The Rationale of Punishment

Book I

General Principles

Chapter VI

Measure of Punishment

Regula, peccatis quae pœnas irroget æquas.
Ne scutica dignum, horribili sectere flagello.
Hor. L. 1. Sat. iii.

Establish a proportion between crimes and punishments—has been said by Montesquieu, Beccaria, and many others. The maxim is, without doubt, a good one, but whilst it is thus confined to general terms, it must be confessed it is more oracular than instructive. Nothing has been accomplished till wherein this proportion consists has been explained, and the rules have been laid down by which it may be determined that a certain measure of punishment ought to be applied to a certain crime.

Punishments may be too small or too great; and there are reasons for not making them too small, as well as not making them too great. The terms minimum and maximum may serve to mark the two extremes of this question, which require equal attention.

With a view of marking out the limits of punishment on the side of the first of these extremes, we may lay it down as a rule:—

1. That the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.

By the profit of the crime, must be understood not only pecuniary profit, but every advantage real or apparent, which has operated as a motive to the commission of the crime.

The profit of the crime is the force which urges a man to delinquency—the pain of the punishment is the force employed to restrain him from it. If the first of these forces be the greater, the crime will be committed; if the second, the crime will not be committed. If then a man, having reaped the profit of a crime, and undergone the punishment, finds the former more than equivalent to the latter, he will go on offending for ever; there is nothing to restrain him. If those, also, who behold him, reckon that the balance of gain is in favour of the delinquent, the punishment will be useless for the purposes of example.

The Anglo-Saxon laws, which fixed a price upon the lives of men; 200 shillings for the murder of a peasant, six times as much for that of a nobleman, and thirty-six times as much for that of the king, evidently trangressed against this rule. In a great number of cases, the punishment would appear nothing, compared with the profit of the crime.

The same error is committed whenever a punishment is established which reaches only to a certain fixed point, which the advantage of the crime may surpass.

Authors of celebrity have been found desirous of establishing a rule precisely the reverse, they have said that the greatness of temptation is a reason for lessening the punishment; because it, lessens the fault; because the more powerful the seduction, the less reason is there for concluding that the offender is depraved. Those, therefore, who are overcome, in this case, naturally inspire us with commiseration.

This may all be very true, and yet afford no reason for departing from the rule. That it may prove effectual, the punishment must be more dreaded than the profit of the crime desired. Besides, an inefficacious punishment is doubly mischievous;—mischievous to the public, since it permits the crime to be committed,—mischievous to the delinquent, since the punishment inflicted upon him is just so much misery in waste. What should we say to the surgeon, who, that he might save his patient a small degree of pain, should only half cure him? What should we think of his humanity, if he should add to his disease the torment of a useless operation?

It is, therefore, desirable that punishment should correspond to every degree of temptation; at the same time, the power of mitigation might be reserved in those cases where the nature of the temptation itself indicates the absence of confirmed depravity, or the possession of benevolence—as might be the case should a father commit a theft that he might supply his starving family with bread.[*]

Rule II. The greater the mischief of the offence, the greater is the expense it may be worth while to be at, in the way of punishment.

This rule is so obvious in itself, that to say anything in proof of it would be needless; but how few are the instances in which it has been observed. It is not long since that women were condemned to be burnt alive for uttering bad money. The punishment of death is still lavished on a multitude of offenses of the least mischievous description. The punishment of burning is still in use in many countries for offenses which might safely be left to the restraint of the moral sanction. It it can be worth while to be at the expense of so terrible a punishment as that of burning alive, it ought to be reserved for murder or incendiarism.

It will be said, perhaps, that the intention of legislators has always been to follow this rule, but that their opinions, as well as those of the people, have fluctuated respecting the relative magnitude and nature of crimes. At one period, witchcraft was regarded as the most mischievous offence. Sorcerers, who sold their souls to the devil, were objects of abhorrence. A heretic, the enemy of the Almighty, drew down divine wrath upon a whole kingdom. To steal property consecrated to divine uses was an offence of a more malignant nature than ordinary theft, the crime being directed against the Divinity. A false estimate being made of these crimes, an undue measure of punishment was applied to them.

Rule III. When two offenses come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.

Two offenses may be said to be in competition, when it is in the power of an individual to commit both. When thieves break into a house, they may execute their purpose in different manners; by simply stealing, by theft accompanied with bodily injury, or murder, or incendiarism. If the punishment is the same for simple thefts as for theft and murder, you give the thieves a motive for committing murder, because this crime adds to the facility of committing the former, and the chance of impunity when it is committed.

The great inconvenience resulting from the infliction of great punishments for small offenses, is, that the power of increasing them in proportion to the magnitude of the offence is thereby lost.[*]

Rule IV. The punishment should be adjusted in such manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.

Thus, for example, in adjusting the punishment for stealing a sum of money, let the magnitude of the punishment be determined by the amount of the sum stolen. If for stealing ten shillings an offender is punished no more than for stealing five; the stealing of the remaining five of those ten shillings is an offence for which there is no punishment at all.

The last object is, whatever mischief is guarded against, to guard against it at as cheap a rate as possible; therefore,—

Rule V. The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given.

Rule VI. That the quantity of punishment actually inflicted on each individual offender, may correspond to the quantity intended for similar offenders in general, the several circumstances influencing sensibility ought always to be taken into the account.

The same nominal punishment is not, for different individuals, the same real punishment. Let the punishment in question be a fine: the sum that would not be felt by a rich man, would be ruin to a poor one. The same ignominious punishment that would fix an indelible stigma upon a man of a certain rank, would not affect a man of a lower rank. The same imprisonment that would be ruin to a man of business, death to an old man, and destruction of reputation to a woman, would be as nothing, or next to nothing, to persons placed in other circumstances.

