ad_Punt_Prop_econ

UCL Bentham Project Journal of Bentham Studies 11 (2009) 1 PUNISHMENT, PROPORTIONALITY AND THE ECONOMIC ANALYSIS OF CRIME Anthony J. Draper University College London Since Gary Becker’s ground-breaking intervention in 1968 economists have come to regard crime and punishment not only as a legitimate area of interest for economic analysis, but also an especially important one.1 As Becker himself acknowledged, much contemporary economic analysis of these broad social issues draws on the foundational work undertaken by the consequentialist political theorists of the eighteenth century, and on the ideas of Jeremy Bentham and Cesare Beccaria in particular.2 Becker saw his role as updating the thinking of these theorists, and of re-emphasising the relevance of their analysis for twentieth-century economic theory. The analysis pursued here seeks to underline Becker’s observations on the validity of these earlier enquiries and aims to offer further details on the development of those eighteenth-century lines of enquiry which are proving so useful in more recent considerations of the economic perspectives on crime and punishment. The emphasis here will be on Bentham’s discussion of punishment as optimal policy in response to offending behaviour. Four key themes will be explored. First, the range of Bentham’s conception of an ‘economic’ approach to punishment will be explored, and the relationship of his penal theory to his broader understanding of political economy will be examined. Second, the cost-benefit approach to punishment grew clearly from an established tradition of consequentialist thinking and the context and influences on Bentham’s own utilitarian brand of economic analysis will be identified. Third, the question of leniency in punishment is intrinsically connected to Bentham’s analysis of the nature of offences and this focus for his theory will be examined, and significant distinctions illustrated between the consequentialist theories of Bentham and Beccaria. Finally, Bentham’s analysis involved a sophisticated notion of ‘economy’ that allowed his calculative model to accommodate an 1 Gary S. Becker, ‘Crime and Punishment: An Economic Approach’, Journal of Political Economy, 76, no. 2 (1968), 169-217. 2 Of Bentham’s works, texts derived from Dumont’s Traités de législation civile et pénale, ed. É. Dumont, 3 vols. (Paris, 1802) have usually been the source for Bentham’s views on crime and punishment. This discussion draws primarily on his An Introduction to the Principles of Morals and Legislation, (London, 1789); the version used being An Introduction to the Principles of Morals and Legislation, ed. J.H. Burns and H.L.A. Hart (London, 1970), and published as part of The Collected Works of Jeremy Bentham, ed. J.H. Burns et al. (London, 1968-1981; Oxford, 1982- ), hereafter IPML. Other valuable works dealing with Bentham’s penal theory included: Théorie des peines et des récompenses, ed. E. Dumont, 2 vols. (London, 1811); The Rationale of Punishment, ed. R. Smith (London, 1830); ‘Principles of Penal Law’, in The Works of Jeremy Bentham, ed. J. Bowring, 11 vols. (Edinburgh, 1838-43), i, 336-580. Cesare Beccaria was a young Lombardian aristocrat who rose to prominence with the publication of Dei delitti e delle pene, (Leghorn, false imprint Haarlem, 1764). Hereafter, references are to On Crimes and Punishments, trans. D. Young, (Indianapolis, 1986). A re- arranged French translation was produced by Morellet in 1766, and an English edition published in 1767. UCL Bentham Project Journal of Bentham Studies 11 (2009) 2 account of the ‘disposition’ of an offender in the assigning of pain of punishment. This previously undiscussed element of his theory will be explored in some detail, and will be used to answer some significant criticisms of Bentham’s ‘economic’ approach to punishment.3 These four themes combine to form a consistent focus on Bentham’s primary concern, that a reduction in the levels of pain applied was not only required, but was essential, if improved efficiency in the deterrent force of punishment, and hence an advance in political economy, was to be achieved by judicial practice.4 1. Political Economy and the ‘Economic’ Conception of Punishment Consequentialist logic lies at the heart of Bentham’s economic analysis of crime and punishment. Such methodology presents any act, and any legislative act in particular, as being ‘right’ in so far as it provides, or promises to provide, a surfeit of happiness. Such ‘happiness’ can be understood either in conventional ‘economic’ terms as a monetary value, and this is appropriate for Bentham in many of his writings which considered specific financial issues. But, in relation to punishment, Bentham’s discussion interprets ‘economic’ much more widely in his discussions of ‘quantities’ of pain and pleasure. For example, Bentham used very broad terms, such as ‘mischief’ for negatives in