an essay of crimes and punishment

An Essay on Crimes and Punishments

• Cesare Bonesana di Beccaria (author)
• Voltaire (author)

An extremely influential Enlightenment treatise on legal reform in which Beccaria advocates the ending of torture and the death penalty. The book also contains a lengthy commentary by Voltaire which is an indication of high highly French enlightened thinkers regarded the work.

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An Essay on Crimes and Punishments. By the Marquis Beccaria of Milan. With a Commentary by M. de Voltaire. A New Edition Corrected. (Albany: W.C. Little & Co., 1872).

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Beccaria – “On Crimes And Punishments”

November 4, 2018 By Margit

Cesare Beccaria is seen by many people as the “father of criminology.” Here is a brief summary of his ideas and famous essay “On Crimes and Punishments,” both in video and text format.

Table of Contents

Discussions about Crime and Punishment

Cesare Beccaria is seen by many people as the “father of criminology” for his ideas about crime, punishment, and criminal justice procedures. He was an Italian born as an aristocrat in the year 1738 in Milan. At that time European thought about crime and punishment was still very much dominated by the old idea that crime was sin and that it was caused by the devil and by demons. And in part to punish the devil and the demons that were causing crime, very harsh punishments were used. At the time when Beccaria came along, the era of Enlightenment was in full swing, and scientists were starting to challenge the old views, but the people who had political power were not ready to leave those old ideas behind yet.

Beccaria didn’t start out as an intellectual. In fact, he wasn’t considered to be above average or interested really when it came to science or philosophy. But after he completed his law studies at the University of Pavia, he started to surround himself with a group of young men who were interested in all kinds of philosophical issues and social problems. And the intellectual discussions that Beccaria was able to have with these people led him to question many of the practices that were common in his time, including the way in which offenders were being punished for their crimes.

Publication of Beccaria’s “On Crimes and Punishments”

Beccaria’s famous work, “On Crimes and Punishments,” was published in 1764, when he was 26 years old. His essay called out the barbaric and arbitrary ways in which the criminal justice system operated. Sentences were very harsh, torture was common, there was a lot of corruption, there were secret accusations and secret trials, and there was a lot of arbitrariness in the way in which sentences were imposed. There was no such thing as equality before the law. And powerful people of high status were treated very differently from people who were poor and who did not have a lot of status.

Beccaria’s ideas clashed dramatically with these practices. And I’ll go through some of the central principles that his work is based on.

Only the Law Can Prescribe Punishment

According to Beccaria, only the law can prescribe punishment. It is up to the legislator to define crime and to prescribe which punishment should be imposed. It is not up to a magistrate or a judge to impose a penalty if the legislator has not prescribed it. And neither is it up to a judge to change what the law says about how a crime should be punished. The judge should do exactly what the law says.

The Law Applies Equally to All People

In addition, Beccaria said that the law applies equally to all people. And so punishment should be the same for all people, regardless of their power and status.

Making the Law and Law Enforcement Public

Beccaria also believed in the power of making the law and law enforcement public. More specifically, laws should be published so that people actually know about them, and trials should be public, too. Only then can onlookers judge if the trial is fair.

Beccaria: Punishments Should be Proportional, Certain, and Swift

Regarding severe punishment, Beccaria said that if severe punishments do not prevent crime, they should not be used. Instead, punishments should be proportional to the harm that the crime has caused. According to Beccaria, the aim of punishment is not to cause pain to the offender, but to prevent them from doing it again and to prevent other people from committing crime. In order to be able to do that, Beccaria believed that punishment should be certain and swift. He believed that if offenders were sure that they would be punished and if punishment would come as quickly as possible after the offense, that this would have the largest chance of preventing crime.

Beccaria Argued Against the Death Penalty

As another controversial issue, Beccaria argued against the death penalty. In his view, the state does not have the right to repay violence with more violence. And in addition to that, Beccaria believed that the death penalty was useless. The death penalty is momentary, it is not lasting and therefore the death penalty cannot be very successful in preventing crimes. Instead, lasting punishments, such as life imprisonment, would be more successful in preventing crimes, because potential offenders will find this a much more miserable condition than the death penalty.

