Strengthening Constitutional Self-Government

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The Founding Fathers on Crime and Punishment

On Principle, v4n1

February 1996

by Ronald J. Pestritto

Crime and criminal punishment are arguably the most important public policy questions in contemporary American politics, and most conservatives believe that the last several years have brought about a great improvement. Certainly the public has pretty much rejected the idea of "rehabilitation" for convicted criminals. It is also true that the last few years have witnessed a remarkable, nationwide increase in levels of punishment. Many states have recently enacted legislation that will significantly increase the amount of time violent felons will spend behind bars through the so-called "three strikes" and "truth-in-sentencing" laws. But while these developments are, no doubt, improvements over the irresponsibly lenient manner in which we approached criminal justice in the 1960s and 1970s, there remains a great deal of confusion about punishment–particularly among conservatives.

In conservative circles and in an increasing of the ordinary public discourse about punishment, one regularly hears that punishment is supposed to "do justice." One also hears that punishment must also be employed as an example to others–to deter. Perhaps the most familiar argument focuses on the protection of the public, by "locking em up." But these arguments represent important theoretical differences about what actually justifies criminal punishment, and these differences play a critical role in Americans’ understanding of their country’s political principles.

For roughly the past fifteen years, most scholarship and political debate has concentrated on the utilitarian issues in punishment: deterrence and incapacitation. Society has asked such questions as: Which policies will reduce the crime rate? How much will they cost? Does more severe punishment deter criminal behavior? In fact, James Q. Wilson’s and Joan Petersilia’s newly released edition of Crime, which contains the best social science on the subject, focuses almost exclusively on such utilitarian questions. While the work contains the finest scholarship on the deterrent and the incapacitative effects of various punishment policies, the question of justice is, for the most part, ignored. Although the debate should consider ways to improve the criminal justice system, it is rare that we focus on whether or not penalties are justly proportional for the crimes. This is where great care must be taken, because social scientists may be able to tell us how much punishment
is required to deter crime, but this may or may not bear any relation to how much punishment a criminal actually deserves.

The tension between a utilitarian understanding of punishment and a justice-based understanding is not new. The American Founding occurred very shortly after the rise of Cesare Beccaria’s penal reform philosophy, which supplies the foundation of the deterrence argument. The debate over punishment was one small part of the battle of ideas in which America’s early statesmen found themselves.

Consideration of the crime itself has been at the root of the justice approach to punishment through the contemporary debates. In this view, punishment is justified–indeed, required–precisely because a crime has been committed. The purpose of punishment is to seek payment for the crime and thus secure justice, the good of society. Most justice theorists believe that the duty to punish comes out of the law’s basis in higher principles of morality; these principles are a guide to punishment of improper behavior.

By contrast, the goal of punishment for "reformers"–principally Beccaria (1738-94) and his followers–became deterrence. Punishment was not fundamentally payment for the crime. In this view, criminal law is no longer an integral part of the principles of justice which constitute society to begin with. Instead of a governing conception of the common good, each society must secure the aggregate self-interest, narrowly understood, of the individuals in a community. Consequently, "reform" theorists believe that the purpose of punishment is prevention. It is by deterring future crime, not seeking justice for past crime, that the individual self-interest of the citizens may be secured.

Many historians have suggested that Beccaria and his utilitarian approach to punishment exercised a great deal of influence over the American Founders. The Enlightenment supposedly caused the Founders to abandon a justice-based understanding of the law. But history does not support this simplistic view. Like Beccaria, many Founders sought a reduction in the severity of criminal penalties, but they did not do so out of a commitment to deterrence. On the contrary, James Madison and James Wilson explicitly rejected such narrow reasoning. Consider that most punishments then were amazingly harsh–well beyond what one would reasonably argue was merited by the offense. For some time, the criminal law in the Virginia colony stipulated the penalty of death for stealing fruits or vegetables.

The concern for justice–not simply deterrence of vengeance–also holds for Benjamin Franklin, whom many historians have erroneously considered an admirer of Beccaria’s ideas. Though Franklin, like many Founders, proposed reduced criminal penalties, his concern was justice, not deterrence. In fact, Franklin argues that it is misguided belief that leads to unjust punishments. "It seems to have been thought," he writes, "that this kind of Innocence may be punished by way of Preventing crimes." In fact, he argues that it would be unjust to punish primarily for the sake of deterrence. Franklin related the following example:


"[There was] the Reply of Judge Burnet to the convict Horse-stealer, who, being ask’d what he had to say why Judgement of Death should not pass against him, and answering, that it was hard to hang a man for only stealing a Horse, was told by the judge, "Man thou art not to be hang’d only for stealing, but that Horses may not be stolen."

Franklin rejects the judge’s position on the basis of the proportionality that is required by the natural law. "The man’s Answer, if candidly examined, will I imagine appear reasonable, as founded on the Eternal Principle of Justice and Equity, the Punishments should be proportioned to the Offences."

Although what one might label the politically correct attitude on punishment today is nearly the opposite of that encountered by the Founders, the proper principle remains the same. Today, the public’s moral sense increasingly recognizes that punishments are unjust not because they are too severe, but because they are too lenient. This had become the overwhelming public outcry in favor of longer prison terms for criminals. The academics and media elite have characterized this outcry as the result of a vengeful public whipped up into a frenzy about crime. In their state of irrationality, the left implies, citizens are incapable of making calm, reasonable judgements about the criminal law. The truth is, of course, that punishment practices of the recent past have, for the most part, been strikingly lenient. Thoughtful and considered public opinion is capable of recognizing when criminals are not receiving the punishments they deserve.

Recent developments with "truth-in-sentencing" laws and the elimination of parole in some states are encouraging signs that the justice approach to punishment may be making a comeback. As conservatives weigh in on these questions, they must be careful about relying exclusively on the arguments of deterrence and incapacitation. The principles of justice, desert, and proportionality must guide our approach to the criminal law, just as they guided our Founders.

Ronald J. Pestritto, Jr. teaches politics at the University of Dallas and is working on a book on crime and punishment in America.

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