“ON CRIMES AND PUNISHMENTS”

Cesare Beccaria (1764)

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THE ORIGIN OF PUNISHMENTS, AND THE RIGHT TO PUNISH

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No man ever freely sacrificed a portion of his personal liberty merely on behalf of the common good.  That chimera exists only in romances.  If it were possible, every one of us would prefer that the compact binding others did not bind us; every man tends to make himself the centre of his whole world.

                The continuous multiplication of mankind, inconsiderable in itself yet exceeding by far the means that a sterile and uncultivated nature could offer for the satisfaction of increasingly complex needs, united the earliest savages.  These first communities of necessity caused the formation of others to resist the first, and the primitive state of warfare thus passed from individuals to nations.

                Laws are the conditions under which independent and isolate men united to form a society.  Weary of living in a continual state of war, and of enjoying a liberty rendered useless by the uncertainty of preserving it, they sacrificed a part so that they might enjoy the rest of it in peace and safety.  The sum of all, these portions of liberty sacrificed by each for his own good constitutes the sovereignty of a nation, and their legitimate depositary and administrator is the sovereign.  But merely to have established this deposit was not enough; it had to be defended against private usurpations by individuals each of whom always tries not only to withdraw his own share but also to usurp for himself that of others.  Some tangible motives had to be introduced, therefore, to prevent the despotic spirit, which is in every man, from plunging the laws of society into its original chaos […]

                Punishments that exceed what is necessary for protection of the deposit of public security are by their very nature unjust, and punishments are increasingly more just as the safety which the sovereign secures for his subjects is the more sacred and inviolable, and the liberty greater.

CONSEQUENCES

The first consequence of these principles is that only the laws can decree punishments for crimes; authority for this can reside only with the legislator who represents the entire society united by a social contract.  No magistrate (who is part of a society) can, with justice, inflict punishments upon another member of the same society.  But a punishment that exceeds the limit fixed by the laws is just punishment plus another punishment; a magistrate cannot, therefore, under any pretext of zeal or concern for the public good, augment the punishment established for a delinquent citizen.

                The second consequence is that the sovereign, who represents the society itself, can frame only general laws binding all members, but he cannot judge whether someone has violated the social contract, for that would divide the nation into two parts, one represented by the sovereign, who asserts the violation of the contract, and the other by the accused, who denies it.  There must, therefore, be a third party to judge the truth of the fact.  Hence the need for a magistrate whose decisions, from which there can be no appeal, should consist of mere affirmations or denials of particular facts.

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INTERPRETATIONS OF THE LAWS

Judges in criminal cases cannot have the authority to interpret laws, and the reason, again, is that they are not legislators.  Such judges have not received the laws from our ancestors as a family tradition or legacy that leaves to posterity only the burden of obeying them, but they receive them, rather, from the living society, or from the sovereign representing it, who is the legitimate depositary of what actually results from the common will of all […]

                Each man has his own point of view, and, at each different time, a different one.  Thus, the ‘spirit’ of the law would be the product of a judge’s good or bad logic, of his good or bad digestion; it would depend on the violence of his passions, on the weakness of the accused, on the judge’s connections with him, and on all those minute factors that alter the appearances of an object in the fluctuating mind of man.  Thus we see the lot of a citizen subjected to frequent changes in passing through the different courts, and we see the lives of poor wretches become the victims of the false ratiocinations or of the momentary seething ill-humours of a judge who mistakes for a legitimate interpretation that vague product of the jumbled series of notions which his mind stirs up.  Thus we see the same crimes differently punished at different times by the same court, for having consulted not the constant fixed voice of the law but the erring instability of interpretation […]

                In this way citizens acquire that sense of security for their own persons which is just, because it is the object of human association, and useful, because it enables them to calculate accurately the inconveniences of a misdeed.

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PROMPTNESS OF PUNISHMENT

The more promptly and the more closely punishment follows upon the commission of a crime, the more just and useful it will be.  I say more justly, because the criminal is thereby spared the useless and cruel torments of uncertainty, which increase with the vigour of imagination and with the sense of personal weakness; more just, because privation of liberty, being itself a punishment, should not precede the sentence except when necessity requires.  Imprisonment of a citizen, then, is simple custody of his person until he be judged guilty; and this custody, being essentially penal, should be of the least possible duration and of the least possible severity.  The time limit should be determined both by the anticipated length of the trial and by seniority among those who are entitled to be tried first.  The strictness of confinement should be no more than is necessary to prevent him from taking flight or from concealing the proofs of his crimes.  The trial itself should be completed in the briefest possible time.  What crueller contrast than the indolence of a judge and the anguish of a man under accusation – the comforts and pleasures of an insensitive magistrate on one side, and in the other the tears, the squalor of a prisoner?  In general, the weight of punishment and the consequence proof a crime should be that which is most efficacious for others, and which inflicts the least possible hardship upon the person who suffers it; one cannot call legitimate any society which does not maintain, as an infallible principle, that men have wished to subject themselves only to the least possible evils.

