This paper attempts to analyse Bacceria’s (1764) “On Crimes and Punishment” article. In order to do so, the paper firstly summarises the article, highlighting the key issues raised. This is followed by a brief commentary on the significance of the text in relation to the development of criminology.
A definition of two key concepts used in the text will be provided. Finally, the paper compares the article with Wilson and Keeling’s (1997) “Broken Windows” and Packer’s (1969) “Two Models of the Criminal Process” articles by looking at the theoretical and disciplinary perspectives of all three texts, the types of evidence used and the contribution each of the three has made to the development of;In “On Crimes and Punishments”, Beccaria proposed a broad prescription for reform of the criminal justice system to make it more logical and rational. He adopted the concept of the “social contract”, arguing that citizens agreed to give up some of their personal freedom in order to grant the state powers to enforce laws and punish offenders in order to preserve social harmony. In return, the state must not abuse the fundamental rights of the individual. Because criminal laws place restrictions on individual freedom, they should be restricted in scope. Laws should reflect “the necessary conditions of the social contract, and punishments should exist only to defend the total sacrificed liberties against the usurpation of those liberties by other individuals (Reid 1976:109)”. He further claimed that “every punishment which does not arise from absolute necessity is tyrannical (Beccaria 1764:2)”.Beccaria also claimed that only laws can make a ruling on crimes and authority for this can reside only with the legislators and not with the judiciary.
Judges cannot have the authority to interpret laws. Instead, they should apply syllogism. “The major should be the general law; the minor, the conformity of the action, or its opposition to the laws; the conclusion, liberty, or punishment (Beccaria 1764:3)”. If judges were not constrained, or if they desired to frame even a single additional syllogism, uncertainty would occur.
Beccaria has stressed the importance of publishing laws and legislations so that the public is aware of what they are and in turn may support their intents and purposes. “Without written laws no society will ever acquire a fixed form of government in which the power is vested in the whole and not in any part of the society (Beccaria 1764:4)”. Written laws make the public the guardians of the laws.Crimes committed and the punishments that they attract must be proportional to one another, as punishment is “destructive in of the public safety and happiness, and as the inducements to commit them are stronger (Beccaria 1964:5)”. Furthermore, punishment should be based on retribution and not exceed that which is necessary for effective crime prevention and deterrence. For punishment to attain its end, the evil which it inflicts only has to exceed the advantages which can be derived from the crime. Everything beyond this is tyrannical and it emboldens men to commit the very wrongs it is supposed to prevent. The purpose of punishment is “not to torment a sensible being, nor to undo a crime already committed”.
Instead, the intention is to “to prevent the criminal from doing further injury to society and to prevent others from committing the like offences” (Beccaria 1764:6-7).To Beccaria, the true measure of crime is harm done to society and not the intention of the person who commits the crimes. He also argues that the law should not distinguish between classes. A person should be tried by a jury of his peers, and the jury should reflect class differences between the offender and the victim. Beccaria further asserts that trials should be made public so that “opinion, which is the best or the only cement of society, may curb the authority of the powerful, and the passions of the judge, and that the people may say that they are protected by the laws and are not slaves (Beccaria 1764:7)”.Beccaria proposed for torture and secret accusations to be abolished arguing that “secret accusations are a manifest abuse” and” torture of a criminal during the course of his trial a cruelty” (Beccaria 1764:8). He further argued that capital punishment should be abolished and replaced by imprisonment as it “is not authorized by any right.
.. it is neither necessary nor useful (Beccaria 1764:10)”. He argued that the death penalty should be replaced by extended imprisonment with hard labour as this was more terrible than death.The more close and prompt the punishment, the more just and useful it will be because “it spares the criminal the cruel and superfluous torment of uncertainty, which increases in proportion to the strength of his imagination and the sense of his weaknesses; and because the privation of liberty, being a punishment, ought to be inflicted before condemnation but for as short a time as possible (Beccaria 1764:8)”. Detaining people in prisons before the court should be as short as possible and with as little severity as possible. “The smaller the interval of time the stronger and more lasting will be the association of the two ideas of crime and punishment (Beccaria 1764:8)”.
Moreover, the certainty of punishment will always make a stronger impression than the severity of punishment with the hopes of escaping. “If punishment be very sever, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first (Beccaria 1764:9)”. Cruel punishments should also be avoided because they create impossibility of establishing an exact proportion between the crime and punishment and create impunity.Beccaria had realised that due processes and the presumption of innocence were crucial in the fair and equitable administration of justice.
For this reason, he called for time as well as the means to allow criminal’s justification, which is to be fixed by the law. In his final argument, Beccaria claims that it is better to prevent crime than to punish it. “This is the fundamental principle of good legislation, which is the art of conducting men to the maximum of happiness, and to the minimum of misery, if we may apply this mathematical expression to the good and evil of life (Beccaria 1764: 10)”. Therefore, punishment was only a last resort.Beccaria is the founder of classical criminology (Vold et al 1998). His “popular success steamed from what he wrote, when and where he wrote (Jones 1986:6)” His work is significant because it challenged the spiritualistic approach that had dominated European thinking for over a thousand years. Beccaria removed all spiritual elements from his explanation of crime.
