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The Classical School

These notes refer to the classical school [ Cesare Beccaria and Jeremy Bentham ], subsequent revisions of this model [ frequently referred to as the neo-classical school], and contemporary versions of classical thought [rational choice models].

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Before preceding to discuss Beccaria it may be important to discuss the state of criminal justice in Europe to which the classical school was responding. Europe was leaving behind its long history of feudalism and absolute monarchy and turning toward the development of modern nation states that ruled based an rational decision-making powers. However, criminal justice was one of the areas that needed to be updated. Throughout Europe [except in England] the use of torture to secure confessions and force self-incriminating testimony had been widespread. Michel Foucault's description of the execution of Damiens for attempted regicide shows just how brutal traditional justice could be in France. In England, the standard penalty for conviction of a felony was death. In addition, capital punishment had been combined with estate forfeiture, leaving the felon's widow and children penniless. The "corruption of blood" made it legally impossible for the convict's parents to pass own their wealth to their own grandchildren. Many accused Englishmen allowed themselves to be crushed to death (piene forte et dure) rather than risk a trial and leave their families destitute.

It was with knowledge of such history that Beccaria developed his ideas concerning criminal behavior and how best to control it. However, Beccaria and other utilitarians did not develop their ideas in a vacuum. There were other Enlightenment thinkers such as Hobbes, Locke, and Rousseau who helped to create the intellectual climate in which Beccaria worked. There were a number of beliefs about human behavior that most "reasoned" intellectuals shared. These included:

bullet(I.) The belief that pain and suffering were a natural part of the human condition.
bullet(2.) Humankind is a rational species.
bullet(3.) What controls behavior is the human will.
bullet(4.) Although supernatural [and natural] forces might influence the will, in regard to specific actions the will was free to choose.
bullet(5.) The principal means of controlling behavior is fear, particularly fear of pain or punishment. In this way the will could be directed to make correct choices.
bullet(6.) Since the state had the right to punish behavior, it ought to do so in an organized manner which included the centralized administration of law enforcement, courts, and correctional practices.

Other important points to be made about Beccaria.

bullet1. Beccaria did not develop a new explanation for criminal behavior. He merely accepted the taken-for granted beliefs of his era. He sought solely to rationalize punishments.
bullet2. Beccaria opposed allowing judges the type of broad discretion they then enjoyed.
bullet3. The ultimate source of law must be the legislature, not the judiciary. Beccaria is here attacking the common law tradition. Today's conservatives attack judicial activism, i.e., in the recent U.S. Supreme Court.
bullet4. The principal role of the judiciary is in determining guilt, not deciding on punishments.
bullet5. A truly rational system of criminal justice would be based on a scale of crimes and punishments: e.g. first, second, and third degree felonies. Each would be assigned a specific punishment that included ascending severity based an the level of seriousness of the offense.
bullet6. The severity of the crime for which one is ultimately punished must be based upon the actual act committed, not the level of intent involved. If you only intended to maim someone but they died as a result of the injuries inflicted, the perpetrator must be charged with murder.

For a rational system of criminal justice to work, punishment must be certain, swift, and proportional. The ultimate goal was to insure that the benefits of crime never outweighed the potential pain from punishments the offender would receive. As rational, calculating human beings, most would avoid crime under such a system. Certainty required that all offenders be punished; the more criminals who escaped punishment the less the impact on the minds of others contemplating such behavior. Swiftness was also important. If too long a time lapsed between the crime and its punishment, this would also lessen the deterrent effect on future criminality. Beccaria’s emphasis on proportionality led him to oppose the use of the death penalty for all but the some serious crime. Capital punishment would have no impact if its use were for minor offenses.

 

The Neo-classical School

A number of criminal justice historians have noticed the pendulum like nature of criminological theory. Once a particular model becomes "dominant" its antithesis is argued by "reformers. The neo-classical approach is criminology is not a true anti-thesis but a form of revisionism. Neo-classical criminologists recognized that the free will approach had a number of shortcomings. Among them was the English jurist  William Blackstone.

Neo-classical criminologists considered the types of criminal behavior best explained by the classical model and what types of criminal behavior the model is inadequate to explain. Some of the objections pointed out by neo-classical thinkers included exceptions long accepted by criminal justice systems. These included classic criminal defenses such as self-defense or mistake of fact. Also, long recognized was the fact that not all persons were completely responsible for their own actions. For example, should children be expected to behave with the same level of responsibility as adults? When does a child become fully responsible for their own actions?

Also noted was the fact that same people appeared to be compelled by forces beyond their rational control. While a supernatural "possession" model had previously accounted for some of this behavior, the decline in belief in supernatural forces was matched by an increasingly positive treatment toward "mental illness" type explanations. There were some who behaved "irrationally." Separating the rational from the irrational has become a continuing problem for modern criminal justice systems.

Another area of long legal concern was whether individuals can be influenced by others to do things they would not normally do, and whether they should be exonerated by the courts in such instances. Duress and entrapment are criminal defenses based on this premise.

 

Modern Versions of the Classical School

Within criminology the classical school's importance diminished as positivist explanations of criminal behavior emerged and became dominant. However, most modern criminal justice systems have never rejected free will explanations of criminal behavior. In the United States and some other constitutional democracies, the classical model has been thwarted more by the system in which it is implanted (one requiring an adversarial procedure and due process) than by positivism. (See the Packer article in the reader)

The classical model has re-emerged in criminology and American jurisprudence as the "justice model" and rational choice explanations. These approaches are advocated by theorists such as David Fogel, Ernest van den Haag, James Q. Wilson, and Ronald Clarke. Collectively they would favor the following:

bullet1. Doing away with indeterminate sentencing and its replacement with various forms of determinate sentencing, including sentencing guidelines, mandatory sentences, habitual offender statutes, etc.
bullet2. Truth in sentencing. One should serve one's full sentence and not receive an early release through parole or prison overflow control policies.
bullet3. The use of the death penalty. Most favor decreasing the amount of time between sentencing and execution by limiting the appeals process. (Bentham and Beccaria both opposed the death penalty as a punishment so severe it would have no deterrent effect.)
bullet4. Doing away with the exclusionary rule altogether or the allowing of additional "good faith" exceptions for law enforcement infringements an defendants' due process rights.
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5. Continued research on criminal behavior predicated an the idea of free will. It examines phenomenon such as criminal career choices. For example, why would an offender choose to shoplift rather than commit robberies? Why do some career criminals finally decide to stop and become honest productive citizens?

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Links:

Jeremy Bentham (1748-1832)
Cohen & Felson's Routine Activities

Rational Choice and Deterrence Theory
Rational Choice and Sociology
Rational Choice Theory
Rational Choice

Rational Choice Theories
Does Punishment Deter?

 

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This page was last modified November 22, 2005
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