Cesare Beccaria

Historical Background:

Cesare Beccaria was born on March 15, 1738 into an Aristocratic family in Milan Italy. He received a Jesuit education, and achieved his degree in 1758. In 1761, he married Teresa di Blasco against his parents wishes. At this time he also had two very close friends, Friends Pietro and Alessandro Verri, and they together formed a society later known as the "academy of fists". This group was "dedicated to waging relentless war against economic disorder, bureaucratic petty tyranny, religious narrow-mindedness, and intellectual pedantry" (Paolucci, pg.xii). With the encouragement of the "academy of fists", Beccaria started to read the enlightened authors of France and England, and while he said very little, he did write essays that his friends assigned him. His first publication was "On Remedies for the Monetary Disorders of Milan in the Year 1762."

Beccaria’s most noted essay, "On Crimes and Punishments" was written with the help of his friends in the "academy of fists". When Beccaria wrote the treatise, his friends recommended topic, gave him the information, elaborated on the subject matter and arranged his written words together into a readable work. While the treatise concerned the criminal justice system, Beccaria had no experience or knowledge of that system, but once again his friends helped him out. Two friends with knowledge and experience in the criminal justice system had the most influence on Beccaria, Alessandro had the official post of "protector of prisoners" in Milan and Peirto was working on the history of torture.

The treatise "On Crimes and Punishments" was published in 1764, but since Beccaria feared a political backlash, he published it anonymously. Only after it was received and accepted by the government, did Beccaria have it published under his name. Many people had a hard time believing that this quiet, unknown man wrote the work, but once again his friends came to his rescue and affirmed that the essay was Beccaria’s own writings.

The treatise was publicly praised by Katherine the Great, Maria Theresa of Austria-Hungry and quoted by Voltaire, Thomas Jefferson and John Adams. The success of the treatise is explained by the author Maestro who stated, "Moreover, the great merit of Baccaira;s book — and this explains its great success and the practical impact that it would soon have in many countries lies in the fact that for the first time the principles of a penal reform were expressed in a systematic and concise way, and the rights of humanity were defended in the clearest terms, with the most logical arguments." (Maestro, pg., 34). It was published in many languages all over the world and was influential in the creation and reform of penal systems across the globe. The treatise discussed issues, government (crime and human rights) that were being widely expressed at that time, and was written in a manner that was both to the point and clearly understood.

The French intellectuals warmly welcomed Beccaria’s treatise, "On Crimes and Punishments" , and he was subsequently invited to go to Paris. Upon arriving in Paris, it was clear that Beccaria did not fit in with the other enlightened intellectuals. The intellectuals thought of him as "childish imbecile without backbone and unable of living away from his mother (Paolucci, pg. xv). Beccaria left Paris without finishing his trip. After Paris he distanced himself from his friends and stopped being part of the "academy of fists" He went to Austria were he was not so well known and worked quietly for the Austrian government. Away from the support of his friends, he never wrote anything else that was worthy of publication. Beccaria died in 1794.

After his death his legend in France and England grew. Many people at that time thought that Beccaria was silenced by the suppression of a tyrannical government. They did not care to know or admit that he brought the silence upon himself. Beccaria is still remember today as a father of classical criminal theory, and as a literally champion of the cause of humanity. His treatise, "On Crimes and Punishments" had a large and lasting impact on the American Constitution, the Bill of Rights and our criminal justice system. So while he only wrote one worthy, published essay, his influence is still felt today.

Beccaria’s Theory:

There are three main legs in which Beccaria’s theory rests. Those are that all individuals possess freewill, rational manner and manpulability. Beccaria, like all classical theorist, believe that all individuals have freewill and make choices on that freewill. The second leg, rational manner, means that all individuals rationally look out for their own personal satisfaction. This is key to the relationship between laws and crime. While individuals will rationally look for their best interest, and this might entail deviant acts and the law, which goal is to preserve the social contract, will try to stop deviant acts. This ends up with the individuals and the society rationally looking for satisfaction, and at times these interests clash. The third leg in which Beccaria’s theory rest is manipulablibily, universally shared human motive of rational self-interest makes human action predictable, generalable and controllable. (Roshier, pg.16). The job of the criminal justice system is to control all deviant acts that an individual with freewill and rational thought might do in the pursuit of personal pleasure. This is made easier by the fact that human actions are predicable and controllable. With the right punishment or threat the criminal justice system can control the freewilled and rational human being. The problem the criminal justice system has is finding the right punishment or threats.

