the particular society. As Beccaria writes at page 7, “they [individuals] sacrifice a portion of this liberty in order to enjoy the remainder in security and tranquillity”. In addition, at page 17, Beccaria stresses the point that the law must be clear and known by all individuals so that the level of crime will fall, “the frequency of crimes will be found to decrease”. Beccaria felt that if people understood the law, the level of crime would decrease. This is practical reasoning, as it would be unjust to punish people for activities which they were not aware were criminal.

Death Penalty

For this author, Beccaria’s most interesting and stimulating methodology has been in relation to his reasons for opposing the death penalty. As aforementioned, Beccaria was strongly opposed to capital punishment and in particular he opposed the death penalty and he gave two reasons why he was in such strong opposition to it. First of all, he questioned the authority of the government to inflict such a punishment on a person for committing a criminal act. He did not find acceptable to punish a crime with the death sentence. Beccaria relied profoundly on the social contract theory in relation to this argument and in the eighteenth century, this was quite a controversial argument to raise. He was of the opinion that the state has only attained their power because of the power vested in it by the people. Therefore, it would be unreasonable for the state to claim power over the lives of the citizens. It is submitted that although individuals should be required to give their consent to being punished, but do they not give their consent by committing the deviant act? It is forwarded that they do.

His second rationale for opposing the death penalty is based on utilitarian reasoning. He argued that death was not as an effective punishment or deterrent than imprisonment. His methodology towards this was that “it is not the intenseness of the paid that has the greatest effect on the mind but its continuance. It is submitted that his reasoning here is superior – imprisonment is a much longer punishment than the death penalty, and it is likely to have a greater impact of the minds of others who are considering committing a crime. This punishment also had the advantage that it would not lessen its intensity as time went on. He writes, “the object “¦ of punishment is simply to prevent the criminal from injuring anew his fellow-citizens, and to deter others from committing similar injuries”. Although applied in a different context, it is submitted that the following research methodology is highly similar to Beccaria’s methodology, “the major aim was understanding rather than measurement. The focus was on discovering how actors defined the situation, the criteria used to make decisions, and the choice of alternative actions”.

Possible Weaknesses in Beccaria’s Methodology

Perhaps the most obvious weakness in Beccaria’s methodology is that he fails to take into account the fact that for many crimes, the individual does not plan to commit deviant acts and may never even consider the costs or negative effects of committing a crime. Therefore he does not allow for the possibility that some individuals may commit a crime on impulse or on the spur of the moment without taking the consequences into consideration. As aforementioned, his rationale was that if a definite and swift punishment were devised which are just greater than the pleasure to be achieved from the criminal act, the individual would be discouraged to engage in deviant behaviour. However if a criminal does not consider the costs, how can this definite and speedy punishment act as a deterrent? The answer is that it cannot.

Another possible problem with his methodology is that he expects all individuals to be aware of the law and in particular to be informed of the punishment for a specific crime. Given the limited information available and lack of education in the eighteenth century, especially for lower class citizens, the idea that all individuals should know the exacting punishment imposed for a crime is a little unrealistic. The law was constantly evolving in the eighteenth century so it would have been difficult for the people of that era to keep abreast of legal developments.

Contributions of Other Researchers

“Perhaps the most perplexing problem raised by the doctrine of the social contract that emerged and flourished in Europe in the seventeenth and eighteenth centuries is that is produced political prescriptions that were profoundly at variance with one another”.

Thomas Hobbes and John Locke were two primary founders of the social contract doctrine so it is imperative to examine each of their methodologies in relation to this contract so heavily relied upon by Beccaria.

Hobbes

Thomas Hobbes is amongst one of the most influential of the modern political philosophers and one of the academics that has had a vast impact on Beccaria. Hobbes asserts that the social contract is an agreement made with other individuals to give up a certain amount of rights in return for other protections. In relation to the connection between social contract and our right to life, Hobbes’ argument is as follows, “people living in a state of nature, without a common power over them to keep them in awe, are in a state of war of every person against every other”. Hobbes asserts that even people who are not by nature evil or greedy, become involved in violence in order to protect themselves. Beccaria has followed this theory of Hobbes because Beccaria contends that in relation to the social contract, individuals concede the least amount of rights possible in order to gain peace. Therefore individuals maintain their right to life and do not have to concede this to the public good. However, like all researchers, Hobbes’ methodology has attracted an element of criticism. For example, Gauthier is of the opinion that Hobbes’ social contract is mislabelled. He states that “he appeals not to a contract, but to a self-interested agreement or convention”. He further clarifies the boundaries of Hobbes’ theory as being “if fully rational persons were in, and could not exit from, a state of nature, then they could not effectively agree on peace, and universal conflict would emerge”. Warburton has also some criticisms of Hobbes work Leviathan because “Hobbes description of the state of nature is that it paints an unduly bleak picture of human nature outside the civilising influence of the state. Hobbes believes that at heart, we are all egoists, constantly seeking to satisfy our desires”. Therefore Hobbes was a firm believer that there were no limits on the lengths that an individual could go to maintain his own protection and indeed survival. However Warburton was of the opinion that there is a good natured, selfless side to mankind, but Hobbes fails to take this into account in his methodology.

