On Beccaria’s Views on the Death Penalty

Jun 2017 · Book Review

Disclaimer: This post was originally written in Chinese and translated into English by GPT-5.2.

Abstract: Beccaria’s thinking on the death penalty is of great significance, far-reaching in influence, and has made an indelible contribution to advancing today’s global process of abolishing the death penalty. In general, Beccaria’s death-penalty thought takes as its main content a clear and systematic exposition of abolitionism, and it embodies the internal characteristic of combining social contract theory and utilitarianism. From the perspective of social contract theory, as the theoretical foundation of his penal law system, Beccaria was deeply influenced by Rousseau’s theory: both emphasized that the prerequisite for the emergence of the social contract is human natural rights (such as the right to life) and humankind’s self-interested nature. His innovative significance lies in that, on the basis that humankind cedes only part of its freedom rather than all of it, he denied the power of the state and the law to put citizens to death. Beccaria’s utilitarian thought takes humanitarianism as the highest pursuit and crime prevention as the specific goal, which makes his penal law theory rich in modesty and deterrence rather than a simple lex talionis retributive punishment. In addition, Beccaria’s abolitionist thought on the death penalty is not thorough. This article mainly takes three aspects—social contract theory, utilitarianism, and incompleteness in his death-penalty thought—as entry points, and offers commentary on each in turn, analyzes relevant controversies, and provides corresponding supplements, fully affirming, in standpoint, the progressiveness and prudence of his death-penalty thought.

Keywords: Beccaria; death-penalty thought; abolition of the death penalty; restraint in criminal law; utilitarianism; humanitarianism

The question of whether the death penalty should be retained or abolished has always been a hot topic in the field of criminal law. From the highest decision-making bodies and legislative, judicial, and law-enforcement organs, to criminal law scholarship and the broader legal community, and then to the general public, all have participated in the discussion; and due to differing positions, there remains considerable controversy to this day. For example, in China, there are currently disputes such as whether the death penalty should be abolished and whether it can be abolished now[1]. But generally speaking, from a global perspective, restricting and abolishing the death penalty is the general trend[2], and this includes China; some scholars even put forward corresponding theses as early as twelve years ago[3]. The ideological implications behind death-penalty restriction and abolition—collectively referred to as the process of abolishing the death penalty—are a synthesis of factors such as religious concepts, the concept of natural rights, and human-rights concepts. It can also be said that “the history of abolitionism from its rise to its unfolding is a process from belief in the sanctity of life, to advocacy of natural rights, and then to respect for basic human rights.”[4] Today’s global phenomenon of restricting and abolishing the death penalty is precisely one link in this process. Zhang Mingkai even asserts: “The history and trend of the evolution of punishment indicate that the death penalty will inevitably be abolished. The debate over whether to retain or abolish the death penalty is merely a debate over when to abolish it.”[5]

When citing the classics, one must not forget one’s forebears. In the modern sense, the reason the issue of retaining or abolishing the death penalty can become a hot topic and even a point of controversy, and the reason the process of abolishing the death penalty can become a trend, are inseparable from the pioneering work of the Italian jurist Cesare Beccaria (1738–1794). As the “law of modern criminal jurisprudence,” Beccaria, in his classic jurisprudential work On Crimes and Punishments, devoted nearly one-tenth of the book to, for the first time, clearly and systematically proposing the idea and concept of abolishing the death penalty. This not only caused a sensation at the time and propelled the abolition process in certain countries, but even today its influence remains unabated. Thus, when we discuss issues related to the death penalty, Beccaria is always an ideological mountain we cannot bypass. Researching and organizing his death-penalty thought is of no small significance for drawing lessons from the past and illuminating the future, and for continuing to deepen research on the death-penalty issue. This article intends to explain this from the following two aspects:

Beccaria’s death-penalty thought is very clear, namely: the death penalty is not a right, and it is neither necessary nor beneficial, so it should be abolished. After the abolition of the death penalty, life at hard labor may be used to replace its function. In Chapter 28 of On Crimes and Punishments, “On the Death Penalty”[6], he systematically provided reasons respectively from the angles of the legal essence of criminal law and the actual efficacy of the death penalty.

