JEREMY BENTHAM
Kim Swanson
Graduate Student Criminology
Florida State University
INTRODUCTION:
Jeremy Bentham was a theorist from the Classical
School of thought, which developed in the 18th century. Several aspects of Bentham's life will be
examined. Life in England in the 18th century greatly influenced his
thinking. Next, peers of Bentham criticized and praised his writings and
influence. Finally current theories and thought will be contrasted to see how
Bentham's ideas of "utility" and punishment are used today. He also
left behind a more tangible memory. Determined to be perpetually present at the
University College London he willed that his body be preserved in a cabinet,
dressed in his own clothes and topped with a wax head of his likeness. Whether this was because he had a bizarre
sense of humor or a supreme case of self-importance no one seems to know. What
is known is Jeremy Bentham was both respected and scorned in his time yet his
ideas can be found throughout criminal justice thought and practice still
today.
ENGLAND
IN THE 18TH CENTURY
The 18th century was a time of advances
and changes. Machine filled textile mills replaced hand spinning and weaving
done in the home. The people were not much different than ours in this century.
Babies were born and elders died. People wondered how to feed the poor, how
much government should interfere in its citizens lives, how crime can be
controlled, what to do about widespread addiction and how people of different
religious persuasions could get along.
Jeremy Bentham was born in 1748. The
women in his family were pious and superstitious and he grew up in an
atmosphere of ghost stories and was tormented by "diabolical
visions." (Halevy, 1965:5) This upbringing was typical of the times.
On October 2, 1818, William Plumer,
a member of the New Hampshire Legislature, wrote to Jeremy Bentham, a founding
influencing member of a school of criminological thought known as the Classical
School. Crime and deviance had been previously explained by reference to
spiritual shortcomings and demonic influences. The Classical School developed
the thought that crime and deviance were products of the exercise of free will.
Mr. Plumer commenting in his letter to Mr. Bentham about the Complete Code of
Laws he had submitted to the Legislature, stated his (Bentham) proposal was met
with disapproval by the older members because it "rendered the law more
clear and explicit, and thus diminishing the profits which are at present
derived from its uncertainty and obscurity." (Conway, 1989:274) Mr. Plumer
also mentioned the older members did not want to give up their role as teachers
and become learners of a new system of laws.
What kind of society did Jeremy
Bentham live in that would cause lawmakers to be reluctant to accept a new
system of laws because it would diminish their profits? Jeremy Bentham lived in
England during the last half of the 18th century and the first part
of the 19th. Society as he knew it greatly influenced his thinking
and theories regarding crime, deviance and punishment. His ideas were
influencing other judicial systems including the United States as Mr. Plumer
mentions in his October 2 letter. "The influence of your writings has
already been extensively felt in the United States. Your work on Usury has
passed through several editions in this country and its principles begin to be
generally adopted by men of enlarged views and liberal minds." (Conway,
1989:276).
The classical theorists were responding to the state
of criminal justice that was to be found in Europe at this time. Europe was leaving behind its long history
of feudalism and absolute monarchy and turning toward the development of modern
nation states that ruled based on rational decision-making powers. However,
criminal justice was an area that needed updating. Throughout Europe (except in
England) the use of torture to secure confessions and force self-incriminating
testimony had been widespread. 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. This made
it legally impossible for the convict's parents to pass on their wealth to
their own grandchildren. Many accused criminals allowed themselves to be
crushed to death rather than risk a trial and leave their families destitute.
This is the England where Jeremy Bentham and others developed their ideas
concerning criminal behavior and how best to control it.
Politics
There were two political parties in
England, the Whigs and the Tories. Bentham was brought up a Torie yet his
temperament was, in all respects, a Radical. Parliament had two divisions, the
House of Commons and the House of Lords. The 558 members of the Commons were
wealthy landowners who were elected to their posts. The House of Lords were
English and Welsh men, elected Scottish men and Anglican bishops. Parliament
was the most powerful legislature in Europe but by standards of modern times it
was unprofessional in its duties and did very little. (0lsen, 1999:1,5)
Parliament was not only limited but also disorganized. The population
distribution shifted dramatically over the course of the century, but no one
made an effort to redistribute seats accordingly. Large populated cities had
been represented by a small number of members when they were small burgs but
the number was not increased when they became larger. (Olsen, 1999:5)
English citizens in the 18th
century were very interested and well informed about politics. The authorities
found this unsettling. Censorship was imposed on the theater and offensively
satirical plays were banned. The people countered this by rioting. Legislation
was enacted in 1790. that suspended habeas corpus, limited public gatherings
and rewarded informers. (p.9)
Bentham's definition of the state or
political state is one that most later utilitarians have adopted. Bentham said
"When a number of persons are supposed to be in the habit of paying
obedience to a person, or an assemblage of person, of a known and certain
description, such persons altogether are said to be in a state of political
society." (Plamenatz, 1958:65)
Social
Life
For 18th century men and
women, class determined almost everything - diet, dress, times of waking and
sleeping, occupation, education, cause of death and means of burial. The upper
class, which was usually born into their status, controlled 20% of England's
land values. (Olsen, 1999:14) The middle class was made up of the workers
(merchants, farmers, bankers, and engineers). These workers usually had education
or a special business or craft skill. Even men with money fell into the middle
class if they depended upon trade rather than land for their wealth. The lowest
class was field labors, prostitutes, servants, paupers, common soldiers and
sailors. The poor made up over half of the population. More than 20% of all
families required charitable assistance. Workhouses were used to shelter the
poor and give them employment to offset the cost of the maintenance. Jeremy
Bentham described the purpose of a work mill as "to grind rogues honest
and idle men industrious." (Pfohl, 1994:81)
The upper class ridiculed the lower
class for their lack of social graces. The reason for the hostility was simple.
