Beccaria’s and Bentham’s Analysis of Prisoners’ Communication

face of a prisoner

In eighteenth-century Europe, crime and punishment was a propitious field for reasoning. Population growth, economic growth, and urbanization were increasing public concern about crime. Consequentialist reasoning, in contrast to custom, was become more common in public deliberation and increasing in public value. Eighteenth-century consequentialist reasoning about crime and punishment established the foundations for economic analysis.^ Nonetheless, the shift early in the nineteenth century to suppressing strictly prisoners’ communication occurred without any substantial influence from economic analysis. Subsequent liberalization of prisoners’ communication also occurred without any substantial influence from economic analysis. Economic analysis thus far has made no significant contribution to rational regulation of prisoners’ communication.

About the year 1764, Cesare Beccaria spurred reasoning about crime and punishment with his pioneering book, On Crimes and Punishments.^ Beccaria argued that the state had no right to punish criminals by death and that the death penalty was unnecessary and ineffective. He argue that deterrence of crime, not retribution for crime, was the only legitimate justification for punishment. Moreover, he argued that legitimate punishment cannot exceed that necessary for deterring the associated crime. He reasoned that rational punishment should be determinate and certain under law, proportionate, public, and prompt.

Beccaria did not believe that his good reasoning would win favor in public deliberation, but he hoped to gain strong support from enlightened intellectuals. Beccaria wrote:

I shall be happy if, with him {“the immortal Montesquieu”}, I can obtain the secret thanks of the obscure and peaceful disciples of reason and philosophy, and excite that tender emotion in which sensible minds sympathise with him who pleads the cause of humanity. …

I am sensible that the voice of one philosopher is too weak to be heard amidst the clamours of a multitude, blindly influenced by custom; but there is a small number of sages scattered on the face of the earth, who will echo to me from the bottom of their hearts; and if these truths should happily force their way to the thrones of princes be it known to them, that they come attended with the secret wishes of all mankind; and tell the sovereign who deigns them a gracious reception, that his fame shall outshine the glory of conquerors, and that equitable posterity will exalt his peaceful trophies above those of a Titus, an Antonius, or a Trajan.^

Although Beccaria imagined himself as writing for “a small number of sages,” he also imagined himself as expressing “the secret wishes of all mankind.” This tiered, compartmentalized communicative structure has endured at the core of subsequent social science.

Beccaria described friendships and family as obstacles to improving society. He considered friendships and family to impede greater exercise of reason and public spirit:

in the most despotic government, friendships are more durable and domestic virtues (which are always of the lowest class) are the most common, or the only virtues, existing. …

The private spirit of family is a spirit of minuteness, and confined to little concerns. Public spirit, on the contrary, is influenced by general principles, and from fact deduces general rules of utility to the greatest number.^

According to Beccaria, only a false idea of utility “separates the public good from that of individuals.”^ Beccaria’s framework of reasoning thus obscured common relations of family and friendship among persons.

Jeremy Bentham, a mid-eighteenth-century English independent scholar and philosopher, reasoned systematically and extensively about punishment. He did not apply reason to regulating prisoners’ communication with family and friends. Bentham argued that sympathetic connections such as family relationships and friendships magnify pleasure and pain:

The tendency of them is to increase a man’s general sensibility; to increase, on the one hand, the pleasure produced by all pleasurable causes; on the other the pain produced by all afflictive ones…. This is one reason why legislators in general like better to have married people to deal with than single; and people that have children than such as are childless. It is manifest that the stronger and more numerous a man’s connexions in the way of sympathy are, the stronger is the hold which the law has upon him. A wife and children are so many pledges a man gives to the world for his good behaviour.^

Bentham didn’t reason from these sensational claims to rational regulation of prisoners’ communication with family and friends. About 1778, in drafting a work on punishment , Bentham specified eight “Necessary inconveniences, which arise from the condition of a prisoner, and which form the essence of imprisonment.” Among these necessary inconveniences of imprisonment Bentham appended a clause concerning prisoners’ communication with family and friends:

5. Abridgement of the liberty of going out to enjoy agreeable society, as of relations, friends, or acquaintance, although they should be permitted to come to him.^

Bentham provided no rationale for his claim that family and friends should be permitted to visit a prisoner. Following the list of eight necessary inconveniences was a list of seven “accessory evils, commonly attendant on the condition of a prisoner.” Among the accessory evils Bentham listed:

4. Total exclusion from society. This evil is carried to its height when a prisoner is not permitted to see his friends, his parents, his wife, or his children.