Beccaria expresses not only the need for the criminal justice system, but also the government’s right to have laws and punishments. He believe in the social contract, or the idea that freewill and rational individuals made a choice to live in a society instead of living alone. When one chooses to live in a society, then one chooses to give up some personal liberties in exchange for the safety and comfort of a society. Laws are designed as the framework of the society and the rules for which acts are encouraged or prohibited. Laws are the conditions of a society of freewilled and rational individuals. There is a need to have some system set up in order to ensure that the individuals in the society are protected against any individual or groups that want to take back the personal liberties forfeited in the social contract and those who want to also harm the personal liberties of others in the society. In "On Crimes and Punishments" Beccaria states, "but merely to have established this deposit was not enough; it had to be defended against private usurpation by individuals each of whom always tries not only to withdraw his own share but also to usurp for himself that of others"(Beccaria, pg. 12). So there is a need for and a right to have laws and a criminal justice system to ensure that all individuals in society obey or follow the social contract.

Beccaria felt that while there needs to be a government and a criminal justice system if there is to be a civilized society, he did not believe that the current government or criminal justice system was appropriate. He felt that the government at that time were just a "few remnants of the laws of an ancient predatory people, compiled for a monarch who ruled twelve centuries ago in Constantinople, mixed subsequently with Longobardic tribal customs, and bound together in chaotic volumes of obscure and unauthorized interpreters"( Beccaria, pg. 3). The criminal justice system was not anymore enlightened than the government. He felt that the criminal laws and especially the "barbarous" punishments of the time were in need of reform. His treatise, "On Crimes and Punishments" aimed at creating a blueprint for which the new enlightened criminal justice system would be based.

One thing that is essential to any laws regarding criminal justice is that the laws be created by a "dispassionate student of human nature". He stated that many of the present laws were just "a mere tool of the passions of some, or have arisen from an accidental and temporary need" ( Beccaria, pg. 8). Instead of laws created out of passions, Beccaria stresses the importance of a to create laws for the "greatest happiness shared by the greatest number" . To ensure that laws of that nature were formed, an educated and enlightened male should create the laws that would benefit the entire community, and he should do so without looking for only his benefit or passions. Laws should be enlightened, rational, logical and should be the greatest good for the greatness number. He felt that criminal laws should be formed with rational thought and not passions.

With the creation of criminal laws and a criminal justice system, a rational form of punishment must also be created. Beccaria was very much against the cruel and arbitrary punishments of the day, but he did feel that the government had the right and duty to punish those individuals that threatened the society. The government had only the right to inflict punishments that were necessary for the crime, he stated, "for a punishment to attain its end, the evil which it inflicts has only to exceed the advantage derivable from the crime; in this excess of evil one should include the certainly of punishment and the loss of the good which the crime might have produced. All beyond this is superfluous and for that reason tyrannical"( pg. 43). So while the government could punish it could not go over than what was necessary for the security of the society.

To determine what amount of punishment is necessary of safety and what is excessive, the legislators the "dispassionate student(s) of human nature" must define the punishments for each crime. Since members of society of rational human beings with freewill, they will commit acts if the pleasure of the act out weighs the cost. To stop individuals from committing prohibited acts, punishments must be set to make the punishment just over the amount of pleasure the individuals receive from the deviant acts. Any punishment that grossly or even slightly goes over the amount necessary to stop individuals from committing prohibited acts would be considered unjust.

Beccaria goes even further on his criminological theory, and he gives many examples of how the system should work. He gives the particular principles that a just government would use to maintain the security of the society. He discussed the arrests, court hearings, detention, prison, death penalty, particular crimes and crime prevention. One the first parts of the criminal justice system that Beccaria discusses is the role the courts play in obtaining justice. Some rules that Beccaria writes about are that: laws must be set by legislators, legislators cannot judge persons, judges in criminal cases cannot interpret the laws, laws must be clear and in need of no interpretation, offenders must be judge by its peers (half of the victim half of the criminal), right of the criminal to refuse some jurors, no secret accusation by government, judges should be impartial searcher of truths and judges should not become part of the treasury so that the do not look to criminals to make money. He stresses the importance of laws being clear and known because a rational person can not make a rational choice not to commit an act if he or she does not know that the act is prohibited. He stated that, "when the number of those who can understand the sacred code of laws and hold it in their hands increases, the frequency of crimes will be found to decrease, for undoubtedly ignorance and uncertainly of punishments add much to the eloquence of the passions" ( pg. 17). If laws are clear, need no interpretation and are known to the public than crime will go down.