The social grace is what distinguished a man as upper class and not middle or
lower class. For much of the 18th century there was a fourth class -
black slaves. Toward the end of the century, activists were campaigning to end
slavery. Indeed, the Utilitarians, among them Bentham, hated slavery. "The
general tendency of the economists were against government interference. "
(Stephen, 1950:177).
The loose morality of the time and
the weakening of religious faith, at any rate among the enlightened classes,
were universally admitted and deplored. (Halevy, 1965) This brought about a new
era.
Law and
Order
English law showed more favor to the
upper class landowner than to the vagrant. Lawsuits required money and the poor
couldn't afford it. There was no public prosecutors office. According to the
English law of that day, men were not created equal. Bentham held that laws
should be socially useful and not merely reflect the status quo. Laws had no sense of order or reason behind
them. Bentham believed that pain and pleasure were the instruments that
legislators had to work with in controlling antisocial and criminal behavior.
This approach to law and order has been termed as utilitarianism because it
emphasized the worth an action holds for the individual participating in it.
Bentham's ideas were not new but his application of them to criminal behavior
was. He, along with Mill, another English Utilitarian, believed that " interference
is bad when the harm caused by the coercion is not counterbalanced by the
good." (Stephen, 1950:268) According to the principle of utility,
"legal penalties are evils inflicted under legal forms on individuals
proved guilty of some harmful act which is forbidden by law, and inflicted with
a view to preventing the occurrence of similar acts." (Halevy, 1965:55)
Bentham believed that the law
shouldn't be used to enforce morality on society in general but to address
cases where "injury is inflicted upon an assignable person and by conduct
defined by definite outward manifestations." (Stephen, 1950:269). He
explicitly proposes in his work "Introduction to the Principles of Morals
and Legislation" to "withdraw morality from the control of feeling and
to subject it to the rule of reason". (Halevy, 1965:12)
In some respects, the 18th century English
justice system was highly advanced. It
afforded the accused strong protection, including strict evidentiary
rules, jury trials and the revered principle of habeas corpus, which banned
imprisonment without trial. In other respects, the system was haphazard and
chaotic. Patchwork jurisdictions, judicial improvisation, uneven enforcement,
widespread corruption and an almost complete lack of police protection plagued
participants and observers alike. (Olsen, 1999:52)
Criminals knew they faced a
hangman's noose if convicted but also knew the chances of being detected,
arrested and vigorously prosecuted were slim. The judicial system was
disorganized. Magistrates who presided might not know anything about the law
and would sell favorable rulings for cash or sex. Justice was handed out
wherever it suited them. (Olsen, 1999:206) The parish magistrate did not
receive a salary and usually was chosen because he owned a lot of land. In
addition to taking bribes, it was perfectly legal for the magistrate to set a
prisoner free if he paid a certain fee. Some magistrates arrested innocent
individuals in order to collect the fee for setting them free. (p. 237)
Constables, the English policemen,
were expected to work their trade and do police work in their spare time. They
were helpless in the face of the increased number of people, mobility and
anonymity of urban population. It was simply too easy for criminals to vanish.
(p.211) Informers and bounty hunters earned money for every criminal convicted
with their assistance. The system was expensive for the government and futile
at catching professional criminals. (p.214) The idea of a professional police
force was vigorously resisted even by law-abiding citizens who saw it as a
first step toward tyranny. Despite inadequate or nonexistent police protection
and state prosecution, criminals were arrested in substantial numbers for both
minor and major offenses. Even though many
of the crimes were punishable with the death sentence, the number of executions
was not as large as one might think. The main reason for this was the lack of
expectation by the law administrator to catch and punish criminals. The English
took pride in their non-enforcement of many laws citing it as proof of their
free society. Many felt compassion for those sentenced to hang and either
refused to prosecute or acquitted to avoid seeing the death penalty carried
out. (p. 213)
Capital punishment was scrutinized
in the 18th century. Almost everyone agreed that some executions
would act as a deterrent; nevertheless crime seemed out of control. The
question then was how and when to execute for maximum effect. Some defended
public executions for their influence on citizens who would then have a
contempt of death. Others thought it created too much pity for the condemned.
Others thought death was the easy way out and suggested hard labor as a more
effective deterrent. Bentham advocated neither an extreme or a cruel punishment
- only punishment sufficiently distasteful to the offender that the discomfort
experienced would outweigh the pleasure to be deprived from criminal activity.
(Olsen, 1999:213)
Jails were only used as holding
places before trials or places of confinement for short sentences. Only toward
the end of the century did reformers turn to long jail terms in
state-of-the-art prisons with solitary confinement cells. The prisons were run
loosely. Men and women mingled freely during the day. Lice, disease and dirt
were plentiful. Alcohol was available for a price. Wardens and jailers squeezed
the inmates for the highest prices. They charged for private rooms, alcohol,
bedding, removal of chains, freedom to walk outside the prison and food. Before
a prisoner could leave jail, he had to pay all his fees to the jailers. (Olsen,
1999:214
Before prisons, criminals whose
crimes were too serious to spend a couple of months in jail but not serious
enough for execution were transported to American colonies to serve their
sentences. Sometimes criminals returned illegally and committed more crimes
even though returning was a hanging offense. In the 1770's the American
colonists rebelled effectively ending transportation of prisoners to America.