No Right To Torture

Similarly, according to Cesare Beccaria, the state does not have the right to torture. Because no one is guilty until he or she is found guilty, no one has the right to punish a person by torturing him or her. Plus, people who are under torture will want the torture to stop and might therefore make false claims, including that they committed a crime they did not commit. So torture is also ineffective.

The Power of Education

Instead of torture and severe penalties, Beccaria believed that education is the most certain method of preventing crime.

Beccaria: Controversy and Success

Beccaria’s ideas are hardly controversial today, but they caused a lot of controversy at the time, because they were an attack on the entire criminal justice system. Beccaria initially published his essay anonymously, because he didn’t necessarily consider it to be a great idea to publish such radical ideas. And this idea was partly confirmed when the book was put on the black list of the Catholic Church for a full 200 years.

But even though his ideas were controversial back then, his essay became an immediate success. In fact, Cesare Beccaria’s ideas became the basis for all modern criminal justice systems and there is some evidence that his essay influenced the American and French revolutions which happened not long after the publication of the essay. His ideas were not original, because others had also proposed them, but Beccaria was the first one to present them in a consistent way. Many people were ready for the changes that he proposed, which is why his essay was such a success.

Beccaria ends his essay with what can be seen as a kind of summary of his view:

“So that any punishment be not an act of violence of one or of many against another, it is essential that it be public, prompt, necessary, minimal in severity as possible under given circumstances, proportional to the crime, and prescribed by the laws.”

You can find Cesare Beccaria’s full essay “On Crimes and Punishments” here .

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The first amendment, historic document, on crimes and punishments (1764).

Cesare Bonesana di Beccaria | 1764

Cesare Bonesana di Beccaria, marquis of Gualdasco and Villaregio (1738-94), was the author of On Crimes and Punishments (1764). Inspired by the discussion of criminal law in Montesquieu’s Spirit of the Laws , this Milanese wrote a systematic treatise on the subject that was almost immediately translated into English and French. In it, he argued that the sole purpose of punishment is deterrence, and he denounced torture, the entertainment of secret accusations, and the death penalty; suggested that pre-trial detention can rarely be justified; and called for promptitude in punishment. The impact of his little book on the post-revolutionary revisal of the laws in the various nascent American states was considerable.

Selected by

Professor of History and Charles O. Lee and Louise K. Lee Chair in the Western Heritage at Hillsdale College

Jeffrey Rosen

President and CEO, National Constitution Center

Colleen A. Sheehan

Professor of Politics at the Arizona State University School of Civic and Economic Thought and Leadership

Chapter 1: Of the Origin of Punishment

Laws are the conditions under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it to enjoy the rest in peace and security. . . .

Chapter 2: Of the Right to Punish

Every punishment which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general, thus. Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical. It is upon this, then, that the sovereign’s right to punish crimes is founded; that is, upon the necessity of defending the public liberty, intrusted to his care, from the usurpation of individuals. . . .

No man ever gave up his liberty merely for the good of the public. Such a chimera exists only in romances. Every individual wishes, if possible, to be exempt from the compacts that bind the rest of mankind. . . .

Observe, that by justice I understand nothing more than that bond, which is necessary to keep the interest of individuals united; without which, men would return to the original state of barbarity. All punishments, which exceed the necessity of preserving this bond, are in their nature unjust.

Chapter 6: Of the Proportion between Crimes and Punishments

It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.

Chapter 12: Of the Intent of Punishments

From the foregoing considerations it is evident, that the intent of punishments is not to torment a sensible being, nor to undo a crime already committed. Is it possible that torments, and useless cruelty, the instruments of furious fanaticism, or of impotency of tyrants, can be authorized by a political body? which, so far from being influenced by passion, should be the cool moderator of the passions of individuals. Can the groans of a tortured wretch recal the time past, or reverse the crime he has committed? The end of punishment, therefore, is no other, than to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

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An Essay on Crimes and Punishments

Anonymous 1767 English translation of Dei delitti e delle pene (1764). Foundational text of modern criminology. Famous for the Marquis Beccaria's arguments against torture and capital punishment. Warning: template has been deprecated.

