2015 23 report of the capital punishment commission

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2015 ). 23 Report of the Capital Punishment Commission (London: George E. Eyre & William Spottiswoode 1866). 284 Eur J Law Econ (2018) 46:275–302 123
Though Cesare Beccaria’s contributions to Western thought may have been forgotten over time, they were significant. For example, Beccaria’s writings laid the foundation for the University of Chicago’s ‘‘Law and Economics’’ movement as it relates to crime and punishment. 24 As Professor Bernard Harcourt writes: ‘‘Beccaria developed theories of marginal deterrence that later became a cornerstone of Becker and Posner’s economic model of crime. ‘If an equal punishment is laid down for two crimes which damage society equally, men will not have a stronger deterrent against committing the greater crime if they find it more advantageous to do so,’ Beccaria wrote, prefacing later economic analysis of crime’’ (Harcourt 2011 ). 25 In America, Beccaria’s writings have been cited by jurists as diverse as William Rehnquist and Richard Posner and William O. Douglas and Thurgood Marshall, 26 with Beccaria’s writings continuing to shape the deterrence debate (Shavell 2015 ). Since Beccaria’s time, policymakers have thus focused on—and fiercely debated— what response to crime works best. 27 While Beccaria favored education and milder punishments in lieu of harsh ones, the debate that Beccaria pioneered and shaped is still ongoing (Bellamy 1995 ; Ryan 2013 ). Beccaria himself has been credited as ‘‘one of the originators of classical deterrence theory’’ (Baldwin 2013 ; Jordi 2014 ). Beccaria’s writings, in fact, shaped penal codes throughout the world. ‘‘Punishments and the method of inflicting them,’’ Beccaria wrote, ‘‘should be chosen in due proportion to the crime so as to make the most efficacious and lasting impression on the minds of men, and the least painful impressions on the body of 24 ‘‘Most recently,’’ Harcourt ( 2011 ) states, ‘‘contemporary scholars of law and economics have embraced Beccaria as one of their own. Richard Posner traces his intellectual genealogy, in the area of penal law, specifically to Beccaria’’. As Harcourt ( 2011 ) adds: ‘‘ On Crimes and Punishments is celebrated as the first economic analysis of crime and Beccaria is revered as the first economist to have applied rational choice theory to the field of crime and punishment’’. As another source reports: ‘‘According to a theorem proposed by Cesare Beccaria and Gary Becker, the deterrence of massive sanctions is less effective tha[n] the deterrence of accurate enforcement. Thus for the offender, a sanction of 100 with a 50 percent likelihood of its application means a probability of paying 50, while a sanction of 80 with a 65 per cent likelihood of application means a probability of paying 52’’ (Forte 2010 ). 25 Beccaria’s writings have thus framed the deterrence debate, as well as the arguments against vengeance-seeking for past criminal transgressions, for more than two-and-a-half centuries. As Harcourt ( 2011 ) emphasizes: ‘‘The purpose of punishment is not to look backward, Beccaria emphasized— foreshadowing English utilitarianism. It will not undo a crime already committed. ‘The wailings of a

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