Just another false alarm...

I took Beccaria's book On Crimes and Punishments on holiday with me last week, and while reading it came across the section "Asylums", which I expected to deal with criminal insanity. But it only looks at places of asylum, such as churches, arguing that there should be nowhere outside the law, or running under its own laws (a Hobbesian thought) within a state. No mention of madness here, nor indeed is there any at any other point in the book, which is strange, since madness would be an interesting problem in a discussion of punishment even that far back, and as I'll discuss here, it's a particular problem with regard to the penal reforms Beccaria wished to introduce.

Beccaria argued that punishment should be "public, speedy, necessary, the minimum possible in the given circumstances, proportionate to the crime, and determined by the law". The very existence of insane asylums runs counter to all these principles. The "punishment" is not public, because those declared criminally insane are denied public trials, and placed behind locked doors without the public being made aware of it. It is not speedy, because it often takes a long time to prove insanity, removing the (Humean) connection between act and consequence that Beccaria wants to use to deter others. It is not necessary, as Althusser argues quite rightly in his autobiography, since acute episodes (such as the one in which he killed his wife) tend not to last very long, and are generally curable. Yet institutionalisation after a criminal act is often permanent, or at least very long lasting, going beyond what's necessary to punish a person, and thus also beyond "the minimum possible in the given circumstances", and the proportionate.

And punishment in the form of institutionalisation is not determined by the law, which is what's really important. Those placed in mental institutions, whether as a result of crimes or not, are being kept in confinement by private individuals rather than by the law, and are under the constant rule of those individuals in place of the rule of law. For Beccaria, such places should not exist, for exactly the same reasons that political asylums should not exist.

Now the argument here could go either way. A humane person like Beccaria might argue that this sort of confinement cannot be justified, and that the person declared not to have committed a crime by reason of insanity, should be allowed to go free (perhaps once treated). But much more persuasive on Beccarian principles is the argument that because asylums are outside the law, the person judged insane should be judged by the laws in the same way as any other criminal. Moreover, since the crime exists regardless of the state of mind of its perpetrator, not to punish it like any other crime is to remove the deterrent to others, in whose minds the possibility of an insanity plea is planted (this is a crap argument, actually, since in reality the insanity plea is only used in something like 1% of all criminal cases, 60-70% of which aren't murder cases, and in which it's only successful a quarter of the time - but nevertheless, it's a theoretically powerful argument). All the other points about speed, proportionately and publicity etc. equally suggest that the act should be treated in the same way as it would be were the perpetrator in full health.

Perhaps this is the reason why Beccaria didn't mention insanity. The same humane instincts which drive him to set forth his principles, in order to protect people from unjust punishment, seem to be the ones which most justify punishing those whose state seems to suggest that they cannot deserve it. If this is right, then Beccaria may well have recognised just how important madness is in any discussion of punishment, and in his realisation he may also have become aware that any discussion of it in his book could undermine his whole purpose in putting forth a humane philosophy of punishment. For it is in this discussion that those who would be reactionary can find new paths for their tyranny, removing it from the realm of intentions to the realm of acts.

This is the problem of any act-based morality. Beccaria is as concerned as Locke, Bayle and Rousseau before him to save people free from tyranny over their thoughts. For example, he argues with regard to suicide that "punishing it beforehand is to punish men's will and not their actions, which would be to control the intentions, a part of a man utterly free from the reign of human laws" (84). But in doing this, he has at the same time subjected us to the possibility of a tyranny over our actions. Those who perform no wrong action are saved, but those whose thoughts would mitigate the consequences of their actions are to the same extent condemned. And of course this problem is one which faces act-utilitarians (the only kind worth the name) right down to the present day.