5. Forced obligation of mixing with a promiscuous assemblage of his fellow prisoners.

6. Privation of the implements of writing, for the purposes of correspondence. A useless severity, since everything which is written by a prisoner may be properly submitted to inspection. If ever this privation is justifiable, it is in the cases of treason and other party crimes.^

In Bentham’s reasoning, “useless severity” is unquestionably irrational , but evil, even the height of evil, is not necessarily irrational. Bentham followed his taxonomy of evils with his characteristic style of thinking:

These different evils, which are so many positive evils in addition to the necessary evils of simple imprisonment, may be useful in penal and penitential imprisonment. We shall hereafter shew in what manner they ought to be used.

The next sentence reverses direction on one item:

But with respect to the fifth evil, the forced obligation of mixing with a promiscuous assemblage of prisoners, it is always an evil, and an evil which cannot be obviated without a change in the system and construction of prisons.^

That sentence apparently anticipated Bentham’s panopticon writings^, his efforts to secure the commission to construct the Millbank Prison, and the transnational consensus on suppressing prisoners’ communication.

Bentham’s immediately subsequent table of “evils purely abusive” doesn’t include “the forced obligation of mixing with a promiscuous assemblage of prisoners.” That table lists narrower aspects of communication among prisoners: the abusive evil “Painful sensations arising from indelicate practices,” with the corresponding remedy, “Partitions to keep the prisoners separate during the hour of rest, at least those of the one sex from those of the other”; and the abusive evil “Tumultuous noises—indecent practices—indelicate conversations,” with the corresponding remedy, “Keepers to be directed to punish those guilty of such practices. The punishment to be made known to the prisoners by being fixed up in the prison.” The table of abusive evils is thus inconsistent with his preceding remark about the fifth evil (mixing of prisoners). Bentham earlier described that evil as an accessory evil possibly useful for punishment. Perhaps Richard Smith, who in 1830 edited and published in English Bentham’s writings on punishment, inserted the sentence about the fifth evil. In any case, nothing in Bentham’s reasoning, or in his method of reasoning, provides reasoned support for either position.

Poor reasoning recurs in another reference that Bentham makes to prisoners’ written communication. Bentham states:

Among the inconveniences which may be attached to imprisonment, there is one which is particularly inequable. Take away paper and ink from an author by profession, and you take away his means of amusement and support. You would punish other individuals, more or less according as a written correspondence happened to be more or less necessary for their business or pleasure. A privation so heavy for those whom it affects, and at the same time so trifling for the greater number of individuals, ought not to be admitted in quality of a punishment. Why should an individual who has received instruction in writing, be punished more than another. This circumstance ought rather to be a reason for indulgence; his sensibility has been augmented by education; and the instructed and cultivated man will suffer more from imprisonment than the ignorant and clownish.^

This argument seems to rationalize Bentham’s particular interests using Bentham’s characteristic reasoning. One might also reason, in contrast, that authors should not be able to practice their profession in prison because other tradesmen lack similar opportunities.

Beccaria and Bentham, pioneering proto-economists who wrote extensively on crime and punishment, contributed little to public deliberation on regulating prisoners’ communication. Beccaria, despite addressing specific punishments in considerable detail, had nothing to say about prisoners’ communication. Bentham wrote about a thousand pages of manuscript concerning crime and punishment.^ Only a few lines concern prisoners’ communication. Bentham’s reasoning on this subject is incoherent. His reasoning follows intellectual fashion and narrow interests. Beccaria’s and Bentham’s proto-economic writings show the foundations of economic analysis providing weak support for analyzing communication.

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