Instead of abolishing transportation, criminals were sent to Australia. (Olsen,
1999:215)
Judges were still hesitant to hand
out jail sentences even for misdemeanor
crimes. Instead they embraced Bentham's view of the use of harsh public
sentences as a deterrent. Wooden frames that locked the criminals head and
hands were frequently used for this purpose. Branding and public flogging were
also common punishments. When criminals were sentenced to hanging, the
condemned were loaded onto open carts along with their coffins. Along the way,
stops were made at taverns to drink, condemned and justices alike. At the
gallows, last speeches were made, prayers said and the hanging commenced. The
bodies were frequently disemboweled, coated with tar and hung in chains near
the scene of their crimes as a public display hopefully to deter further
criminality. (Olsen, 1999:216)
This was the 19th and 19th
century England that Jeremy Bentham and other Classical Theorists influenced
with their ideas of order, punishment and deviance.
BENTHAM'S
VIEWS AND THEORIES
Jeremy Bentham was the founder of an influential group of
liberal philosophers called "The Philosophical Radicals" or otherwise
known as the "Benthamites".
Because he was born into a family of Tories, he shared their
conservative political views for the first part of his life. This changed after
reading the words of Joseph Priestley. "One statement in particular from The
First Principles of Government and the Nature of Political, Civil and Religious
Liberty (1768) had a major impact on Bentham: The good and happiness of the
members, that is the majority of the members of the state, is the great
standard by which every thing relating to that state must finally be
determined." (Spartacus Educational Online source, 1768:2). David Hume, a
philosopher also had an important influence on Bentham. His philosophy of
"the greatest happiness of the greatest number" and that "pain
and pleasures are the sovereign masters governing man's conduct" can be
traced back to David Hume. Bentham studied philosopher's such as Locke, Hume,
Montesquieu, Helvetius, Beccaria and Barrington. (Fox, 1999) When Bentham
criticized the leading legal theorist in 18th century England, he
began to be noticed and listened to.
He at first believed that statesmen who were enlightened and
public-minded would overcome their conservative blunderings and begin to
institute programs for the benefit of society. When this did not happen,
Bentham began to lean toward democratic reform. In his works A Fragment on Government (1776) and Introduction
to the Principles and Morals of Legislations (1789), Bentham began to
express the doctrines of Utilitarianism which "approves of an action in so
far as an action has an overall tendency to promote the greatest amount of
happiness. Happiness is identified with pleasure and the absence of pain"
(Mautner, 2000:1) To help explain his theories, Bentham drew up a felicific
calculus which takes into account six criteria for measuring pain and pleasure.
These were: intensity (how much pleasure is experienced), duration (how long it
is lasting), certainty or uncertainty (the chance of feeling pleasure as a
result of an action), propinquity (how close pleasure is to those affected),
fecundity (how productive the pleasure is toward individual ends of those
feeling it), and purity (how morally suitable the pleasure is.) This pleasure
and pain principle led to the establishment of the theory of Unitarianism which
is "the rejection of the doctrine of original sin and eternal punishment
replacing it with a belief in individual conscience and reason as a guide to
right action." (Spartacus Education, 2000:2)
Legislature
and Utility
Jeremy Bentham attacked specific abuses in the English
system of penal legislation and as a consequence of this developed a complete
science of legislation. Bentham's most detailed account of his ideas of
political democracy appeared in his book Constitutional Code (1830).
Bentham was critical of the nature and scope of government in general. He was a strong proponent of the secret
ballot, regular elections and vote recall. He also attacked the Established
Church, then the Catechism, the New Testament and finally Religion itself. According
to Bentham there should be no king, no House of Lords and no established
church. Bentham's work A Fragment of Government was a critical
examination of the writing of Blackstone. "Bentham held that laws should
be socially useful and not merely reflect the status quo" (History Guide,
2000:1) He states that "the mischievousness of a bad law would be detected
by the difficulty of finding a place for it in such a natural arrangement
(speaking about his work of laws) while on the other hand, a technical arrangement
(Blackstone's Classifications) is a sink that with equal facility will swallow
any garbage that is thrown into it." (Bentham, 1776:119)
Social relationships had no part in describing the nature of
a human person according to Bentham. He felt that the idea of
"relation" is a "fictitious entity" which is only necessary
for "convenience of discourse". Later he says "the community is
a fictitious body" which is defined as the "sum of the interests of the
several members who compose it"
(Sweet, 2000:3) He further suggests that an individual's relation to
those around him were not essential to describing the nature of a human being.
Bentham's moral philosophy embraces the principle of
utility. He writes "By the principle of utility is meant the principle
which approves or disapproves of every action whatsoever, according to the
tendency which it appears to have to augment or diminish the happiness of the
party whose interest is in question: or, what is the same thing in other words,
to promote or to oppose that happiness" (Sweet, 2000:4) Pleasure is always
the ultimate goal. Any action should be evaluated and undertaken depending on
how much pleasure it does or does not bring.
Prison
Reform
Prison reform was also a
favorite subject of Bentham's. In his work The Constitutional Code
Bentham addressed the need for punishment.