From the perspective of the legal essence of criminal law, criminal law in principle has no right to put a person to death. Beccaria said: “Sovereignty and the laws, they are merely the sum of small portions of private freedom; they represent the general will as the aggregate of individual interests. But who would be willing to confer upon others the power over one’s life and death? When each person makes the smallest sacrifice of freedom, how could he also stake his life, which ranks above all wealth?” (Chapter 28) That is to say, since no one would cede the precious right to life to anyone, people naturally would not cede their right to life to the law; therefore, the law’s holding the power of life and death loses its foundation, is unreasonable, and should not become law.

The basis of the above argument is social contract theory. First, social contract theory highly values human natural rights, as Beccaria said: “The security of one’s life is a natural right” (Chapter 30). Therefore, in theory, as a natural right, the right to life is neither alienable nor deprivable. Second, on the premise of recognizing each person’s natural rights such as the right to life, people begin to use a public will to form a contract, so as to ensure that each person’s maximum interests are not infringed by others and can be effectively protected after being infringed. Thus, the social contract is a product of self-interested human beings, based on real needs, mutually compromising, ceding part of their freedom, and reaching a balance of interests; otherwise, a disorderly social state and endless mutual infringement will ultimately harm everyone’s vital interests. This means: from the spirit in which it is concluded, the social contract of human society cannot be used to infringe citizens’ natural rights, because that would be a “paradoxical” direct negation of the prerequisite for the social contract’s emergence. As a kind of social contract, the power to punish—more precisely, as the most powerful motivational guarantee of effectiveness within the social contract—is also the sum of the smallest quantity of freedom ceded by people (of course not including the right to life), so criminal law should expressly prohibit, rather than expressly provide for, the death penalty. Beccaria said with no small measure of irony: “The laws, which express the public will, abhor and punish murder, and yet commit it themselves; they forbid citizens to be murderers, and appoint a public murderer. I regard this as an absurd phenomenon.” Put analytically, the essence of this absurdity lies in that if citizens’ right to life can be forcibly taken by society or the state, can we still say, “Did he not originally have this right?” (Chapter 28)

In addition, from the standpoint of the death penalty’s actual efficacy, the implementation of the death penalty cannot achieve its expected purpose, namely, deterring or preventing crime. Experience shows that “no new torture in history has ever made people determined to offend society repent,” and the death penalty is no exception, so the deterrent effect of the death penalty is temporary and limited. By contrast, replacing the death penalty with life at hard labor is not only, in intensity, “sufficient to change any determined mind,” but also the pain of lifelong loss of freedom can serve as a warning for onlookers and future generations, so “this is the most powerful means of preventing crime.” This difference is determined by human nature. Beccaria said: “What makes a greater impression on the human mind is not the intensity of the punishment but its duration. For what most easily and most enduringly affects our feelings is not so much a violent and brief motion as small but repeated impressions.” “Our spirit can often resist violence and extreme but transient pain, yet it cannot withstand the wearing away of time, cannot endure lingering troubles.” The death penalty concentrates all the power of admonition and punishment in a single instant, making people “distracted by present misfortune and unable to see the future,” so that “in the eyes of most people, the death penalty has become a spectacle, and some people feel an indignant pity for it.” Life at hard labor, however, carries the criminal’s pain through an entire lifetime, making onlookers feel fear and recognize the magnitude of the crime and the severity of the corresponding punishment; but for the criminal himself, he experiences a comfort from the fact of surviving that others cannot understand. (Chapter 28) In sum, according to the utilitarian calculation formula of “the greatest happiness shared by the greatest number,” life at hard labor is superior to the death penalty. The death penalty should be abolished and replaced.

However, Beccaria was not an absolutely thorough abolitionist of the death penalty. He held that “only for two reasons can the execution of a citizen be regarded as necessary. The first reason is: after being deprived of freedom, a person still has some connection and some power affecting the security of this country; or his existence may cause dangerous turmoil within the established governmental system.” The second reason is: “Putting him to death is the fundamental and only preventive measure to prevent others from committing crimes,” but this mainly refers to “when a country’s freedom has disappeared or it has fallen into anarchy,” that is, when “chaos replaces law.” (Chapter 28) Obviously, when these two situations arise, in order to protect the social contract from being violated, the death penalty becomes the last, unavoidable worst option when there is no other way. This, too, is richly colored by utilitarian thinking.