Locke

Locke’s formulated his version of the social contract during the period of Enlightment. Locke was in opposition to Hobbes as he believed that there were two constraints on what an individual could do to maintain his survival. These two limitations related to the private property of all and furthermore that every individual had the right to punish those who broke the law. Locke was of the opinion that “the law of nature gives every person not only a right to defend oneself against those who violate the law, but also a right to punish the transgressors”. He also argued that individuals give up their right to life as soon as they begin a state of war with other people. However Beccaria disagreed with this proposition. As capital punishment cannot be justified by Locke’s reasoning, this is at odds with Beccaria’s theory. Beccaria is of the opinion that capital punishment does not deter criminals who wish to engage in deviant behaviour. For example, Beccaria argues that perpetual slavery is a greater deterrent than a single quick act of execution. However, in other ways Locke and Beccaria were in agreement. Locke argued against the common perception during the Enlightenment that the way that humans behaved was influenced by either God or demons. Instead, Locke believed that God gave individuals the power to have a free will and to exercise this free will through the ability to act with reason. In fact Beccaria used this logic as a foundation for pursuing legal reform in this area.

Bentham

Jeremy Bentham was greatly influenced by Beccaria when he read Beccaria’s “On Crimes and Punishment” and adopted his utilitarian views. He was also a well known philosopher, economist, jurist and social reformer. Bentham is perhaps best known for his work An Introduction to the Principles and Morals of Legislation which opens as follows, “nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do”. After this metaphorical opening, Bentham then gives an illustration of utility and expounds his great defence of utility. To him, this was the first principle of morals, legislation and also decision making and he displays the doctrine of utility as a complete moral way of life. Bentham was a strong enthusiast of penal punishment and he particularly liked the idea of a panopticon where the prisoners could be continually watched. In fact, “for Bentham the most compelling instance of the ways in which such principles could be transmogrified into a social good was his beloved scheme for an ideal prison which he termed, with his customary love of neologisms, the Panopticon, since it ensured that the prisoners would be subject to continual supervision.” He advocated that this would improve the behaviour and attitudes of the prisoners through maximising pleasure and minimisation of pain. His famous phrase describes such a prison as a “mill for grinding rogues honest, and idle men industrious”. His methodology meant that if the prisoners worked hard, they knew that they would escape pain and hence their pleasure would be maximised.

Conclusion

“Beccaria’s ability in mathematics led to a number of original and brilliant applications of quantitative methods in the fields of social and political study”.

It is imperative that one understands research methods because such methods provide a basis for an evaluation of method validity which can aid in identifying the various strengths and weaknesses of data collection and analysis. It is also important to remember that research methods must be chosen carefully as their appropriateness may vary. An interview is a perfect method for collecting information from individuals, but it would be a totally inept method of assessing information on social processes for example.

Beccaria’s ground breaking analysis created great change in Europe at a time when many laws were difficult to understand, and judges often gave an interpretation which prioritised their own interests and pleased themselves rather than giving a fair judgement. Anyone who was engaged in criminal behaviour or was accused of deviant behaviour had very little support by way of defence or protection. There were no facilities such as legal protection, and access to family or friends was completely unheard of. Punishments were extremely severe and could include a wide range of cruelty consisting of mutilation, branding, whipping and death by any means imaginable. Beccaria’s methodology helped to bring around much needed reforms and more humane methods of punishment and encouraged more rationality when deciding on the type of punishment to be inflicted on a particular offender. As aforementioned, the theory of deterrence owes its origins to the classical school who was its main founder. The classical school continues to play a central part in criminological research and the devising of new methodologies. Although Beccaria brought about significant changes, it is strange that his excellent proposals against capital punishment did not prevail as influentially as he had hoped. “Beccaria’s treatise had a strong influence on the attitude of people and governments toward the administration of justice, and many penal reforms were soon enacted in accordance with his principles. However as far as capital punishmet was concerned, the idea of its complete abolition did not prevail and, despite Beccaria’s contention to the contrary, it continued to be viewed as a legitimate punishment and a powerful preventive of crime.

Criminologist research in this area is still evolving and the examination of many more key issues remains. Deterrence is quite a complex forum as one commentator has aptly written, “deterrence is a difficult area for empirical study, and much attention is being paid to the improvement of the methods of research in the hope of improving the confidence that the general public and policy makers may have in the resultant findings. Beccaria thrived on such complexities and his thesis is dedicated to progress and change. His methodology was based on the premise that it was necessary to move beyond the barbarous laws of the era in which he lived, and to create more peaceful and fair criminal sanctions. He wished to inflict a lasting impression on the minds of criminals, but he did not wish to inflict any injury on the bodies of such criminals. We can still learn from Beccaria in the twenty first century as we seek to continually balance the power between the state and the individual. In essence, we still require the equal criminal justice system which Beccaria began fighting for in the eighteenth century.

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