"Whatsoever evil it is possible for man to do for the advancement
of his own private and personal interest at the expense of the public interest,
that evil, sooner or later, he will do, unless by some means or other,
intentional or otherwise, prevented from doing it."(Spartacus Education
2000: 3). Bentham was not in favor of the death penalty but did like the idea
of incarceration and public humiliation. In 1785, Bentham joined his brother
Samuel in Russia and devised a plan for his Panopticon, a model prison where
all prisoners would be observable by unseen guards at all times.
The
Panopticon was an architectural figure that
incorporates a tower central to an annular building that is
divided into cells, each cell extending the entire thickness of the building to
allow inner and outer windows. The occupants of the cells . . . are thus
backlit, isolated from one another by walls, and subject to scrutiny both
collectively and individually by an observer in the tower who remains unseen.
Toward this end, Bentham envisioned not only venetian blinds on the tower
observation ports but also mazelike connections among tower rooms to avoid
glints of light or noise that might betray the presence of an observer. (Barton & Barton, 1993:139)
In this way, each
prisoner could be observed secretly by whoever was in authority at the time.
Bentham believed that this type of penal system would be self-disciplining
where the prison controlled the thoughts and actions of the prisoner who would
be reluctant to deviate from the accepted norms fearing punishment in the form
of physical hardship as was characteristic of the times. Lots of lighting and
the ever-watching eyes of a supervisor afforded better discipline than the dark
dungeons previously used. The constant fear of being observed had an important
psychological effect on the prisoners. Another improvement was on the noise
level and chaos of a crowd. The design of the Panopticon cut down on the loud
masses of previous prisons. Each individual was contained where a guard could
clearly see them. An additional design feature, sidewalls, cut down on the
possibility of a conspiracy or joint escape. Prisoners were unable to
communicate with each other. After all, as Bentham noted,"overpowering the
guard requires a union of hands, and a concert among minds. But what union, or
what concert, can there be among persons, no one of whom will have set eyes on
any other from the first moment of his entrance?" (Bowring, 1962:46).
Bentham, with his Panopticon had replaced a
group of inmates with a collection of individuals. The main idea of the
Panopticon is to induce the feeling of constant surveillance into the prisoner
even if he is not presently surveyed. This renders the actual action of
observation unnecessary. The captive will develop a kind of paranoia and his
mind will always stop him from breaking the rules before he ever has the chance
to do so. This “anxious awareness of being observed” is their captor and
presents a type of mental prison. It actually makes it unnecessary to use force
to make a convict exhibit good behavior. Therefore the traditional, heavy
“houses of security”, with fortress like structure and abusive nature, could be
replaced by a light and economical “house of certainty”, the Panopticon"
(Louisville University, 2000:2)
Moreover, the Panopticon had an intended role of amplification embedded in its design, according to Foucault. “It arranged power, for the immediate salvation of a threatened society: its aim was to strengthen the social forces – to increase production, to develop the economy, spread education, raise the level of public morality; to increase and multiply.” (Foucault, 1995:208) The panopticon design could also be used in society for other functions: hospitals, schools and military barracks.
Jeremy Bentham agreed with an admirer, James Madison, who
wrote him a letter and to which Bentham replied in a return letter
I am then, in your declared opinion,
the man best qualified for the drawing up a complete body of laws. I rejoice to
find it so. Why? Because by this means I obtain the fairest chance, which from
any one hand I could have received, for the being enabled to render to mankind
that service, the endeavor to qualify myself for which, has been the greatest
business of my life. (Conway, 1989:72).
Even though Bentham's disciples have promoted
and published many of his works, Jeremy Bentham spent his life doing what he
loved most, writing and reforming.
Jeremy Bentham was both praised and criticized
throughout his life. Peers praised him for his writings and the impact he had
in furthering the Utilitarian viewpoint. On the other hand, Bentham was
criticized for his methods he used to bring his opinions to light, his writings
and his theory of isolated, self-disciplined incarceration as the best method
to control prisoners and prevent deviant behavior.
BENTHAM'S
METHODS AND WRITINGS
One critic, William Hazlitt, who
rented Bentham's house, felt Bentham was more a compiler of other people's
thoughts than an original thinker. He elaborated
He has methodized, collated and condensed all the materials
prepared to his hand on the subject of which he treats, in a masterfly and
scientific manner, but we should find a difficulty in adducing from his
different works (however elaborate or closely reasoned) any new element of
thought… (Hazlitt, 1825:5)
Charles Kay Ogden (1789:x-xi), who
wrote the introduction to Bentham's work The Theory of Legislation
observed that Bentham had
"…a very powerful influence on
the political and legal sphere, but that as a thinker he was not very original,
not even very profound, a trifle confused on ultimate philosophical issues and
prone to oversimplify complex problems…"
William Hazlitt thought Bentham's
view of legislation and its place in guiding mankind's behavior wouldn't hold
water (Hazlitt, 1825:10). Bentham, in his Introduction to the Principles of
Morals and Legislation stated he did not expect his proposed calculus would
work "in every legislature or judicial operation" (1970:32) so I
believe he knew it wasn't the ultimate solution.