Beccaria goes further and gives rules and principles for the rights of the offender once arrested. Some of these include: imprisonment before conviction is important and accepted, certainty is demanded if they are to deserve punishment, laws should forbid leading or suggestive questions in trial, no torture to receive a confession and the right for the criminal to defend himself if certainty is found, but not so long as to make the punishment not prompt. Beccaria wrote that oaths were useless, cause it will not make liar tell the truth, "every judge can be my wittiness that no oath ever make any criminal tell the truth" (pg. 29), and he wrote that "it is frivolous to insist that women are too weak to be good witnesses" (pg.22), Also if an individual is going to be imprisoned before the trial the offenders of harsh crimes should be have less time in trial but more time in prison if found guilty. If an individual is imprisoned for a less harsh crime, they should be afforded longer time in trial but less time in prison after found guilty. This is because the offender of the harsh crime is more likely to be found not guilty, and thus the time imprisoned while in trial should be minimized.

When it comes to torture to obtain a confession, Beccaria had very strong words against this practice. He believes that torture to obtain a confession makes an innocent man suffer a punishment he did not deserve or was yet proved . Torture also makes a weak person more likely to confess to a crime than a strong person, without consideration of guilt. The confessions from torture should not be valid since an innocent man might confess just to stop torture, and a person might implicate innocent accomplices. Confessions obtained with torture might make an weak, innocent individual suffer punishment he did not deserve, and it might make a strong, guilty man by not confessing be reward for committing a crime.

Beccaria had many things to write concerning the principles of punishment if once an individual is found guilty of committing a crime. The two main principles is that to be effective punishments must be certain and prompt. He states that, "the certainty of a punishment, even if it be moderate , will always make a stronger impression than the fear of another which is more terrible but combined with the hope of impunity" (Beccaria, pg. 58). To build the connection between the crime and the punishment it is essential that the punishment is prompt. It is written in the treatise of "On Crimes and Punishments" that "the more promptly and the more closely punishment follow upon the commission of a crime, the more just and useful will it be"( Beccaria, pg. 55). In order for a punishment to be effective in stopping further crimes the punishment must be certain and prompt.

Other principles of punishments are written in the treatise. These include, there should be a set amount of incarceration for each crime, individual should be punished for attempting to commit a crime, accomplices working together on a crime should be punished equally, harsher the crime the harsher the punishment, crimes against persons should be corporal and crimes of theft should be fines. Beccaria was a strong opponent to the death penalty, for he felt that a laborious loss of liberty was more harsh than a quick death. He also stated about the death penalty that, " it seems to me absurd that the laws , which are an expression of the public will, which detest and punish homicide, should themselves commit it, and that to deter citizens from murder they order a public one" (Beccaria, pg. 50). Beccaira felt that the death penalty, while cruel and excessive, it also was an ineffective measure to reduce or punish crime.

In the treatise, "On Crimes and Punishments", Beccaria wrote a short chapter on preventing crime because he thought that preventing crime was better than punishing them. He gave nine principles that need to be in place in order to effectively prevent crime. To prevent crime a society must 1) make sure laws are clear and simple, 2) make sure that the entire nation is united in defense, 3) laws not against classes of men, but of men, 4) men must fear laws and nothing else, 5) certainty of outcome of crime, 6) member of society must have knowledge because enlightenment accompanies liberty, 7) reward virtue, 8) perfect education, and finally 9) direct the interest of the magistracy as a whole to observance rather than corruption of the laws. If this nine principles are followed there would be less of a need to follow the other principles of trial and punishments.

Implications on United States:

Around the time that Beccaria was writing "On Crimes and Punishments", the United States was coming together as a nation. Our founding fathers were greatly influenced by Beccaria, Bentham and other classical criminologist. In our Constitution and Bill of Rights, many of the rights that we, as U.S. citizens, accept as fundamental come from the works of classical criminology. Some of our rights include: rules against vagueness, right to public trial, right to be judged by peers, right to dismiss certain jurors, right against unusual punishments, right to speedy trial, right to examine witnesses, coerced or tortured confessions are considered invalid, right to be informed of accused acts and the right to bear arms. Our Constitution was greatly influenced by Beccaria, and many of the rights that he advocated were made the foundation of the United States.