                I have said that the promptness of punishments is more useful because when the length of time that passes between the punishment and the misdeed is less, so much the stronger and more lasting in the human mind is the association of these two ideas, crime and punishment; they then come insensibly to be considered, one as the cause, the other as the necessary inevitable effect.  It has been demonstrated that the association of ideas is the cement that forms the entire fabric of the human intellect; without this cement pleasure and pain would be isolated sentiments and of no effect.  The more men depart from general ideas and universal principles, that is, the more vulgar they are, the more apt are they to act merely on immediate and familiar associations, ignoring the more remote and complex ones that serve only men strongly impassioned for the object of their desires; the light of attention illuminates only a single object, leaving the others dark.  They are of service also to more elevated minds, for they have acquired the habit of rapidly surveying many objects at once, and are able with facility to contrast many partial sentiments alone with another, so that the result, which is action, is less dangerous and uncertain.

                Of utmost importance is it, therefore, that the crime and punishment be intimately linked together, if it be desirable that, in crude, vulgar minds, the seductive picture of a particularly advantageous crime should immediately call up the associated idea of punishment.  Long delay always produces the effect of further separating these two ideas; thus, though punishment of a crime may make an impression, it will be less as a punishment than as a spectacle, and will be felt only after the horror of the particular crime, which should serve to reinforce the feeling of punishment, has been much weakened in the hearts of the spectators.

                Another principle serves admirably to draw even closer the important connection between a misdeed and its punishment, namely, that the latter be as much in conformity as possible with the nature of the crime.  This analogy facilitates admirably the contrast that ought to exist between the inducement to crime and the counterforce of punishment, so that the latter may deter and lead the mind toward a goal the very opposite of that toward which the seductive idea of breaking the laws seeks to direct it.

                Those guilty of lesser crimes are usually punished either in the obscurity of a prison or by transportation, to serve as an example, with a distant and therefore almost useless servitude, to nations which they have not offended.  Since men are not induced on the spur of the moment to commit the gravest crimes, public punishment of a great misdeed will be regarded by the majority as something very remote and of improbable occurrence; both public punishment of lesser crimes, which are closer to men’s hearts, will make an impression which, while deterring them from these, deters them even further from the graver crimes.  A proportioning of punishments to one another and to crimes should comprehend not only their force but also the manner of inflicting them.

THE CERTAINTY OF PUNISHMENT: MERCY

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Sometimes a man is freed from punishment for a lesser crime when the offended party chooses to forgive - an act in accord with beneficence and humanity, but contrary to the public good – as if a private citizen, by an act of remission, could eliminate the need for an example, in the same way that he can waive compensation for the injury.  The right to inflict punishment is a right not of an individual, but of all citizens, or of their sovereign.  An individual can renounce his own portion of right, but cannot annul that of others.

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PROPORTION BETWEEN CRIMES AND PUNISHMENTS

It is to the common interest not only that crimes not be committed, but also that they be less frequent in proportion to the harm they cause society.  Therefore, the obstacles that deter men from committing crimes should be stronger in proportion as they are contrary to the public good, and as the inducements to commit them are stronger.  There must, therefore, be a proper proportion between crimes and punishments.

                If pleasure and pain are the motives of sensible beings, if, among the motives for the even the sublimest acts of men, rewards and punishments were designated by the invisible Legislator, for their inexact distribution arises the contradiction, as little observed as it is common, that the punishments punish crimes which they themselves have occasioned.  If an equal punishment be ordained that do not equally injury society, men will not be any more deterred from committing the greater crime, if they find a greater advantage associated with it. 

                Whoever sees the same death penalty for instance, decreed for the killing of a pheasant and for the assassination of a man or for forgery of an important writing, will make no distinction between such crimes, thereby destroying the moral sentiments, which are the work of many centuries and much blood, slowly and with great difficulty registered in the human spirit, and impossible to produce, many believe, without the aid of the most sublime motives and of an enormous apparatus of grave formalities. 