the cost-benefit equation – which covered everything from financial loss to fear and danger offered by the threat of offending. These general expressions allowed him to extend and apply his calculative analysis across a strikingly broad range of economic, social and political issues. So, whilst monetary value was frequently the explicit concern of his thinking, it is constantly apparent that via his reductionist principles the ultimate measure underpinning his ‘economic’ perspective of social and political questions always remained pain and pleasure in the broadest sense. For Bentham, social, political and economic perspectives were inextricably linked, and the symbiotic inevitability of subject approaches is clearly identified in his conception of the close relationship between penal theory and political economy. Political economy was integrally connected to his complete code of laws5 and formed, for Bentham, ‘... an art exercisible by those who have government of the nation in their hands, ... the art of directing the national industry to the purposes to which it may be directed with the greatest 3 These criticisms can be found in É. Halévy, La formation du Radicalism Philosophique, 3 vols. (Paris 1901-4), trans. M. Morris as The Growth of Philosophic Radicalism (London, 1928; rept. 1972), pp. 69-72; and L. Radzinowicz, A History of English Criminal Law and its Administration from 1750, 5 vols. (London, 1948-86), pp. 381-5, and pp. 391-3, ‘Emphasis on Severity’. 4 Evidence from the Bentham archive at University College London will be of importance here. For Bentham’s interest in leniency see UC xxvii. 48; for a discussion on precise calculation as an aid to deterrence see UC xxvii. 24a; and on the need for judicial interpretation see UC cxl. 61. 5 See ‘A General View of a Complete Code of Laws’, in Bowring, Works, iii, pp. 155-210, Ch. xxvii, ‘Of Political Economy’, where he says: ‘The distinction marked by the word economy is applicable rather to a branch of the science of legislation, than to a division in a code of laws. It is much easier to say what branch of this science should be called political economy, than to say what laws are economical.’ UCL Bentham Project Journal of Bentham Studies 11 (2009) 3 advantage.’6 Such ‘greatest advantage’ can clearly be understood in standard economic terms with profits, outputs and standards of living forming the bases of assessment. Taking the broader conception prevalent in Bentham’s thought, however, ‘greatest advantage’ can also be considered in terms of happiness of the national community, which focuses on something other than conventional economic growth. Bentham is thinking here of the peace of mind brought to individuals by a sense of economic ‘security’. His penal policy is wholly commensurate with this since he supposed that, ‘the most powerful means of augmenting national wealth are those which maintain the security of properties… Such are the objects of … penal law.’7 Penal law is here linked explicitly with political economy; and whilst Bentham appreciated that political economy may be seen as ‘… a science distinct from every other’ he also went on to claim that, … I do not see that there can exist a code of laws concerning political economy, distinct and separate from all the other codes. The collection of laws upon this subject would only be a mass of imperfect shreds, drawn without distinction from the whole body of laws. Political economy, for example, has reference to the penal laws, which create the species of offences which have been called offences against population, and offences against the national wealth.8 This view links the pursuit of national ‘wealth’ with his discussion of offences in chapter sixteen of IPML, and a case is made for all issues of political economy to be regarded as dependent on the security provided by the penal system. Relying ultimately on the notion that security is the key to progress for national industry Bentham regarded the deterrent and reformative goal of punishment as essential to any co-ordination of economic growth undertaken by central authorities. Accordingly, the provision of a deterrent system of punishment was intrinsically linked, in Bentham’s view, to a calculative emphasis on the nature of both individual motivation and the central questions of political economy. Quantification was key to both his general and specific pictures of deterrence and the motivation to offend. With this economically inclined focus at the core of Bentham’s penal theory, the constant source of his interest in terms of achieving an effective penal theory centres on the role of ‘quantities’ of legal pain applied in response to the harm done and benefit gained by an offence. The question of proportionality in the amount of pain inflicted as 6 Stark, ‘Manual of Political Economy’, p. 223. 