Torture, Death Penalty, Imprisonment: Beccaria and His Legacies

However, in the early 21^st century, this legacy is increasingly in doubt. Beccaria’s legal Enlightenment resonates powerfully in the constitutions of many democracies around the globe, and yet its very same principles are often disregarded in practice. The persistence of death penalty, democracies’ resort to torture, and the degrading conditions of most prison systems across the world are testament to the urgency to go back to Beccaria’s On Crimes and Punishments to revisit its ideas and implications. “Much quoted and little read”[1], in the words of its editor for the “Cambridge Texts in the History of Political Thought” series, it is a book that remains as relevant today as it was in 1764. Revisiting its arguments, legacy, and contribution is vital to make its defense of human dignity more than a broken promise of modernity.

In the Western world, where the abolition of capital punishment has become a legal axiom, dozens of American states continue to resort to death penalty, under conditions that disfigure the basic commitment to human value and fall short of the purported goal of effective crime control. The prolonged, sometimes endless delays; the uncertainty of when the execution will be carried out; the racial discrimination; overall, the unevenness of its application: all these factors make the experience of death row prisoners even more barbaric.

Torture – a practice that modernity had supposedly eradicated once and for all from the landscape of judicial practices – has found new apologists over the past twenty years. The challenge of balancing security and liberty – two basic values at the core of modern-day democracies – has made “clean tortures” great again, resuscitating them as an interrogation methods and truth-extraction techniques within the war on terror. More recently, Donald Trump’s statements as a presidential candidate in 2016 that “torture works” and that “even if waterboarding doesn’t work, they deserve it,” has put the topic back on the map of public debate. Two centuries and a half after Beccaria’s refutation of torture through his famous dilemma (i.e., either proof of guilty already exists, which makes torture unnecessary, or it does not exist, which makes torture unjustified), torture, and its relationship with democracy, remains one of the most controversial topics.

Finally, mass incarceration has increasingly proved a form of punishment that betrays the core mission Beccaria had given it: to rehabilitate the citizen who offends. Understaffing, overcrowding, repeated sexual abuses, physical and psychological violence, mistreatment based on race and/or gender punctuate the everyday life of convicted men and women, making their return to prison or jail even more likely. As recently revealed by the Justice Department’s Civil Rights Division in a report on Alabama’s prison system, the experiences of many inmates are brutal, sometimes even horrific, with individuals lying dead for days, others being tied up and tortured, and rapes consistently being dismissed as “consensual homosexual activity.” Beside cruel treatment and revolting conditions, there is a more fundamental point. As legal scholars and commentators have increasingly emphasized, a just system should not simply protect the rights of the innocent; it should also respect the humanity of the guilty.  

All in all, the phenomenology of punishment in our punitive democracies reveals how immensely relevant and dramatically important the ideas of Beccaria are today.

[1] Despite being often referenced as a foundational text in the history of modern criminal law, On Crimes and Punishments has traditionally received sporadic attention by Anglo-American scholars. Most of the times, they have simply paid lip service to Beccaria’s name, without thoroughly engaging with his work or thought. Modern English translation of this seminal text first appeared in the 1960s (by Henry Paolucci in 1963 and Jane Grigson in 1964) but it was only in 1995 that Richard Bellamy published it in the prestigious Cambridge “Texts in the History of Political Thought” series. Apart from Hart’s essay on “Bentham and Beccaria” (1964), three intellectual biographies of Beccaria were published in English throughout the 20^th century: Coleman Phillipson’s Three Criminal Law Reformers: Beccaria, Bentham, Romilly (1923); Marcello Maestro’s Voltaire and Beccaria as Reformers of Criminal Law (1942); and Maestro’s Cesare Beccaria and the Origins of Penal Reform (1973). Over the past few decades, legal historians have also explored the influence of Beccaria on the American Founders: two important examples are Adolph Caso’s America’s Italian Founding Fathers (1975) and, more recently, John Bessler’s The Birth of American Law. An Italian Philosopher and the American Revolution (2014). In his essay “Beccaria’s ‘On Crimes and Punishments’: A Mirror on the History of the Foundations of Modern Criminal Law (2013), Bernard Harcourt has outlined the history of the praises, critiques, and influences generated by the treatise between the XVIII and the XX century. In his own words: “A source of inspiration for Bentham and Blackstone, an object of admiration for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics, […] On Crimes and Punishments may be used as a mirror on the key projects over the past two centuries and a half in the domain of penal law and punishment theory”.

The ambition of our conference – Torture, Death Penalty, Imprisonment: Beccaria and His Legacies – is to promote a conversation among leading scholars, with different but complementary expertise, on the place of Beccaria in the development of modern criminal law and how his ideas have (or have not) travelled into our present.

It will be the first major conference on Beccaria’s On Crimes and Punishments and its contributions to modern and contemporary debates that has ever been organized in Anglo-American academia. It will bring together political and legal historians, historians of political thought and ideas, political and legal theorists, philosophers, legal scholars and practitioners to dissect Beccaria’s arguments and their echo (or lack thereof) in the practice of contemporary criminal law through the prism of three main forms of punishment: torture; death penalty; incarceration.

By doing so, the conference will pursue a threefold goal.

On the one hand, it will contextualize Beccaria’s treatise, to better capture its disruptive originality vis-à-vis previous theories and practices of punishment and re-examine some of the debates it fueled over the following two centuries.

On the other, it will explore the history, purposes, modalities, and conundrums of the three forms of punishment in the 20^th and early 21^st centuries. Understanding their place within the broader scaffolding of constitutional democracies and dissecting the arguments of both their partisans and their opponents will allow to envision reforms, discuss alternatives, and understand whether, and how, we can live up to the legal humanism and enlightenment championed by Beccaria.

Finally, it will draw attention to an array of contemporary challenges that the author of On Crimes and Punishments could not possibly anticipate and that have emerged over the past few decades and years. Special emphasis will be given to penal populism; the escalation of violence and racism in increasingly polarized democracies; state policies to address and prevent crime and control borders in diverse societies; the global phenomenon of un-documented migrants, asylum-seekers, and refugees, and the regime of impunity in the case of migrants’ deaths; the use of digital technologies in law enforcement and criminal justice, and the way they erode citizens’ autonomy; the implications of all the above for debates on race, gender, personhood, human rights, and democratic agency.

The conference will last two days and will be divided in three major sections: “Punishment before Beccaria”; “The Penal Humanism of Beccaria”; and “The Legacies of Beccaria. Each section will in turn consist of sub-sections: “Judging and Punishing in the Ancient and Early Modern World” (I) in the first section; “Beccaria’s On Crimes and Punishments: Text and Context” (II) and “Beccaria’s On Crimes and Punishments: Readers, Disciples, Critics” (III) in the second section; “Torture” (IV), “Death Penalty” (V) and “Incarceration” (VI) in the third section.

The conference will begin with a keynote by Prof. Judith Resnik (Yale Law School), on The Impermissible in Punishment (based on her ongoing book manuscript) and will end with a conversation between Prof. Bernard E. Harcourt (Columbia/EHESS) and Prof. Didier Fassin (IAS at Princeton/EHESS).

Given the importance and relevance of the topic, the contribution of some of the most distinguished scholars in contemporary academia, the interdisciplinary nature of the conference, and the absence of a project of this sort in the existing literature, the two organizers – Prof. Bernard E. Harcourt (Columbia University Law School/Political Science) and Dr. David Ragazzoni (Columbia University, Political Science) – hope to collect the revised papers in an edited volume for a leading university press.