Hazlitt (1825:12) did not think man
was or could think logically as Bentham's theory required in order to be
successful in deterring deviant behavior. He felt that shame not fear guided
people to obey laws. "It is the apprehension of being stigmatized by
public opinion, the fear of what will be thought and said of them, that deters
man from the violation of the laws…"
BENTHAM'S
ROLE IN THE UTILITARIAN MOVEMENT
"The previous Utilitarian
systems - except Cumberland's, Hume's (in its later form) and Hartley's had
assumed that all motives were ultimately selfish while Bentham's, by virtue of
its very formula, suggested devotion to one's fellow men". (Albee,
1957:180) Bentham said "A man, a moralist, gets into an elbow-chair and
pours forth pompous dogmatism's about duty-and duties. Why is he not listened
to? Because every man is thinking about his own interests." (Bentham, Deontology,
V.1,1983:12)
Bentham changed his classifications
of virtues from three in his work Principles of Morals and Legislation
to two in Deontology, thus weakening his position and causing his latter
work Deontology to appear unfinished. (Albee, 1957:180) Albee points out
that Bentham's explanation of his classifications of pleasure and pain in both Principles
of Morals and Legislation and Deontology has not merit to assist
mankind in the actual computation of pleasures and pains. The list actually
points out Bentham's "narrow and mechanical view of human nature".
(Albee, 1957:186) (Etzioni 1988:24) felt the original concept of utility as
developed by Bentham was "narrowly self-oriented and straightforwardly
hedonistic."
Compared to writings by previous
Utilitarians, Bentham does not contribute anything new except the
classifications themselves. Bentham just emphasized that we must compute
consequences and act accordingly. Bentham states "Vice may be defined to
be a miscalculation of chances: a mistake in estimating the value of pleasures
and pains. It is a false moral arithmetic; and there is the consolation of
knowing that, by the application of a right standard, there are few moral
questions which may not be resolved with an accuracy and a certainty not far
removed from mathematical demonstration." (Bentham, Deontology, V. 1,1983:131)
He attempted to "reduce our moral judgements to a series of problems in
moral arithmetic." (Albee, 1957:188) Unfortunately his attempts were not
successful and gave a false impression of the Utilitarian doctrine.
According to Albee (1957:190),
Bentham "contributed almost nothing of importance to Ethics, considered
strictly as such, though he unquestionably did more than any of his
contemporaries to bring the Utilitarian theory into popular ethical
discussions." J.S. Mill went so far as to deny that there was any Bentham
school of thought. He felt his father James Mill had more personal influence
than Bentham stating "The influence which Bentham exercised was by his
writings. Through them he has produced and is producing effects on the
condition of mankind, wider and deeper, no doubt than any which can be
attributed to my father. (Bentham) is a much greater name in history, but my
father exercised a far greater personal ascendency." (Mills,1873:101).
Radical reformers such as Sir
Francis Burdett, Leigh Hunt, William Cobbett and Henry Brougham praised
Bentham's work. Publishers who identified with Bentham's radical views tried to
communicate them to the common layman. Jonathon Wooler published excerpts in
his journal, Black Dwarf. Burdett quoted Bentham to support his case for
universal suffrage, annual parliament and vote by ballot. (Spartacus, 2000)
Charles Kay Ogden (1889-1957) of
Cambridge University observed that Bentham had
"…a very powerful influence in
the political and legal sphere, but that as a thinker he was not very original,
not even very profound, a trifle confused on ultimate philosophical issues and
prone to over simplify complex problems…" (Ogden, 1931:x-xi)
INCARCERATION
AND THE PANOPTICON
Bentham, who was from the Classical
School, believed like his fellow classicists that the way to deter future
deviance was by applying "rationally calculated punishment." (Pfohl,
1994:79) This punishment was carried out by the invention and use of large,
centralized state prisons. Bentham advocated for his design, the Panopticon,
which was described in detail previously. This style prison used self
discipline to control the prisoner's behavior. Michel Foucault, the French
theorist, took Bentham's invention to design a human society where discipline
is its organizing force. He presented the Panopticon as a "metaphor for
the means by which the entrenched powers maintain control over people
today." (Sirius, Online, 2000:1) The self-discipline this model encourages
becomes a mental prison to control the behavior of society.
The French Code of 1791 was the
closest code of laws to incorporate the Classical viewpoint of one punishment
for the same crime regardless of who committed the crime or why. The code was
soon criticized for having "no recourse for persons committing the same
act under very different social circumstances." (Pfohl, 1994:76) Critics
wanted the Code rewritten to provide exceptions. This led to a revision in 1817
giving judges more discretion and latitude in recognizing age, mental condition
and extenuating circumstances. (USF, 2000)
The Classical School of thought
regarding punishment as a deterrent for deviant behavior became in short time
the only form of punishment which resulted in the "great uniform machinery
of the prisons" (Pfohl, 1994:80). Foucault analyzed this popular trend as
the response of a capitalist marketplace dominated by societal power structures
that eagerly embraced the total control of prison technology.
Critics still felt the need to
address the mental state of the offenders and subjective circumstances.
Philosopher Paul Johann Anselm and Sir. Robert Peel were among these critics.
They wanted and accepted changes including recognizing "the premeditation
of the deviant act, the possibility of extenuating or mitigating circumstances,
and the suggestion that some deviant actors should not be held accountable for
their acts by virtue of their insanity." (p. 77) The Classical theory
lasted less than a century and then was replaced by the pathological
perspective which "scientifically explained the cause of deviance and
clinically produced the cure." (p. 86)
DETERRENCE
Classical theorists like Bentham
believed that punishment reduced future deviance by instilling a fear of
punishment in the criminal offender and society. In addition the establishment
of criminal laws must have a strong support by society if they are to be
effective. Bentham said "With what chance of success…would a legislator go
about to extirpate drunkenness and fornication by dint of legal punishment? Not
all the tortures which ingenuity could invent would compass it, and before he
had made any progress worth regarding, such a mass of evil would be produced by
the punishment, as would exceed, a thousandfold the utmost possible mischief of
the offense" (Schur, 1969:191). Bentham clearly thinks sanctions operating
not just after an act, as responses to a wrong that has already been done, but
also before hand, in order to discourage such behavior. (Lyons, 1997) Recently
there has been a decline in crime rates. The National Center for Policy
Analysis attributes this to "courts handing out tougher punishments for
crime and potential criminals know it and fear it." (NCPA, 1998:1)
Punishment was ignored largely by
leading texts in the criminology field. Punishment was thought of as an emotion
rather than scientific inefficient procedure. According to Pfohl, (1994:88)
"studies of specific deterrence have resulted in negative findings."