Popularity Today:

The classical view of criminology has been steadily growing in popularity this decade. The criminological theory of Rational Choice takes many of the Classical ideas and makes them more relative to today’s issues. Rational Choice theory believes in freewill, individuals make rational choice to commit crimes, people use the pleasure/pain to make rational choices, people will choice choices that increase their pleasure, the government has the right and duty to preserve the common good and the society, swift, severe and certain punishment will give the government control over the peoples’ choices ad behavior, deterrence and the use of incarceration and punishment to prevent crime.

Rational Choice theory also deals with the issues of general and specific deterrence, the use of incarceration and "just desserts". General deterrence is that the general public will not commit crimes due to a fear of getting caught, prosecuted and severely punished. Specific deterrence is using punishments to prevent a known deviant from committing future crime or said that if a criminal receives enough punishment for committing an act, that criminal will not commit that act again. Incarceration is the use of prisons to punish criminal, and by taking them out of society, criminal are prevented from committing in new harm. "Just desserts" simply means that an individual commits a deviant act then they deserve to be punished by the government. Beccaria did not write in depth about general and specific deterrence, but he did write in a general manner about the use of laws and punishment, if certain and prompt, can deter the general public and specific criminals from committing crimes. Beccaria also supports the Rational Choice Theory of the use of incarceration and "just desserts" for in these topics main concepts in his treatise, On Crime and Punishments. In studying the recent theory of Rational Choice, one can see the large and lasting impact that Beccaria had on the field of criminology.

In recent policies that have been influenced by Beccaria’s work and his ideas are

truth in sentencing, determinant sentences, swift punishments, corporal punishments, look at crime not criminal, punishment not treatment, people rationally choose crime and less judicial discretion. While not all state governments have adopted all these ideas, most have and many are about to follow. Some of the recent policies go against the ideas of Beccaria these are longer sentences, threes strikes and you are out laws, death penalty and gun control. While many of his ideas about human nature and policies on controlling crime have grown in popularity, still many of his ideas are very unpopular.

The recent trend of more gun control goes against Beccaria’s idea about citizens’ right to bare arms. In writing about the utility of gun control, he writes, " false is the idea of utility that sacrifices a thousands real advantages for one imaginary or trifling inconvenience’ that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes" (Beccaria, pg. 87-88). Today many opponents of the gun control laws use Beccaria’s warning as a battle cry. Many use his words, along with the words of other theorists of the time, Thomas Jefferson, Samuel Adams, and James Madison, to support their right to bare arms.

Conclusion

In 1764, the unknown Cesare Beccaria wrote one short treatise called "On Crimes and Punishments" and the world is still using it to guide criminal justice. That short essay greatly impacted the United States’ Constitution, Bill of Rights and justice system. Many reforms that Beccaria called for were incorporated into our system, and his influence stretches from arrest, prosecution and punishment. He never wrote anything else or expanded on his thoughts about crime so many answers will never be answered. Beccaria’s work "On Crimes and Punishments" has become the foundation in which many criminology theories use to build and expand.

 

 

 

 

 

 

 

 

 

 

 

 

Works Cited and Consulted

Beccaria, Cesare. "On Crimes and Punishments." Trans. Henry Paolucci. Englewood

Cliffs, New Jersey: Prentice Hall, 1963.

Beccaria, Cesare. "One Crimes and Punishments and other Writings." Ed. Richard

Bellamy. New York: Cambridge University Press, 1995.

"Classical School". http://home.ici.net/customers/ddemelo/crime/classical.html

"Death Penalty News". http://www.hoexter.netsurf.de/homepages/rossinyol/dp.htm

ILA Research & Information Division Fact Sheet. "America's Founding Fathers: On the

Individual Right to Keep and Bear Arms." http://www.nra.org/research/rifffs.html

Internet Enclyocpida of Philosophy. "Cesare Beccaria".

http://www.utm.edu/research/iep/b/beccaria.htm

Keel, Robert. "Rational Choice and Deterrence Theory".

http://www.umsl.edu/~rkeel/200/ratchoc.html

Maestro, Marcello. Cesare Beccaria and the Origins of Penal Reform. Philadelphia:

Temple University Press, 1973.

Newman, Grames. The Punishment Response. New York: J.B.Lippincott Company,

1979.

Paolucci, Henry. Introduction. "On Crimes and Punishments". By: Cesare Beccaria.

Trans. Henry Paolucci. Englewood, New Jersey: Prentice Hall, 1963.

Roshier, Bob. Controlling Crime: The Classical Perspective in Criminology. Philadelphia:

Open University Press. 1989.


This page is taken from http://www.criminology.fsu.edu/crimtheory/beccaria.htm

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