7 ‘A General View of a Complete Code of Laws’, in Bowring, Works, iii, pp. 203. He also regards the civil law as assisting in terms of aiding the establishment of ‘equality’. Both civil and penal aspects of his conception of political economy are important, though only the penal will be considered here. 8 Ibid. UCL Bentham Project Journal of Bentham Studies 11 (2009) 4 legal punishment is, therefore, fundamental to Bentham’s penal theory and essential to his consideration of political economy. Bentham’s analysis of proportionality is comprehensive and seeks to identify not only when it is right to punish offending behaviour, but also at what level any penal intervention should take. His detailed analysis of the notional link between the harms and benefits of crime, the harms and benefits of punishment, and an explanation of how this ‘economic analysis’ was to operate when applied to questions of social policy embodies the foundational critique that so inspired Becker. By examining Bentham’s discussion of proportionality as presented in IPML it is clear that Bentham was even more radical than Becker supposed. Bentham was perfectly able to understand how crime9 could be effectively subjected to economic analysis, and he developed a radical vision of the choices made by offenders, or ‘criminals’, as being valid from their own perspective, and necessarily accounted for, even justified, by their own unique set of circumstances and sensibilities. Bentham’s account identified, more clearly than ever before, that crime is beneficial as well as harmful, and that legal punishment is harmful as well as beneficial. The core conceptions of costs and benefits expressed within his economic conception of crime and punishment can be represented, in simplified form, as follows: 9 ‘Crime’ meaning all offending behaviour prescribed by law. UCL Bentham Project Journal of Bentham Studies 11 (2009) 5 Crime and Punishment Cost-Benefit Table Cost Benefit In respect of individuals: 1a ‘Danger’ and ‘alarm’ of punishment threatened for potential offenders Versus Potential illegal gains to be received by the offender 1b Restraint from illegal acts and absence of benefits of offending for non-offender Versus Guaranteed avoidance of legal punishments for non-offenders In respect of society as a whole: 2a General secondary pain of punishment – ‘alarm’ and ‘danger’ Versus General deterrence, reformation, producing prevention of future offending 2b General primary pain of punishment to offender, offender’s dependents, relatives and acquaintances Versus Particular deterrence, reformation and incapacitation from future offending From Bentham’s description of political economy and his economic approach to punishment it can be seen that benefit 2a, that of general deterrence, must take precedence from the policy perspective since this promises greatest advantage for society at large. Yet the impact of policy on the individual is essential to Bentham’s approach, and could never be over-ridden by his interest in, and requirement for, general deterrence. In this sense benefit 1b, that of protecting ‘non-offenders’ from the danger of suffering punishment, was a key requirement, for this benefit adds materially to the sense of security required for progress in political economy, and it must act alongside any relief of 1a, the threat of becoming a victim of crime. Benefit 1a, shows how far Bentham went with his reductive consequentialism, since here illegal gains are identified as benefits – they may act against good political economy, but they are still goods for the individuals receiving them and will continue to occur so long as the future benefits of offending ‘appear’ to outweigh the threat of future pain. Delicate balancing is therefore required in the assignment of pain of punishment, which is an evil, as a response to UCL Bentham Project Journal of Bentham Studies 11 (2009) 6 offending behaviour. Punishment is, then, a cost operating as a political tool, assisting in the process of selective restraint (it is simply not economically ‘worth’ trying to prevent all crime – this is clearly understood by Bentham’s ends of punishment10). The problem for Bentham is how to secure the promotion of benefits 2a, 1a and 2b without the harms imposed by the penal threat becoming excessive in terms of the implications for individuals? This concern for excess illustrates the emphasis placed on restraint in the application of legal pain, and provides a foundation for ‘lenience’ in punishment on an economic model. Lenience is a term frequently discussed by penal theorists of the late eighteenth century, but the term ‘leniency’ carried the wrong connotations for Bentham, since if the correct proportions are applied then the pain of punishment will be neither too lenient nor too severe, but ‘just’. Proportionality is the key notion. Proportionality had always been, of course, a core component of European penal theory and the idea that punishment embodied a ‘just’ desert for a crime committed had