General deterrence research is mixed. Charles Tittle, a deterrence researcher,
found that the certainty of punishment played more of a part in deterrence than
the severity. This indicated that "how one is punished may not be as
important as whether one is punished."(p. 89)
Another aspect of deterrence involves whether the
perceptions of punishment are related to the likelihood of deviating. Research
indicates this classical school idea is true. When a person believes punishment
is likely for deviant behavior the person will choose not to deviate.
JUSTICE
IN THE CLASSICAL SCHOOL OF THOUGHT
Despite the classical school's
emphasis on "rational dignity and individual fairness" critics feel
Bentham and his contemporaries reinforced rather than changed the inequities
found in our social system of control. (Pfohl, 1994:95) Under Bentham's theory
of sanctions, nobody will escape punishment if they deviate. Unfortunately, in
reality, some groups in society have been scrutinized more closely and have
been controlled more closely than others. An example of this is the treatment
of the poor vs. the rich, the African-American people vs. the White people. But
would the classical theory change this? Pfohl doesn't believe so. He theorizes
that "the classical perspective will favor a very specialized form of
rationality - the rationality of the advantaged, the rich and the powerful. The
rationality of the disadvantaged, the poor and the powerless will be either
denied or classified as deviant." (p. 96)
The
Death Penalty
Bentham was against capital
punishment preferring harsh punishment as a better deterrent of crime. Research
agrees with his belief. According to the National Coalition to Abolish the
Death Penalty, "governments that have the death penalty continue to have
higher homicide rates than those who do not." (NCADP, Online, 2000:1)
Sixty-seven percent of law enforcement officials also agree with Bentham's
view. He also believed that the deterrent value of capital punishment would be
largely reduced if executions were not made public.
Bentham, indeed, advocated an even more awe-inspiring ritual
than the Sheriff's, with a black scaffold, the office of justice dressed in a
crepe, the executioner masked to augment the terror of his appearance, the
judges in attendance and serious and religious music preparing the hearts of
the spectators for the important lesson they were about to receive."
(Hibbert, 1963:69)
Recently students at the University
of Texas expressed their views about the effectiveness of the death penalty to
deter crime. Supporters of the death penalty thought achieving model citizens
and a better society happen through fear and intimidation. One student said
that "deterrence can only work if the threat of punishment is combined
with the conviction that the forbidden acts are not only illegal and therefore
punishable but immoral." (Cox, 2000:1) Another student criticizes
Bentham's view of imprisonment over death by reasoning that people thinking
about committing murder, knowing they will be released early on parole will go
ahead and commit the crime. One student goes beyond deterrence offering the
thought that the death penalty would rid society of repeat offenders thereby
preventing prison overcrowding. (Wofford, 2000)
William Hazlitt, Bentham and others
throughout the years have envisioned a perfect, well-ordered society. Jeremy
Bentham wanted to achieve this through legislation. He was optimistic that the
nature of man could change. Researchers continue to take up this ideal today as
they go forward in their search to explain, control and prevent deviance.
Following Bentham's death, many other schools of thought emerged. Some like the
neo-classical school agreed and built upon the foundation laid by Bentham and
others. More recently "rationality" thinking has emerged in the form
of the "justice model" and "rational choice". Chief
thinkers in these schools were David Fogel, Ernest van den Haag, James Q.
Wilson and Ronald Clarke.
Jeremy Bentham's principal
assumptions that he shared with other classical theorists were (1) people are
rational and (2) punishment deters crime. (Pfohl, 1994:85, 95) During the past
decades, scholars have tested the validity of these assumptions.
EMERGING
THEORIES
Derek Cornish and Ronald Clarke developed the rational
choice theory, which sees crime as an event taking place at a specific time and
in a specific place. Another version of this is the routine activities theory
developed in 1979 by Lawrence Cohen and Marcus Felson who linked changes in
crime rates to the routine daily activities of Americans. Philip Cook expanded on Cohen's and Felson's
work by developing the criminal opportunity theory. Another related theory
known as the Positive Political Theory is a recent version of the rational
choice theory. It has four foundations: rationality assumption, component
analysis, strategic behavior and theory building. (McCubbins, 1996) Another theory built on the classical school
of thought is the just deserts model which details that criminals deserve their
punishment. (Keel, 2000)
James Q. Wilson suggests the possibility that juveniles make
bad choices because of the lack of morality absent in their lives (Wilson,
1993:249). Wilson along with Ernest van
den Haag conducted studies to determine the effectiveness of Bentham's theory
of punishment as a deterrent. Both these scholars agreed with Bentham's
advocation of swift and certain punishment to deter delinquency. These men
suggest four categories of punishment. They include:
1.
General
deterrence - fear of punishment deters would be criminals
2.
Specific
deterrence - fear of punishment deters an offender from repeating his crime.
3.