As his ideas were quiet radical at the time, he was required to publish his book anonymously and defended himself against charges that he was an unbeliever or a revolutionary. Beccaria’s ideas served to “highlight the barbarity of the late-18th century criminal justice system (Hazlehurst 1996:17)”. According to Vold et al (1998), Beccaria sought to change excessive and cruel punishments by applying the rationalist, social contract ideas to crime and criminal justice. He was also concerned with the problem of inequality in society, implying that it was wrong to punish lawbreakers when the laws themselves were unjust.Beccaria’s position in relation to free-will has been debated among criminologists.
It is usually accepted that his work provides a general justification for the use of punishment in the control of crime. Some argue that Beccaria’s assumption was that humans are rational beings who choose courses of action that are likely to give them pleasure whilst avoiding activities that are painful (Bentham 1789, Hazlehurst 1996). The focus here is on voluntarism, or rational free will. Since offenders are regarded as entirely responsible for their actions, they deserve to be punished.Thus, the law should seek to deter both the individual and others from engaging in legally offensive behaviour through the threat of inflicting pain (White and Perrone 2000, Hazlehurst 1996). This was attractive to legal authorities because it was based on the social contract theory which supports the uniform enforcement of laws without questioning whether these laws were fair or just. However, Beirne and Messerschmidt (1994) argue that Beccaria’s book actually constituted a fundamental break from the concepts of free will and that his intent was to move to a deterministic stance.
They claim that Beccaria’s arguments, that human behaviour was predictable and controllable, and that public, prompt, minimal and appropriate punishments would result in lower rates of crime, were highly deterministic ones, against the theological assertions about human free will. They further claim that although Beccaria focused on the causal impact of criminal justice policies on criminal behaviour, he also pointed to the factors in larger societies that also had a causal impact on crime, such as education, poverty and economic inequality, but he had done that carefully as he feared retribution.According to Hazlehurst (1996), even more important for the book’s acceptance was the fact that the American Revolution of 1776 and the French Revolution of 1789 occurred soon after its publication. Both revolutions were guided by ideas of Naturalism and of the social contract whereas Beccaria’s ideas were the basis for the French Code of 1791 and their new criminal justice system. From America and France, Beccaria’s ideas spread to the rest of the industrialised world.
Beccaria’s ideas were adopted and further developed by neo-classicists, positivists and modern agencies of social control (Vold et al 1998, Hazlehurst 1996, Taylor, Walton and Young 1973). Neoclassicists provided the modifications necessary for the administration of the criminal law based on classical theory that resulted from practical experience (Vold et al 1998). Later transition form classical theories to positivist theories marked a continuing development in the direction to which Beccaria pointed. It has been further claimed that Beccaria’s view is now “the major model of human behaviour held to by agencies of social control in all advanced industrial societies” (Taylor, Walton and Young 1973:9-10).Social Contract”By virtue of the social contract citizens agreed to give up some of their personal freedom and grant the state power to enforce laws and punish offenders in order to preserve social harmony, in return, the state must not abuse the fundamental rights of the individual (Hazlehurst 1996:16)”.
“People naturally pursue their own interests without caring about whether they hurt anyone else. This leads to a war of “each against all”. People are rational enough to realize that this situation is not in anyone’s interest. So people agree to giver up their own selfish behaviour as long as everyone else does the same thing at the same time.
Everyone who agrees to the social contact also agrees to grant the state the right to use force to maintain the contract (Volt 1998:15-16)”. “Beginning with Thomas Hobbes, social contract thinkers substituted naturalistic arguments for the spiritualistic arguments (Vold 1998)”.PunishmentPunishments are “seen as a reflection of the system out of which they emerge, and of community values which they are supposed to reflect. Specific forms of penalty depend on the historical and cultural setting within which they are enforced. It is a complex set of interlinked processes and institutions rather than a uniform object or event (Findlay et al 2000:204-206)”. According to Findley et al (2000), punishment rely on wider socio-political considerations and should not be regarded always as the most appropriate response to the crime problem. In their simplest form the principles of punishment include “retribution, rehabilitation, deterrence, community protection (Findley et al 2000:211)”, and “denunciation and public reprobation (White and Perrone 2000:142)”.Beccaria would not agree with Wilson and Keeling on issues of decriminalisation and parsimony.