II. Controversies and Supplements Regarding Beccaria’s Death-Penalty Thought

Once Beccaria’s death-penalty thought was made public with the publication of On Crimes and Punishments, it immediately triggered panic and counterattacks from religious and conservative forces. Critics accused the author of being an “enemy of religion and Christianity,” a “vile philosopher and bad person,” such that the author for a time felt his fate to be in grave danger. Fortunately, some upright people came forward to help, especially the active protection of Count Carlo Firmian, the administrative head of Milan at the time, and Beccaria thereby escaped disaster. (Guide: Sections 2 and 8) Although his death-penalty thought has been both supported and contested since its publication, the enormous influence behind it is visible everywhere. From the 1780s onward, Tuscany and Austria temporarily set aside the death penalty, then some European and American countries gradually raised the conditions for applying the death penalty, and even some regions explicitly prohibited it; and then the global abolition of the death penalty became a trend—none of these are separable from Beccaria’s pioneering merit[7]. But at the same time, support for and controversy over Beccaria’s death-penalty thought did not therefore subside. However, what we must be aware of is that: with changes in time and space conditions and the enrichment of modern criminal law practice, today’s controversies over retaining or abolishing the death penalty are different from those of the past. Whether one supports the death penalty or denies it, in direction they all point toward a more just and more effective criminal law system. In other words, later generations’ controversies and supplements to Beccaria’s thought are all a pursuit of a more ideal criminal law, and are not contrary to the original intention of classical criminal jurisprudence established by Beccaria. This is the significance of our discussion of his death-penalty thought, and it is also the key to understanding this article.

Since the foregoing has already demonstrated the components of social contract theory, utilitarianism, and incompleteness in Beccaria’s death-penalty thought, in this section we will also offer commentary on these three aspects one by one:

(I) Social Contract Theory

Social contract theory is the theoretical foundation of On Crimes and Punishments and is also, in Beccaria’s view, the origin of punishment and the power to punish. Its main points, as demonstrated above, are: the inalienability and non-deprivability of natural rights such as the right to life are prerequisites for the emergence of the social contract; the purpose of concluding the social contract is to protect the common interests of all members of society; the social contract is a product of self-interested human beings, based on real needs, mutually compromising, ceding part of their freedom, and reaching a balance of interests. These ideas of Beccaria clearly reflect Rousseau’s influence.

In Rousseau’s social contract theory, human natural rights and self-interested needs are the premises of everything. He said: “The foremost law of human nature is to preserve one’s own existence; the foremost concern of human nature is the concern one ought to have for oneself,” and “it is only for his own benefit that he will transfer his freedom,” and thus the social contract arises. But different from Beccaria, when humans transfer their freedom, Rousseau emphasizes “all rights,” not “part of freedom”: “Each of us puts his person and all his power in common under the supreme direction of the general will,” and “each associate, together with all his rights, transfers them entirely to the whole community.” Therefore, Rousseau regarded the death penalty as legitimate, and sentencing criminals to death as conforming to the spirit of the social contract: “Whoever wants to preserve his life at the expense of others ought also, when necessary, to give it up for them.” “It is precisely in order not to become the victim of a murderer that people consent that, if they themselves become murderers, they too must die.” For this reason, Beccaria regarded the death penalty as “a war of the nation against one citizen,” whereas Rousseau regarded the murderer’s act of killing as “waging war on the state,” and therefore “he should be banished as a breaker of the covenant, or put to death as a public enemy”[8].