Incapacitation
- prisoners do not commit crime because they are locked up
4.
Retribution
- punishment is deserved (Keel, 2000)
Contemporary
legal systems embrace all these reasons. Coinciding with the publication of
James Q. Wilson's book Thinking About Crime in 1975 was a conservative
shift in U.S. public policy which resulted in the election of Ronald Reagan in
1980. Political decision makers began to embrace Wilson's ideas to bring crime
rates down. Studies currently tend to agree with Bentham's beliefs that
"using proportional but perfectly certain punishment to render unacceptably
painful to the prospective criminal any behavior that would otherwise be likely
to cause injury to others." is effective. (Pfohl, 1994:93) Psychologist R.
D. Parke (1977:25) found that the
shorter the time between punishment and the crime, the more effective the
punishment. Rewarding of good behavior deters bad behavior. Punishment must be
consistent to be effective. The severity of the punishment needs to suit the
offense.
Gary Becker (1968), an economist
believes that people commit crime because they receive pleasure from it. This
agrees with Bentham's theory of utility. Criminologist Jack Gibbs (1977) felt
no person can be deterred from criminal behavior unless perceiving the
punishment to be painful. The popularity of the classical school of thought
began to decline at the end of the 19th century to be replaced by
positivist criminologists.
Influence
of Bentham's Panopticon
The Panopticon model of the
perception of continual observation as a deterrent for misbehavior has been
adopted by many companies who use electronic monitoring to keep employees in
line. The monitoring can include keystroke counting, telephone service
observing whereby calls are counted, monitoring of computer screens, electronic
mail and the use of active badges that keep track of employees movements and
locations (Levy, 1994)
Foucault was also a supporter of the
use of a metaphoric panopticon concept to control behavior in society. He
suggests using the concept in classrooms, institutions for the mentally ill,
the workplace and when conducting experiments. Cameras and ever-watchful
supervisions now enclose the working man in a panopticon. A worker will fear
losing his job if his performance is not within the boundaries set by his
employer. (Deck, 1999)
Rational
Choice Theory
Rational Choice Theory developed out
of the utilitarian concept that we choose that which will provide the most
reward and will result in the least pain. A criminal when deciding whether to
burglarize a home will consider the visibility of the house, the presence of
security, availability of hidden entryways, distance from neighbors and
watchful eyes and places providing hiding spots. (csudh, 1999)
Robert Keel (1996:2,3), a
criminologist considers the rational choice theory by asking questions such as
"how are the elements of swiftness, certainty, and severity of punishment
interrelated? Studies indicate that the more severe the punishment, the less
likely it is for juries to impose a specific sentence; therefore, it appears
that as severity increases, certainty decreases." Keel also considers tipping, overload, the
effects of capital punishment and the significance of aging out in his paper, Rational
Choice and Deterrence Theory.
Cohen and Felson's Routine Activities
Theory came along in 1979 and remained popular in the 80's. This theory is
closely linked to Rational Choice because it focuses on the crime and its
characteristics instead of the offender. Criminal offenses are related to the
nature of everyday patterns of social interaction. Crime rises in relation to
the number of suitable targets and the absence of individuals to protect those
targets. Crime prevention becomes an important part of this theory in deterring
crime. (DeMelo, 1999) Bentham would see the routine activities criminal as
being rational because he believed that "people freely choose all
behavior, both conforming and deviant, based on their rational
calculations." (Keel, 2000:1) Thus a rational choice would be the one
where there is no target hardening because pleasure in the activity would
outweigh the pain of possible punishment if caught.
Why the
Classical Theory is Popular Again
Leon Sheleff (1981:3,6) points out
that "as disillusionment sets in about the capacity to fully understand
the etiology (causes) of crime, as reservations are increasingly being
expressed about the rehabilitative goals of personal philosophy and
correctional practices…so the basic framework…of Beccaria's and Bentham's ideas
is slowly infiltrating back into criminology studies."
Pfohl (1994:83,84) lists many of the
trends in criminal justice today that draws from Bentham's theories. "Deal
with criminal deviance as a rational choice. Devise a fixed and certain system
of punishment. Warn everyone that, if caught, offenders will be punished
without exception. Emphasize sentences that are fixed and mandatory. Return to
the act. Treat all actors alike. Get rid of parole. Release prisoners when the
time of punishment is complete, not when it is estimated that they are cured or
rehabilitated. Eliminate the insanity plea. Deal with serious juvenile
offenders as adults."
The classical theory will always be
a part of the study of criminology and criminal justice. It may fluctuate in
popularity but the core beliefs of Jeremy Bentham will continue to influence
criminal deviance studies and policies for years to come.
CONCLUSION:
Jeremy Bentham impacted the times of
the century he lived in by his writings, his advancement of the importance of
punishment as a deterrence and the theory of utility and rationality. Other theories rose in popularity through
the years, but Bentham's school of thought is considered "classical"
because of its influence upon these theories and those who studied them and
implemented them. In part it was because of Bentham's efforts to reduce the use
of capital punishment that we have a more civilized method of applying justice
in the criminal arena. Though people have criticized his methods, writing
ability and some of his theories, Jeremy Bentham has become famous for his
expansion of the utilitarian way of looking at society and the many
improvements he made on the criminal justice system and legislation for the
betterment of England in the 18th and 19th century and
the United States in modern times.
BIBLIOGRAPHY
Albee, E.
(1901). A history of English utilitarianism. New York: The Macmillan
Company.
Anonymous.