long been linked to the conception of a controlled and fair response to offending. Throughout the eighteenth and nineteenth centuries this notion of an optimal balance in the public response to crime took centre stage for the consequentialist theories of Beccaria and Bentham, as well as for the revival in retributivist theory displayed most prominently in the works of Immanuel Kant and Georg Hegel. But retributivist thinking re-emerged, in many ways, in response to the strength of the consequentialist critique and a primary question must be – from where did Bentham and Beccaria derive their consequentialist interest in proportionality? To answer this it is necessary to look in greater detail at the intellectual context out of which their ideas developed. 2. The Background to Bentham on Proportion Bentham’s development of the idea of proportion between crimes and punishments shows considerable reliance and interaction with the work of earlier thinkers. In some respects he can be described as imposing an order on concepts previously introduced by Montesquieu and Beccaria - and also, to a degree, by Hobbes. Bentham provided thirteen ‘rules or canons’ for penal proportion.11 He did so with the intention of ensuring, as John Rawls has said, that ‘the absolute level of penalties will be as low as possible’.12 The result of Bentham’s analysis was an intricate model calculating social pains against social pleasures, and aiming to provide graduations from mild to more severe punishment for the purpose of deterrence. In other words, his theory presents his penal sanction as an extension of, and in 10 See IPML, p. 158. 11 IPML (CW), pp. 166-71. 12 J. Rawls, ‘Two Concepts of Rules’, The Philosophical Review, 64 (1955), 13 n. UCL Bentham Project Journal of Bentham Studies 11 (2009) 7 complete accord with, a system of political economy envisaged as efficient in that it would only ever deliver the minimum pain of punishment necessary to achieve reductions in offending behaviour. a) Precursors to a Consequentialist Theory of Proportion Though Bentham judged his own work to be original in the provision of a coherent structure for the assessment of quantities of pain as punishment he freely admitted debts to a number of thinkers, with key figures as far as punishment is concerned being Montesquieu,13 Beccaria and William Eden.14 Clearly aware of the novelty of his own model, Bentham stated: my fear is, that in the ensuing model, I may be thought to have carried my endeavours at proportionality too far. Hitherto scarce any attention has been paid to it. Montesquieu seems to have been almost the first who has had the least idea of any such thing. In such a matter therefore, excess seemed more eligible than defect. The difficulty is to invent; that done, if any thing seems superfluous, it is easy to retrench.15 Of course, examples of the advocacy of proportion in punishment can be found prior to the eighteenth century. Even amongst classical thinkers, with Cicero for instance, the notion of punishment being measured according to the extent of the offence is considered.16 But of special interest to Bentham’s discussion is the emphasis on consequential detail and here some valuable connections can be made with the work of Thomas Hobbes. In Leviathan there can be found principles of punishment not dissimilar to those provided by Bentham’s later system. Hobbes suggested, for example, that ‘hurt inflicted, if less than the benefit of transgressing, is not punishment’. The clear sense being that the weight of punishment must overcome any ‘benefit’ provided to the offender by the offending act.17 Here was a concept closely corresponding with Bentham’s core expression of the need 13 Charles de Secondat, Baron de Montesquieu, Les lettres persanes, (Holland, 1721); and De l'esprit des lois, in Oeuvres complètes, (Paris, 1964). The translation used hereafter is A. Cohler, B. Miller, H. Stone, The Spirit of the Laws, (Cambridge, 1989). 14 William Eden, 1st Baron Auckland (1744-1814). He published Principles of Penal Law (London, 1771), held office as Under-Secretary of State for the Northern Department, 1772-8, and was MP for New Woodstock 1774-84. Eden was raised to the peerage in 1793. 15 IPML (CW), p. 172 n. For Bentham’s mention of Montesquieu and Beccaria as precursors to his own proportion theory, a paragraph from Bowring, i. 399, is generally offered. See Radzinowicz, English Criminal Law, pp. 384-5; H.L.A. Hart, ‘Bentham’s Principle of Utility and Theory of Penal Law’, an interpretative essay, IPML, (1996), p. cv. Since Bowring took his text from Smith’s recension of Dumont’s Théorie des peines, and it has yet to be established whether these are Bentham’s words, it seems better to rely on Bentham’s own reference in IPML. 16 ‘Noxiae poena par esto’ (let the punishment be equal with the offence), Cicero, De Legibus, BK. III, Ch. 20. 17 For this and following references to Hobbes