When later scholars opposed Beccaria’s use of the social contract to deny the death penalty or argued that his reasons were insufficient, they inherited Rousseau’s thought, but went further. For instance, Hou Guoyun and others believe that, with respect to the death-penalty issue, the social contract can be divided into at least three kinds: the contract between the victim and the state, the contract between the victim and the murderer, and the contract between the murderer and the state. Thus, the state plays an intermediary role in the contract linking the victim and the murderer; specifically, “the state uses punishment to bear the obligation of personal revenge for citizens.” Therefore, “when people’s right to life is infringed by other individuals, as an obligation, the state must take revenge on behalf of citizens, thereby negating private revenge.” “This power of the state does not come from the defendant’s authorization, but from the victim’s authorization.” Hence, the death penalty of life for life is a principled requirement of contracts concluded by people in equal status and is “completely equal.” As for Beccaria’s view that the death penalty is “logically absurd,” that is because “Beccaria here confuses the boundary between the criminal’s killing and the state’s killing in implementing the death penalty as punishment for the crime”—“the former is illegal killing, the latter is legal killing,” like the relationship between kidnapping and arrest. The conclusion is: it is not absurd for the state to punish murder with the death penalty; Beccaria’s reason for opposing the death penalty is insufficient[9]. It is worth noting that Hou Guoyun here believes that Rousseau’s social contract theory only requires individuals to cede part of their freedom or rights, and thus his analysis actually follows Beccaria’s line of thought.

However, regarding the purpose of the state’s using the death penalty for “private revenge” as Hou Guoyun and others put it, the result of the death penalty may run counter to the intent. Because “such an expansion of the concepts of ‘victimization’ and ‘victim’ not only endangers the safeguards of a state governed by law, but also privatizes criminal law and blurs the distinction between punishment and private revenge.”[10] The life-for-life death penalty in Hou Guoyun et al.’s theoretical analysis is in fact a reflection of equivalence or lex talionis retribution in traditional retributive punishment. This kind of retributive punishment satisfies the legitimacy of punishment, but may have little effect on the purposiveness of punishment, namely, crime prevention. Moreover, in concrete operation, it will also encounter unavoidable practical difficulties. For example, a murderer who kills one person can be sentenced to death, and it is completely equivalent; but for a murderer who kills more than one person, how should sentencing be done? For causing multiple deaths, for seriously disrupting social order, for selling out national interests, for endangering national security, how should one determine the crime and measure the punishment? Then, how is the principle of proportionality between crime and punishment to be implemented? In fact, proportionality between crime and punishment is only a vague rather than a specific theoretical framework; in concrete operation, what has real meaning is to match the seriousness of the crime and the severity of the punishment within their respective gradations of degree[11]; otherwise, it will inevitably cause incoherence within the punishment system. Second, lex talionis retribution also does not conform to the current development trend of limiting punishment within retributive punishment. “The state must punish the defendant justly, rather than impose the victim’s demands on the defendant.” This is because: “(1) people’s sense of retribution is not fixed and unchanging, but gradually declines. A person whose desire for revenge is very strong at the time of victimization may, after time passes, reconcile with the perpetrator even if the perpetrator has not been punished… (2) the feelings of the victim and his family in individual cases are not universal. In many cases, victims need spiritual comfort and some kind of assistance more, and not necessarily revenge.”[12]

In fact, the source of the above controversies arising from social contract theory may lie in social contract theory itself. First, if the social contract truly embodies the maximum public interest, then the public opinion embodied in the social contract will change with the times; the global historical process of abolishing the death penalty (including its repeatedly fluctuating stages) and the historical process in which the punitive force of punishment is gradually restricted all illustrate this. For example, Chen Xingliang believes: “The more economically developed a society is, the more tolerant it is of crime.” Because the cost of preventing crime is high, while the cost of punishing crime is low; the latter is more suitable for economically underdeveloped countries, but it can also easily lead to abuse[13]. Second, due to individual limitations, each person’s interpretation of the content of the social contract inevitably has deviations. Or, in other words, who holds the supreme right to interpret the social contract? Is it in the hands of the current majority, or in the hands of the current minority? This cannot be clarified by theoretical interpretation alone. But obviously, regarding the death penalty, different people have different understandings; this is why the issue of abolition versus retention becomes controversial (in terms of the overall trend, there can be mainstream opinions). Third, what if the social contract theory, as a hypothesis, is not true? Taking a step back, can the social contract effectively explain all social relations in a concrete way? For example, Guo Donglei believes: “The relationship between citizens and state power cannot be wholly summarized by contract theory… and historically, to this day, no true contract bearing the offer and promise of the state and citizens has been unearthed or appeared.” Therefore, Hegel directly pointed out in Elements of the Philosophy of Right: “But the state is not a contract at all; and the protection and guarantee of the life of individuals as single persons may not even be the essential nature of the state’s substantiality.” If so, then the state “even has the right to make demands upon such life and property itself, and to require sacrifice for the country”[14]. Fourth, as long as not everyone is aware of the existence of the social contract and further recognizes such existence, then regarding whether the theoretical social contract exists or not, who gets to decide?