                It is impossible to prevent all disorders in the universal conflict of human passions.  They increase according to a ratio compounded of population and the crossings of particular interests, which cannot be directed with geometric precision to the public utility.  For mathematical exactitude we must substitute, in the arithmetic of politics, the calculation of probabilities.  A glance at the histories will show that disorders increase with the confines of empires.  National sentiment declining in the same proportion, the tendency to commit crimes increases with the increased interest everyone takes in such disorders; thus there is a constantly increasing need to make punishments heavier […] 

                Given the necessity of human association, given the pacts that result from the very opposition of private interests, a scale of disorders is distinguishable, the first grade consisting of those that are immediately destructive of society, and the last, of those that do the least possible injustice to its individual members.  Between these extremes are included all the actions contrary to the public good that are called crimes, and they all descend by insensible gradations from the highest to the lowest.  If geometry were applicable to the infinite and obscure combinations of human actions, there ought to be a corresponding scale of punishments, descending from the greatest to the least; if there were an exact and universal scale of punishments and of crimes, we would have a fairly reliable and common measure of the degrees of tyranny and liberty, of the fund of humanity or of malice, of the various nations.  But it is enough for the wise legislator to mark the principal points of division without disturbing the order, not assigning to crimes of the first grade the punishments of the last. 

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HOW TO PREVENT CRIMES 

It is better to prevent crimes than to punish them.  This is the ultimate end of every good legislation, which, to use the general terms for assessing the goods and evils of life, is the art of leading men to the greatest possible happiness or to the least possible happiness. 

                But heretofore, the means employed have been false and contrary to the end proposed.  It is impossible to reduce the turbulent activity of mankind to a geometric order, without any irregularity and confusion.  As the constant and very simple laws of nature do not impede the planets from disturbing one another in their movements, so in the infinite and very contrary attractions of pleasure and pain, disturbances and disorder cannot be impeded by human laws.  And yet this is the chimera of narrow-minded men when they have power in their grasp.  To prohibit a multitude of indifferent acts is not to prevent crimes that might arise from them, but is rather to create new ones; it is to define by a whim the ideas of virtue and vice which are preached to us as eternal and immutable.  To what should we be reduced if everything were forbidden us that might reduce us to crime!  It would be necessary to deprive man of the use of his senses.  For one motive that drives men to commit a real crime there are a thousand that drive them to commit those indifferent acts which are called crimes by bad laws; and if the probability of crimes is proportionate to the number of motives, to enlarge the sphere of crimes is to increase the probability of their being committed.  The majority of the laws are nothing but privileges, that is, a tribute paid by all to the convenience of some few. 

                Do you want to prevent crimes?  See to it that the laws are clear and simple and that the entire force of the nation is united in their defence, and that no part of it is employed to destroy them.  See to it that the laws favour not so much classes of men as men themselves.  See to it that men fear the laws and fear nothing else.  Fear of the laws is salutary, but fatal and fertile for crimes is one man’s fear of another.  Enslaved men are more voluptuous, more depraved, more cruel than free men.  These study the sciences, give thought to the interests of their country, contemplate grand objects and imitate them, while enslaved men, content with the present moment, seek in the excitement of debauchery a distraction from the emptiness of the condition in which they find themselves. […] 

                Another way of preventing crimes is to direct the interest of the magistracy as a whole to observance rather than corruption of the laws.  The greater the number of magistrates, the less dangerous the abuse of legal power; venality is more difficult among men who observe one another, and their interest in increasing their personal authority diminishes as the portion that would fall to each is less, especially in comparison with the danger involved in the undertaking.  If the sovereign, with his apparatus and pomp, with the severity of his edicts, with the permission he grants for unjust as well as just claims to be advanced by anyone who thinks himself oppressed, accustoms his subjects to fear magistrates more than the laws, [the magistrates] will profit more from this fear than personal and public security will gain from it. 

                Another way of preventing crimes is to reward virtue.  Upon this subject I notice the general silence in the laws of all the nations of our day.  If the prizes offered by the academies to discoverers of useful truths have increased our knowledge and have multiplied good books, why should not prizes distributed by the beneficent hand of the sovereign serve in a similar way to multiple virtuous actions?  The coin of honour is always inexhaustible and fruitful in the hands of the wise distributor. 

                Finally, the surest but most difficult way to prevent crimes is by perfecting education – a subject much too vast and exceeding the limits I have prescribed for myself, a subject, I venture also to say, too intermittently involved with the nature of government for it ever to be, even in the far-off happy ages of society, anything more than a barren field, only here and there cultivated by a few sages.  A great man, who enlightens the world that persecutes him, has indicated plainly and in detail what principal maxims of education are truly useful to men: they are, that it should consist less in a barren multiplicity of things than in a selection and precise definition of them; in substituting originals for the copies of the moral as well as physical phenomena which chance or wilful activity may present to the fresh minds of youths; in leading them to virtue by the easy way of feeling, and directing them away from evil by the infallible one of necessity and convenience, instead of by the uncertain means of command which obtains only simulated and momentary obedience. 

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