The law may, by anticipation, provide that such or such a degree of mitigation shall be made in the amount of the punishment, in consideration of such or such circumstances influencing the sensibility of the patient—such as age, sex, rank, &c. But in these cases considerable latitude must be left to the Judge.

Of the above rules of proportion, the four first may serve to mark out the limits on the minimum side; the limits below which a punishment ought not to be diminished; the fifth will mark out the limits on the maximal side, the limits above which it ought not to be increased.

The minimum of punishment is more clearly marked than its maximum. What is too little is more clearly observed than what is too much. What is not sufficient is easily seen, but it is not possible so exactly to distinguish an excess. An approximation only can be attained. The irregularities in the force of temptations, compel the legislator to increase his punishments till they are not merely sufficient to restrain the ordinary desires of men; but also the violence of their desires when unusually excited.

The greatest danger lies in an error on the minimum side, because in this case the punishment is inefficacious; but this error is least likely to occur, a slight degree of attention sufficing for its escape; and when it does exist, it is at the same time clear and manifest, and easy to be remedied. An error on the maximum side, on the contrary, is that to which legislators and men in general are naturally inclined—antipathy, or a want of compassion for individuals who are represented as dangerous and vile, pushes them onward to an undue severity. It is on this side therefore, that we should take the most preparations, as on this side there has been shewn the greatest disposition to err.

By way of supplement and explanation to the first rule, and to make sure of giving to the punishment the superiority over the offence, the three following rules may be laid down.

Rule. VlI.—That the value of the punishment may outweigh the profit of the offence, it must be increased in point of magnitude, in proportion as it falls short in point of certainty.

Rule VIII.—Punishment must be further increased in point of magnitude, in proportion as it falls short in point of proximity.

The profit of a crime is commonly more certain than its punishment, or what amounts to the same thing, appears so to the offender. It is generally more immediate, the temptation to offend is present; the punishment is at a distance. Hence there are two circumstances which weaken the effect of punishment, its uncertainty and its distance.

Suppose the profit of a crime equal to £10 sterling, suppose the chance of punishment as one to two. It is clear that if the punishment, supposing that it were to take place, is not more than £10 sterling, its effect upon a man s mind whilst it continues uncertain, is not equal to a certain loss of £10 sterling: it is only equal to a certain loss of £5 sterling. That it may be rendered equal to the profit of the crime, it must be raised to £20. Unless men are hurried on by outrageous passion, they do not engage in the career of crime without the hope of impunity. If a punishment were to consist only in taking from an offender the fruit of his crime, and this punishment were infallible, there would be no more such crimes committed; for what man would be so insensate as to take the trouble of committing a crime with the certainty of not enjoying its fruits, and the shame of having attempted it? But as there are always some chances of escape, it is necessary to increase the value of the punishment, to counter balance these chances of impunity.

It is therefore true, that the more the certainty of punishment can be augmented, the more it may be diminished in amount. This is one advantage resulting from simplicity of legislation, and excellence of legal procedure.

For the same reason, it is necessary that the punishment should be as near, in point of time, to the crime as possible; because its impression upon the minds of men is weakened by distance; and because this distance adds to the uncertainty of its infliction, by affording fresh chances of escape.

Rule IX.—When the act is conclusively indicative of a habit, such an increase must be given to the punishment as may enable it to outweigh the profit, not only of the individual offence, but of such other like offences as are likely to have been committed with impunity by the same offender.

Severe as this conjectural calculation may appear, It is absolutely necessary in some cases. Of this kind are fraudulent crimes; using false weights or measures, and issuing base coin. If the coiner was only punished according to the value of the single crime of which he is convicted, his fraudulent practice would, upon the whole, be a lucrative one. Punishment would therefore be inefficacious if it did not bear a proportion to the total gain which may be supposed to have been derived, not from one particular act, but from a train of actions of the same kind.

There may be a few other circumstances or considerations which may influence, in some small degree, the demand for punishment; lout as the propriety of these is either not so demonstrable, or not so constant, or the application of them not so determinate, as that of the foregoing, it may be doubted whether they are worth putting on a level with the others.

Rule X.—When a punishment, which in point of quality is particularly well calculated to answer its intention, cannot exist in less than a certain quantity, it may sometimes be of use, for the sake of employing it, to stretch a little beyond that quantity which, on other accounts, would be strictly necessary.

Rule Xl.—In particular, this may be the case where the punishment proposed is of such a nature as to be particularly well calculated to answer the purpose of a moral lesson.

Rule XII.—In adjusting the quantum of punishment, the circumstances by which all punishment may be rendered unprofitable ought to be attended to.

And lastly, as too great a nicety in establishing proportions between punishment and crime would tend to defeat its own object, by rendering the whole matter too complex; we may add:—

Rule XIII.—Among provisions designed to perfect the proportion between punishments and offenses, if any occur which by their own particular good effects would not make up for the harm they would do by adding to the intricacy of the Code, they should be omitted.

The observation of rules of proportion between crimes and punishments has been objected to as useless, because they seem to suppose, that a spirit of calculation has place among the passions of men, who, it is said, never calculate. But dogmatic as this proposition is, it is altogether false. In matters of importance every one calculates. Each individual calculates with more or less correctness, according to the degrees of his information, and the power of the motives which actuate him, but all calculate. It would be hard to say that a madman does not calculate. Happily, the passion of cupidity, which on account of its power, its constancy, and its extent, is most formidable to society; is the passion which is most given to calculation. This, therefore, will be more successfully combated, the more carefully the law turns the balance of profit against it.

[RP, Book I, Chapter V] [RP, Book I, Chapter VII]