My understanding is: as a hypothesis used to explain relationships among people and between people and society, the social contract has some explanatory power and thus can exist; but the traditional social contract theory, rather than being a theoretical explanatory tool used to explain relationships among people and between people and society, is more like a conceptual and idealized pursuit of a certain form of society, or a theoretical weapon to resist old social relations and coordinate new ones. But in a certain sense, changes in social structure, the uncertainties of life encounters, and humankind’s instinctive capacity for empathy also enable ideal social contract relations to be realized to some extent. History shows that the older the code, the more detailed and complete the criminal legislation seems to be, and the closer law and punishment are. Taking the source of ancient Chinese law as an example, it was “simply a unity of law and punishment”[15]. As the historical process continues forward, the boundary between modern criminal law and other laws becomes increasingly distinct, and the restraint of criminal law is increasingly embodied; the spirit of the social contract seems to be increasingly implemented as contradictions among social classes further differentiate (at least in explicit provisions). Then we believe that the abolition of the death penalty, or its de facto near-abolition (existing but not used, or used sparingly), is the general trend that cannot be reversed, and the social contract reflecting the majority public opinion will eventually confirm this.

(II) Utilitarianism

Utilitarianism is the guiding thought of Beccaria’s entire criminal law philosophy, but the utilitarianism here takes humanitarianism as the highest pursuit. He said: “Preventing crimes is better than punishing them,” so the highest rule of criminal law is “to guide people to enjoy the greatest possible happiness, or, in other words, to reduce to the greatest extent the possible misfortunes people may encounter.” (Chapter 41) His opposition to the death penalty is precisely to “win the case for humanity” and to “prove that the death penalty is neither necessary nor useful.” (Chapter 28) This thought conforms to the principle of restraint in criminal law. “Restraint in criminal law means that legislators should strive, with the smallest expenditure—using punishment sparingly or even not using it (instead using other substitute measures)—to obtain the greatest social benefit, namely, to effectively prevent and control crime.”[16] This is also why his penal measures differ from lex talionis retribution and are closer to limited retributive punishment. Beccaria’s view of the purpose of punishment can be summarized as: “With deterrent punishment as the mainstay and retributive punishment as the supplement; retribution delineates boundaries for deterrence, deterrence establishes benefits for retribution, and retribution is the means to realize the deterrent function.” It can be said to be quite fair.[17] There is no doubt that the starting point of Beccaria’s abolitionist thought on the death penalty is now widely accepted and hard to deny. Then, the focus of this section’s commentary is not, as in the previous section, to question utilitarianism itself, but to examine, in terms of the principled requirements of utilitarianism, whether Beccaria’s evidence for proving that the death penalty is neither necessary nor useful is valid, and whether it truly maximizes humanitarian utilitarian benefit. In other words, is abolishing the death penalty really more conducive to preventing crime?

Some scholars do not oppose abolishing the death penalty, but believe that the claim that “the death penalty ‘is not as effective in deterring crime as life imprisonment’” is untenable. For example, Hou Guoyun and others believe that “common sense tells us that strong stimuli leave more lasting impressions and longer memories.” Citing the view of Bentham, the founder of utilitarian philosophy, he argued: “(1) Generally, most people believe that no crime is more evil than death, and in order to avoid it, people are willing to bear any other suffering; (2) Death, considered as a punishment, is almost universally regarded as excessively severe.” He then cited as evidence the years of personal experience of former FBI Director J. Edgar Hoover, International Police Association President Edward J. Gilliland, and the renowned judge of the New York Criminal Court Samuel Leibowitz in dealing with criminal cases, to prove the deterrent effect of the death penalty on most people[18].