PUNISHMENTS,

TRANSLATED FROM THE ITALIAN;

COMMENTARY,

ATTRIBUTED TO

Mons. De VOLTAIRE,

TRANSLATED FROM THE FRENCH.

THE FOURTH EDITION

Printed for F. Newbery, at the Corner of St. Paul's Church-Yard.

• Preface of the Translator

• Criminology
• Works originally in Italian
• Pages containing deprecated templates/Wikipediaref
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An Essay on Crimes and Punishments

By cesare beccaria.

A shy and retiring man prone to unpredictable moods and educated in the law as well as economics, [1] Cesare Beccaria (1738 – 1794) was perhaps an unlikely figure to trigger a veritable revolution in criminology. As a young man, he fell in with brothers Pietro and Alessandro Verri and their “academy of fists,” [2] a Milanese organization referred to variously as an “intellectual circle” [3] and a “literary society,” [4] through which Beccaria was initiated into Enlightenment thought. [5] The Verri brothers supplied the assignment and the insider knowledge of the criminal justice system of the day, and at the behest of this group, Becarria completed his famous essay On Crimes and Punishments in 1764. [6]

In the time of its writing, Beccaria’s propositions that onerous punishments like torture and execution were unnecessarily cruel, disproportionate, and unlikely to serve as effective deterrents were novel. Although they owed a debt to his intellectual forebears, [7] these ideas were both radical and attractive to the European political and intellectual elite. [8] On Crimes and Punishments was rapidly translated into a host of other languages. [9] As well as informing a number of state statutes in the United States, [10] in insisting upon a balance between fidelity to the social contract and the need to ensure that criminal punishment is useful and beneficial to society, the work can be said to prefigure one of today’s two dominant schools of penological thought—utilitarianism—as well as the death penalty abolition movement. [11]

Evidence for Inclusion in Wythe's Library

Dean's Memo [12] includes the 1767 English edition of An Essay on Crimes and Punishments based on a reference in William Clarkin's biography of Wythe. In discussing Thomas Jefferson's education under Wythe, Clarkin states "[w]e do know that Jefferson studied ... Beccaria's Crime and Punishment " but Clarkin provides no source of corroborating evidence. [13] Brown's Bibliography [14] lists Beccaria's work in a choice of three languages (Italian, French, and English) and multiple editions. The Wolf Law Library purchased the first English edition as listed in Dean's memo.

Description of the Wolf Law Library's copy

Marbled boards with leather corners rebacked in period-style calf with blind tooling and red label to spine. Purchased from Meyer Boswell Books, Inc.

Images of the library's copy of this book are available on Flickr. View the record for this book in William & Mary's online catalog .

• An Essay on Crimes and Punishments (7MB PDF)
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• ↑ Encyclopædia Britannica Online , s.v. " Cesare Beccaria ," accessed October 10, 2013.
• ↑ Internet Encyclopedia of Philosophy , s.v. " Cesare Beccaria (1738-1794) ," accessed October 10, 2013.
• ↑ Encyclopædia Britannica Online , s.v. "Cesare Beccaria."
• ↑ Internet Encyclopedia of Philosophy , s.v. "Cesare Beccaria (1738-1794)."
• ↑ Internet Encyclopedia of Philosophy , s.v. "Cesare Beccaria (1738-1794)".
• ↑ Memorandum from Barbara C. Dean , Colonial Williamsburg Found., to Mrs. Stiverson, Colonial Williamsburg Found. (June 16, 1975), 9 (on file at Wolf Law Library, College of William & Mary).
• ↑ William Clarkin, Serene Patriot: A Life of George Wythe (Albany, New York: Alan Publications, 1970), 42.
• ↑ Bennie Brown, "The Library of George Wythe of Williamsburg and Richmond," (unpublished manuscript, May, 2012) Microsoft Word file. Earlier edition available at: https://digitalarchive.wm.edu/handle/10288/13433 .