Wilson and Keeling suggest that “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken. Therefore, it is important to deal with behaviour that is “not strictly illegal”. What this means is that a zero tolerance approach is needed when addressing community disorder and that no exception should be given for minor offences that “do not harm others”.Beccaria would agree with this only to a very limited extent. Beccaria would probably recognise that zero tolerance could demonstrate and promote the certainty and promptness of a punishment. However, according to Beccaria, for punishment to attain its end, the evil which it inflicts has only to exceed the advantage derivable from the crime. Anything beyond this is superfluous and for that reason tyrannical.
Beccaria would further argue that zero tolerance does not provide for a proper proportion between crimes and punishments.Both, Beccaria’s work and that of Wilson and Keeling have been extremely significant to the development of criminology. Firstly, they are both revolutionary in their own way.
Wilson and Keeling’s work was an attack on the traditional policing approaches which focused merely on crime-fighting. Their argument was that the police are often seen as ineffective in the eyes of the community and that they should protect communities as well as individuals. On the other hand, Beccaria’s work removed all spiritual elements from his explanation of crime, challenging the spiritualistic approach that had dominated European thinking for over a thousand years.Moreover, both articles led to alternative thinking. Wilson and Keeling’s work led to the introduction of a zero tolerance policing strategy and COMPSTAT police management strategy based on the “Broken Windows” hypothesis (Dixon 1998). These strategies focused on the assumption that clamping down on minor incivilities and disorder can reduce serious crime.
“Broken Windows” hypothesis was also applied in situational crime prevention. Beccaria’s work on the other hand, led to formation of classical thinking, and was further adopted by neo-classicists, positivists and modern agencies of social control.Although both Beccaria and Wilson and Keeling have suggested ways of reducing crime, their approaches differ. According to Wilson and Keeling, crime was to be reduced by clamping down on minor incivilities and disorder, thus reducing the fear of crime. Beccaria on the other hand, suggested that crime could be reduced by means of significant reforms to the criminal justice system. He argued that reformed crime and punishment policies should decrease crime rates.
Beccaria focused on the role of the legislators and judges, the need for written laws, the need for a proper proportion between crimes and punishments, abolishment of torture, secret accusations and capital punishment, the need for a prompts and certain punishments, the need for due process and presumption of innocence, as well as the focus on prevention of crime rather than put the spotlight on punishment.Beccaria and Wilson and Keeling also differ in their explanations of what causes crime. According to Beccaria, crime is caused by the absence of appropriate control measures and by rational people who choose courses of action that give them pleasure and avoid painful activities. On the other hand, Wilson and Keeling argue that crime is caused by inappropriate responses to public disorder, which creates fear and subsequently leads to the weakening of control measures.Similarity between Beccaria’s work and that of Parker (1969) is in that they both criticised the criminal justice system by seeking reforms. Beccaria focused on the role of the legislators and the judiciary, the need for written laws, the need for a proper proportion between crimes and punishments, the abolishment of torture, secret accusations and capital punishment, the need for a prompts and certain punishment, the need for due process rights and the presumption of innocence, and the focus on prevention of crime rather than punishment. Packer on the other hand, argued that decriminalisation and deinstitutionalisation is needed due to a “rough” administration of the criminal justice system.He claimed that the more we learn about the way the system is, the more we realise our distance from the way it ought to be.
Packer provided examples of a very few people getting adequate legal representation, coercion being used when extracting confessions from suspected criminals and the use of evidence gathering techniques that violate the norms of privacy. He further argued that crime control, which focuses on repression of criminal conduct, requires efficiency in terms of high levels of apprehension and conviction, which is not evident in reality.On the other hand, due process model accepts the possibility of error and attempts to prevent and eliminate mistakes.
Packer further claimed that a person is not to be held guilty for a crime by merely showing that in all probability, based upon reliable evidence, he did factually what he is said to have done. Instead, he is to be held guilty if and only if these factual determinations are made in procedurally regular fashion and by authorities acting within competences duly allocated to them. He adds that many requirements such as jurisdiction, venue, statute of limitations, double jeopardy and criminal responsibility have nothing to do with the factual question of whether the person did or did not engage in the conduct that is he/she is being charged for. Packer had also stressed the issue of equality.He claims that the relative financial inability of most persons accused of crime results in treatment very different from that accorded to the small minority of the financially capable. For this reason, its impact has already been substantial and may be expected to be even more so in the future. Finally, Packer argues that there is a wide-spread skepticism about the morality and utility of the criminal sanctions.
The paper has provided a summary of Bacceria’s (1764) “On Crimes and Punishment” article. The paper has also provided a brief commentary on the significance of the text in relation to the development of criminology, analysing issues of its contribution to foundations of classical criminology, challenges to and removal of spiritualism, criticism of extensive and cruel punishment and inequality in society, possible fundamental break with the concept of free will and move to a deterministic stance, its contribution to the French and American Revolutions, and its contribution to neo-classicism, positivism and modern agencies of social control. Finally, the paper has compared Beccaria’s ideas with those of Wilson and Keeling (1982) and Packer’s (1969), in terms of theoretical and disciplinary perspectives employed.