Discussing The Modern Criminal Justice Systems Criminology Essay

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Discuss Beccaria's contributions vis a vis modern criminal justice systems with particular emphasis on his views as regards: (a) prevention; (b) punishment; (c) prison; (d) torture; (e) death penalty; (f) the drafting of laws; (g) proofs and findings of cases and (h) defense preparation for court.

Since the early ages, there has been a need for a system of rules for society to abide with. These, being referred to as laws are set up in order to reassure peace and tranquility amongst civilians. According to Cesare Beccaria; an Italian philosopher and politician, the two contradicting forces being ''power and happiness'' and the reduction of ''weakness and misery'', can be reduced by the emergence of good laws. He describes laws as being an agreement between men in a democratic state. In conjunction, laws are to be drafted on the principle: ''the greatest happiness of the greatest number''. ('Of Crimes and Punishments' - Cesare Beccaria)

The Drafting of Laws

In Beccaria's essay, 'Of Crimes and Punishment', he emphasizes his great disagreement when it comes to the inhuman side of punishment and the ''irregularity of proceedings in criminal cases''. To enhance his idea, he cites Charles de Montesquieu referring to the principle that punishment shouldn't be tyrannical. The idea whether or not we need laws and punishments can be justified by looking at the Maltese Criminal Code. This reflects that only the laws can induce punishment. But in reality, who drafts the laws? Beccaria argues that only those representing the people, being the legislators, can make up laws. The laws being accustomed by the legislators have to bind ''the highest, and lowest of mankind''. It is only by doing so that equality is achieved. Legislation, therefore should be divided into two main systems: the prosecution and the defense. The initial being the party representing the civilians and the defense being the party representing the guilty. Moreover, a judge or a magistrate should be the source on which decisions are made. ('Of Crimes and Punishments' - Cesare Beccaria)

The majority of the people have an important role when it comes to the drafting of laws. Beccaria's major principle: ''the greatest happiness of the greatest number'' is proven right when compared to the Maltese Criminal Code. In Malta, abortion is considered illegal since ''any woman who shall procure her own miscarriage, or who shall have consented to the use of the means by which the miscarriage is procured'', is liable to imprisonment [Sec.241(2) ]. This example shows that an act is said to be a crime when the majority of the people sides against it. On the other hand, adultery is no longer a crime therefore it was omitted from the Criminal Code. ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)


In his essay, Beccaria doesn't give importance only to punishment and the formation of laws, but he also believes that ''it is better to prevent crimes than to punish them''. He continues by stating that even though by applying prevention in a society the level of misery decreases whereas the level of tranquility and happiness increases, one cannot be sure that this will bring about regularity amongst civilians. Beccaria lists a number of options of how a nation could prevent crimes amongst which he mentions that the laws should be drafted and written in a simple manner for everyone to understand. A part from that he also mentions the importance of the forces of the state being the police in order to unite and defend the laws. This is closely linked to the situation in Malta where the police force, as stated in the Criminal Code should ''preserve public order and peace'' and should ''prevent…detect and investigate offences'' [Sec.346 (1)]. ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)


'' It is impossible to prevent entirely all the disorders which the passions of mankind cause in society'', states Beccaria in his essay. This is to prove that even though he strongly believes in the art of prevention' he still doesn't omit the necessary need for punishment to those who commit an offence against society. In his section 'Of the Proportion between Crimes and Punishments', he gives his idea regarding the formation of a scale of crime and punishment. That is why earlier in this section he states that ''there ought to be a fixed proportion between crimes and punishments''. In this way, Beccaria distinguishes between the highest degree of crime and the lowest degree of crime. Punishment should be distributed according to the scale of crime committed; those who commit an offence which lead to ''the dissolution of society'' deserve a tougher punishment than those who commit an injustice to ''a private member'' of society. The Maltese Criminal Code is actually based on this idea. It is based upon a matching link between the scale of crimes and the scale of punishment which portray three main sections in which the Criminal Code is divided. The first being Crimes vs Society (revolts), the second being Crimes Vs nature (homicide) and the last Contraventions. Crimes are therefore to be measured by the harm done to society. Beccaria therefore implies that the most serious the crimes, the longer the sentence given. If we take a look at the Maltese Criminal Code, drug-trafficking is highly penalized whereas importing illegal tobacco and alcohol is less punished.