(2000). The history guide: Lectures on European intellectual history.
(Online) Available. http://www.pagesz.net/~stevek/intellect/bentham.html
Barton, B.
& Barton, M. (1993). Modes of power in technical and professional visuals.
JBTC. 7 (1). 138-162
Becker, G.
(1968). Crime and punishment: an economic approach. Journal of political
economy. 76:169-217
Bentham, J. (1776). A fragment
on government; being an examination of what is delivered on the subject of
government in general in the introduction to Sir William Blackstone's
Commentaries; with a preface in which is give a critique of the work at large.
In Montague, F. (ed).
Bentham, J.
(1970). An introduction to the principles of morals and legislation.
Oxford: Clarendon Press
Bentham, J.
(1789). Theory of legislation. London: Paul, Trench, Trubner
Bratliff.
(2000). Panopticon. (Online) Available. http://www.sirius.com/~bratliff/panopticon.html
Classical,
neoclassical, and rational choice theories. (Online) Available. http://www.cas.usf.edu/criminology/po3610b.html
(2000, September 27)
Conway, S.
(1989). The correspondence of Jeremy Bentham. Oxford: Clarendon Press
Cox, D.
(2000). Deterrence. (Online) Available. http://www.cwrl.utexas.edu/~tonya/spring/cap/pro1.htm
Deck, J.
(2000). The panopticon. (0nline) Available. http://www.louisville.edu/~jddeck01/panopticon.html
DeMelo, D.
(1999). Cohen & Felson's routine activities. (Online) Available. http://personal.tmlp.com/ddemelo/crime/routine.html
Etzioni, A.
(1988). The moral dmension. New York: The Free Press
Foucault,
Michel (1995). Discipline and punish,” New York: Vintage Books
Fox, J.
(1907). Benthamism. Handbook of Christian apologetics. (Online)
Available: http://www.newadvent.org/cathen/02482b.htm
(2000, September 7)
Gibbs, J.
(1977) Social control deterrence and perspectives of social order. Social
Forces. 56: 408-423
Goldworth,
A. (1983) Deontology. Oxford/New York:Clarendon Press
Halevy, E.
(1965). The growth of philosophic radicalism. New York: Augustus Kelley
Hazlitt, W.
(1825). The spirit of the age. Oxford University Press
Hibbert, C.
(1963). The roots of evil: A social history of crime and punishment.
Westport, Connecticut: Greenwood Press
Jeremy
Bentham: Biography
(Online) Available: http://www.spartacus.schoolnet.co.uk/Prbentham.htm
(2000, September 7)
Keel, R. Rational
choice and deterrence theory. (Online) Available: http://www.umsl.edu/~rkeel/200/ratchoc.html
(2000, September 5)
Levy, M.
(1994). Electronic monitoring in the workplace: Power through the
panopticon. (Online) Available. http://is.gseis.ucla.edu/impact/s94/students/mike/mike_paper.html
Lyons, D.
(1997). Mill's utilitarianism: Critical essays. New York: Rowman &
Littlefield Publishers
Mautner, T.
(2000). The penguin dctionary of philosophy. (Online) Available. http://utilitarianism.com/bentham.htm
McCubbins,
M. & Thies, M. (1996). Rationality and the foundations of positive
political theory. (Online) Available. http://polisciexplab.ucsd.edu/mccubbin/current/ratcho.htm
Mill, J.S.
(1910). Utilitarianism, lberty & representative government. New
York: E.P. Duffon & Company
National
Center for Policy Analysis. (1998). NCPA study: Punishment deters crime.
(Online). Available. http://www.ncpa.org/pi/crime/aug98e.html
National
Coalition to Abolish the Death Penalty. (2000). Deterrence…fact or fiction? (Online).
Available. http://www.ncadp.org/fact5.html
Olsen, K.
(1999). Daily life in 18th century England. Westport,
Connecticut: Greenwood Press.
Ogden, C.K. (1932). Bentham's theory of fctions.
London: Broadway House
Panopticism? (Online) Available. http://athena.louisville.edu/~jddeck01/panoptic.htm
(2000, October 1)
Parke, R. (1977). Some effects of punishment on children's
behavior - Revisited. Understanding a child's world. New York:
McGraw-Hill
Pfohl, S. (1994). Images of deviance and social control.
New York: McGraw-Hill Company.
Plamenatz. J. (1958). The English utilitarians.
Oxford: Basil Blackwell & Mott Company
Rational choice theory (2000). (Online) Available. http://uregina.ca/~gingrich/f1000.htm
(2000, September 27)
Schur, E. (1969). Our criminal society. Englewood
Cliffs, New Jersey: Prentice-Hall
Sheleff, L. (1981). The relevance of classical criminology
today. The mad, the bad and the different: essays in honor of Simon Dinitz. Lexington:
Massachusetts: Lexington Books
Stephen, L. (1950). The English utlilitarians.
London: Lund Humphries
Stewart, I. (1998). Jeremy Bentham - Truth versus
Ashhurst. (Online) Available: http://www.law/mq.edu.au/Units/law420/LAW203S/Ashhurst.htm
(2000, September 13)
Sweet, W. (1998). Jeremy Bentham. (Online) Available:
http://www.utm.edu/research/iep/b/bentham.htm
(2000, September 7)
Wilson, J. (1993). The moral sense. New York: The
Free Press
Wofford, J. (2000). Deterrence. (Online) Available. http://www.cwrl.utexas.edu/~tonya/spring/cap/pro1.htm