Cesare [ses-sar, rhymes with jar] ] Beccaria [bek-ária, rhymes with Daria] is considered the father of modern criminal law and criminology for his seminal book On Crimes and Punishments first published in 1764. The book is a long essay written anonymously to avoid backlash from the 18th Century government authorities. It was immediately well received among philosophers in Europe and was popular among America’s founding fathers. It was translated from the original Italian into French and English soon after it first appeared in Italy.
Beccaria introduced two new ideas in his essay turned into a book, that both torture and capital punishment should be abolished. He considered torture to obtain a conviction to be barbaric and not effective to separating the innocent from the guilty. He relied on what has become known as the Natural Public Law Argument for his position on capital punishment. Beccaria’s advice on torture was accepted and adopted by the American Founding Fathers with their inclusion of the 8th Amendment in the Bill of Rights. They did not care much for his second proposal on capital punishment.
The 8th Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” All today agree that the 8th Amendment prohibits torture to obtain confessions, but all polls of public opinion in the United States show a majority in favor of capital punishment.
Between 1972 and 1976 the U.S. Supreme Court tried to persuade America that the 8th Amendment prohibited capital punishment. That effort was a spectacular failure and the Supreme Court gave it up in 1979, although imposing special standards and procedures that must be followed in all cases where the prosecution intends to seek the death penalty. The court had no right to do this, but did it anyone as they have done a many other occasions. These are laws and laws are supposed to be made by Congress.
Foremost of these standards and procedures are heightened due process in death penalty cases and automatic appeals of trial court death sentences. The Supreme Court’s attempt to infer a ban on the death penalty in all cases from the words “cruel and unusual punishment” contained in the 8th Amendment was a farce from the beginning. No such argument had been raised between the time the Constitution was ratified on June 21, 1788 and Furman v. Georgia was issued on June 29, 1972. Today 32 states have the death penalty and 18 states do not. Some or even many of those states that have abolished the death penalty would get it back if their citizens were ever allowed to vote on the matter.
Taking an opposite stance tp Beccaria, Georgetown University Professor and philosopher Walter Berns (1919-2015) wrote a book on the death penalty in 1979, For Capital Punishment: Crime and the Morality of the Death Penalty.
Berns considers, and demolishes, the popular arguments against the death penalty. These are: The Biblical Argument, The Natural Public Law Argument, The Argument Reflecting the Dignity of Man, The Deterrence Argument, and The Constitutional Argument.
Berns then goes on to propound on several issues surrounding the death penalty such as the invention of the penitentiary, rehabilitation of criminals, blaming crime on society, deterrence of crime, and the morality of punishment.
Then there are two others that will shock many people but didn’t shock me in the least. That’s because I find them rational and impelling. They are: The Immorality of abolishing capital punishment and the moral necessity for capital punishment.
If all this interested you, used copies of Berns’ book are available cheap. It’s no longer in print, which is a shame. The alternative is to come back here from time to time where I will be posting on the arguments against the death penalty that Berns describes, and exposing the vacuousness of them all.
Beccaria’s 1765 book is not out of print. New paperback versions are available at Amazon. Here’s something interesting I found in Beccaria. He was against gun control laws, and remember, America’s founding fathers read Beccari. Referring to gun control laws as laws based on “false ideas of utility”, Beccaria wrote:
“The laws of this nature are those which forbid to wear arms, disarming those only who are not disposed to commit the crime which the laws mean to prevent.” [These laws] certainly make the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed persons”.
Thomas Jefferson noted this passage in his “Legal Commonplace Book”.
More on the arguments against capital punishment soon. Reading this in future will equip you to argue intelligently on either side of the capital punishment issue. So would reading Walter Berns, but I will write a brief synopsis of each that might make Berns easier reading.