The more immediate the punishment is inflicted after a crime has been committed, the more effective and just the punishment would be. Beccaria believes in the fundamental factor as to spare the criminal ''the cruel and superfluous torment of uncertainty''. He also states that it is considered to be useful for a punishment to be addressed immediately since ''the smaller the interval of time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of crime and punishment''. Therefore, by delaying the time for the punishment to be given, one would be separating the irrespective ideas. Nevertheless, all these issues discussed by Beccaria himself and proven right in the Maltese Criminal Code show, the importance of equality in front of the law. The measurement of crimes and punishments are given irrespective of who the offender is or who the victim is. This is also proven in the Criminal Code since the term ''whoever'' implies equality. Moreover, punishment should also be certain. No ''insensible magistrate'' of judge should accuse an individual without clear proof, addresses Beccaria in his essay. In Malta, clemency is practiced since pardons and amnesties are given to those found no longer guilty. These are usually given by the President of the state. ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)


Imprisonment is considered to be the highest punishment given by the law. This type of punishment differs from all other punishments since trial is strongly needed. A magistrate cannot just proceed with imprisonment without having certain proofs and witnesses to enhance the offender's guilt. This means that this punishment ''should never be inflicted but when ordained by the law''. Beccaria continues by explaining that by using public reports, accomplices, circumstances of the crimes and other means and evidence, ''may be sufficient to justify the imprisonment of a citizen''. Even at his time, Beccaria saw the importance of respecting prisoners irrespective of their crime committed. He states that individuals who are labeled as criminals, once out of prison, find it difficult to integrate in their own society. This can be compared to the situation both in Malta and other countries, since ex-convicts are unlikely to find a suitable job after they have completed their prison sentence (U.S Department of Justice, Sentencing and Corrections gazette. November 2000). One cannot say that the situation in Malta is not being improved since the Maltese Prison can facilitate offenders to integrate in society in a smoother way by providing them with simple community work or education.


Beccaria is strongly against the use of torture to impose a person to speak out his confessions whether guilty or not. By using torture, one may risk punishing the innocent and therefore these weak individuals may succumb. Whereas on the other hand those who are truly guilty tend to resist since they are found to be stronger. Beccaria insists that if a person is guilty ''he should only suffer the punishment ordained by the laws'' therefore torture is not necessary. On the other hand if a person is found to be not guilty, the innocent would be suffering from torture ''for, in the eye of the law, every man is innocent whose crime has not been proved''. In Malta, torture is not used in fact in the Criminal Code it is stated that, ''Any public officer or servant or any other person acting in an official capacity who intentionally inflicts on a person severe pain or suffering, whether physical or mental (a) for the purpose of obtaining from him or a third person information or a confession…'' can be imprisoned from five to nine years [ Sec. 139A (a) ] ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)

Death Penalty

A part from being against torture, Beccaria is also against the death penalty. He questions whether man have the right to kill their fellow brothers. He believes that in a well governed state, this sort of penalty doesn't cohere within society. It is even more ironic that a state is against the offence of murder but then it is in favour for the state to murder whoever is guilty of a serious crime 'deserving' the death penalty. However, Beccaria believes that death can be necessary only in one case, "When, though deprived of his liberty, he has such power and connections as may endanger the security of the nation''. In 1971, the punishment of the death penalty has been removed from the Criminal Code but it existed till then with a moratorium since 1943. ('Of Crimes and Punishments' - Cesare Beccaria)

Proofs and Findings of Cases

According to Beccaria, the proofs of a crime are divided into two main groups - perfect and imperfect. The perfect class " exclude the possibility of innocence whereas the "imperfect…do not exclude this possibility". In Malta this is shown in the arrest of a person and to call in court. Proof is needed in order for a person to be arrested; strong evidence is needed to arraign in court. Proofs and findings should be available to the accused and interested parties so that the proper defense can be prepared by the defendants themselves. This is also proven in the Maltese Criminal Code where the acts and documents of the courts are given " to the parties concerned or by or to any advocate or legal procurator authorized by such parties" . Witnesses are also a very vital part in court. " Every man of common sense…may be a witness" states Beccaria. This is also referred to in the Criminal Code where " Every person of sound mind is admissible as witness, unless there are objections to his competency" [Sec 629 (1)]. ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)

Defense Preparation for Court

Even though the Italian philosopher agrees that those who are found guilty of committing a crime should be given enough time to prepare their defense, those who are accused of committing more serious crimes should be given less preparation time. This is opposed to what the Maltese Criminal Code states, since longer preparation time is given to those who commit serious crimes [Sec 687 and 688]. This difference in agreement between Cesare Beccaria and the Maltese Criminal Code is also seen when it comes to accomplices. His idea is that accomplices should be given a lesser punishment than those who commit the actual crime. In contrast, the Criminal Code suggests that those who formed part of the crime committed should receive the same punishment as those who actually committed the crime. ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)

To conclude, Beccaria yet again highlights the importance " that the severity of punishments ought to be in proportion to the state of the nation". He gives no importance to barbarity since it can diminish one's integrity and dignity. Even though Beccaria's essay was first published in 1764, most of the issues discussed are still relevant and in use nowadays as one can observe by looking at the Maltese Criminal Code. ('Of Crimes and Punishments' - Cesare Beccaria; Maltese Criminal Code)