Some other scholars, such as Guo Donglei, oppose abolishing the death penalty and likewise believe that the claim that “the death penalty ‘is not as effective in deterring crime as life imprisonment’” is untenable, and that the death penalty has an irreplaceable necessity for existence. The reasons include: ① He believes that Beccaria’s exclusion of the death penalty “contained alarm at the abuse of the death penalty in the Middle Ages”; and it was also influenced by Enlightenment rationalism, “splitting a single factor out of the whole and magnifying it locally,” moving from concept to concept, resulting in bias in predicting the human mind. ② Intuitively, the irreversible fear caused by the death penalty has a greater deterrent effect than the fear of “lifelong servitude.” “Thus, judged from the perspective of common sense, the death penalty has deterrent force against crime, so whether the death penalty has a preventive effect is no longer a question.” ③ The death penalty system is a method and “tool” of criminal punishment and has no value orientation in itself; it should be applied according to the needs of national interests, social interests, and citizens’ interests, and cannot be generalized. Countries that have abolished the death penalty, such as Panama and Colombia in the Americas, are highly turbulent and not necessarily more humane. ④ From the perspective of criminology: “The primary task of the current criminal code is not to review whether the death penalty should be deleted from the criminal code, but to review how, before vicious crimes occur, to eliminate the social motivations that generate vicious crimes and the deviation of moral education. If the death penalty system is retained in the criminal code, and no one arbitrarily tramples on those criminal acts that contain death-penalty norms, then the debate over whether to retain or abolish the death penalty is unnecessary.”[19]

It is not hard to see that, as to comparing the deterrent strength of the death penalty and life at hard labor, it is both difficult to verify and difficult to falsify. As Arthur J. Goldberg pointed out: “People’s attitudes are also changeable. According to reliable opinion polls, some time ago a majority supported abolishing the death penalty. But today, an overwhelming majority supports its use.” “After many reversals and turmoil, the U.S. Supreme Court rendered a final judgment while reserving dissent: ‘The death penalty is not always contrary to the Cruel and Unusual Punishments Clause of the Eighth Amendment.’”[20] We will not forget that, when Jiang Qing was tried back then, she broke down when she heard “death penalty” but had not heard “with a two-year reprieve”; yet after time passed, she nevertheless committed suicide while on medical parole. Of course, the method of execution also affects its cruelty: a single shot, a single sword strike, and euthanasia are more “humane” than employing all kinds of means such as quartering, slow slicing, and crushing. But whether the cruelty of the death penalty bears a simple proportional relationship to its degree of deterrence does not seem to be the case. “If the people do not fear death, how can you use death to frighten them?” The cruelty of punishment can gradually numb the hearts of the world and in the end cause the authorities who carry out such cruel punishment to decay swiftly. As for life at hard labor, many also believe it is as painful and as cruel as the death penalty; Beccaria himself believed it was “more so rather than less so” (Chapter 28), and Zhang Mingkai has demonstrated from various aspects that life at hard labor should be abolished just like the death penalty[21]. In sum, we cannot reach a conclusion about which better accords with utilitarianism through a comparison of the deterrent strength of the death penalty and life at hard labor. Therefore, whether the death penalty should be abolished cannot be adequately addressed by this comparison alone. In other words, Beccaria’s proof in this regard is insufficient and lacks necessity.

According to the French philosopher Ricoeur, Western countries abolished the death penalty mainly for two reasons: first, “to give the offender a future,” and second, “the state’s self-restraint,” that is, “the state forbids itself from using the same violence against offenders”[22]. But these two reasons are both considerations of humanitarianism and restraint in criminal law, and have no direct relevance to utilitarianism. Of course, one might say “humanitarianism is the greatest utilitarianism,” but such a statement lacks an argumentative basis and is more like a belief. To be realistic, the third and fourth reasons given by Guo Donglei reflect the spirit of analyzing specific problems specifically, and are more persuasive than these two general reasons; but their shortcomings are that they cannot point out the development direction of criminal law, and reason ④ is logically confused and not pragmatic enough—since it is already known that the death penalty is an evil punishment, it is best to keep people from violating it; yet it tolerates the existence of this evil punishment, without telling us how offenders who violate it should be dealt with better—because from the criminological perspective, such violations are inevitable. Taken comprehensively, the conclusion we arrive at is that the death penalty should be abolished, but it cannot be abolished arbitrarily—in other words, the “value-neutral” death penalty is here again given a negative “value orientation” by the same author!

In summary, my view is: in the long run, abolishing the death penalty has more advantages than disadvantages. Specifically, the arguments of death-penalty supporters can be summarized as nothing more than: ① the death penalty conforms to the legitimacy of criminal law; ② the death penalty has deterrence. Beyond this, death-penalty supporters cannot provide any other reason; what they can do is oppose the arguments of abolitionists by either showing them to be insufficient, or offering other statements without substantive meaning, such as Guo Donglei’s reason ④ above. But as to ① the legitimacy of the death penalty, we believe this will lead to the lack of purposiveness in criminal law, make the principle of proportionality between crime and punishment impossible to implement, and ultimately damage criminal law itself. As Beccaria said: “Anyone who sees that the death penalty is applied equally to the act of killing a partridge, killing a person, or forging an important document will no longer make any distinction between these crimes and punishments; moral sentiment is thus destroyed. Such sentiment is the fruit of countless centuries and bloodshed; it has formed in the human heart with extreme difficulty and slowness; to cultivate such sentiment, people believe it necessary to rely on the noblest motives and a great deal of solemn ceremony.” (Chapter 33) Second, as to ② the deterrence of the death penalty, this clearly cannot constitute a sufficient and necessary basis for the necessity of the death penalty’s existence, because in this respect the death penalty is in no way the only method, and is even not the best method. Moreover, if the result of the death penalty is wrongful conviction, if sentencing one person to death conceals another greater crime, if the death penalty becomes a tool for powerful figures to maintain rule and crush dissent, then the irreversibility of the death penalty will provide a foothold for greater evils that follow. If we believe that people can be guided to do good, or that systems can restrict people from doing evil; if we believe that in fact the death penalty cannot cause cases of capital crimes to decrease but does cause the number of deaths to increase; if we believe that abolishing the death penalty can cultivate in people a quality of respecting life; if we believe that the sentiment of “only killing can appease public anger” can be dissolved—then the abolition of the death penalty is only a matter of time. Abolishing the death penalty is the greatest utility in humanitarian terms.

(III) Incompleteness

If the death penalty should in principle be abolished, then Beccaria’s incomplete attitude toward the death penalty would be inappropriate. But this is not the case.

Hou Guoyun and others criticize that the first situation Beccaria mentioned for applying the death penalty in fact refers to political offenders, because only important political offenders could still affect national security after being deprived of freedom and could still trigger turmoil within an established governmental system. They also cite Mandela as an example, implying that such a situation for applying the death penalty would become a tool for crushing advanced political forces and hindering historical progress. “Such influential political offenders, according to principles of international law, are not even permitted to be extradited, and the application of the death penalty is even less permissible.”[23] But this analysis does not accord with Beccaria’s original intent. Because when Beccaria said this, he presupposed the existence of a “peaceful kingdom of laws” with a “government supported by the whole country, which possesses strength both internally and externally, protected by strength and more effective public opinion.” Therefore, the claim of political persecution seems unreasonable. However, under Beccaria’s conception, such circumstances for applying the death penalty also seem not to arise. As for the second circumstance for applying the death penalty that Beccaria mentioned, because it occurs during special times of war and turmoil, when the law lacks good institutional safeguards, when “putting him to death is the fundamental and only preventive measure to prevent others from committing crimes,” it is already an act of last resort; because in such circumstances, like the above discussion that the death penalty lacks conditions for abolition, abuse of the death penalty is not hard to foresee.

In sum, Beccaria’s incompleteness regarding the death penalty precisely reflects his extreme prudence regarding the situations in which the death penalty is applied. And this prudence is a compromise, in light of real conditions, that accords with the greatest utility. But this incompleteness also suggests a certain degree of impracticality; for example, the first circumstance for applying the death penalty is not worth stating.