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Beccaria ‘s of Crimes and Punishment

This essay about Cesare Beccaria’s “Of Crimes and Punishments” explores the foundational principles of modern criminology and justice reform. Beccaria’s work challenges antiquated notions of punishment, advocating for rationality, proportionality, and humanity in the administration of justice. He emphasizes the importance of deterrence, swift punishment, and the abolition of cruel practices like torture and capital punishment. Beccaria’s ideas have had a profound influence on legal systems worldwide, shaping policies aimed at promoting fairness, equality, and the rehabilitation of offenders.

How it works

Cesare Beccaria’s treatise “Of Crimes and Punishments” holds a venerable position in the annals of criminology, serving as a beacon of enlightenment amidst the shadows of antiquated justice systems. Penned during the intellectual ferment of the 18th century Enlightenment, Beccaria’s work represents a clarion call for rationality and humanity in the realm of law and punishment.

At the heart of Beccaria’s discourse lies a cogent argument for the principle of proportionality between crime and punishment. In decrying the arbitrary and excessive penalties of his era, Beccaria advocates for a paradigm shift towards a justice system that aligns punishment with the gravity of the offense committed.

He posits the notion of utility as a guiding principle, asserting that the ultimate aim of punishment should be the optimization of societal well-being and the prevention of future transgressions.

Central to Beccaria’s thesis is the concept of deterrence, wherein the certainty and celerity of punishment are deemed more efficacious than its severity alone. By swiftly and consistently meting out consequences for unlawful behavior, Beccaria contends that society can dissuade individuals from engaging in criminal acts, thus fostering a climate of order and security.

Moreover, Beccaria champions the abolition of barbaric practices such as torture and capital punishment, recognizing their inherent moral repugnance and ineffectiveness as deterrents. He argues for the implementation of alternative sanctions that prioritize rehabilitation and societal reintegration over vengeance and retribution.

In addition to his prescriptions for punishment, Beccaria advances a vision of justice rooted in principles of equality and due process. He emphasizes the imperative of impartiality and transparency in legal proceedings, advocating for the equal treatment of all individuals before the law, irrespective of their social standing or background.

Beccaria’s treatise stands as a testament to the enduring power of ideas in shaping the trajectory of human civilization. His call for rationality, proportionality, and humanity in the administration of justice continues to reverberate through the corridors of legal scholarship and policymaking, inspiring generations of reformers to strive for a more equitable and compassionate society. In a world beset by the perennial struggle between order and liberty, Beccaria’s legacy serves as a guiding light, illuminating the path towards a more just and enlightened future

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Crime and Punishment

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The Fyodor Dostoyevsky Complete Collection: The Brothers Karamazov; Crime and Punishment; The Idiot; Notes from the Underground; The Demons; Novellas; Complete Short Stories; Essays; and Letters (Unabridged‪)‬

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This audiobook, read by a cast of Audie award-winning narrators, includes unabridged recordings of Fyodor Dostoyevsky’s most significant works: 15 novels, 18 novellas and short stories, a study of Dostoyevsky by Virginia Woolf, and two books of non-fiction: his letters and European travel journal. Translations by Constance Garnett. This audiobook is fully indexed. Once downloaded, each title and chapter will be listed so you can easily navigate to the individual section. You can also view a breakdown of the titles and tracks below. Novels Track 2-99: The Brothers Karamazov Track 100-288: The Adolescent Track 289-332: Demons Track 333-350: The Permanent Husband Track 351-401: The Idiot Track 402-419: The Gambler Track 420-461: Crime and Punishment Track 462-483: Notes From the Underground Track 484-506: The House of the Dead Track 507-551: The Village of Stepanchikovo Track 552-570: Uncle’s Dream Track 571-586: Netochka Nezvanova Track 598-611: The Double Track 612-664: Poor Folk Short Stories and Novellas Track 665-671: The Landlady Track 672-674: Mr Prohartchin Track 675-679: The Little Orphan Track 680-689: A Novel in Nine Letters Track 690-692: Another Man’s Heart Track 693-695: A Faint Heart Track 696-697: An Honest Thief Track 698-699: The Christmas Tree and the Wedding Track 700-705: White Nights Track 706-708: A Little Hero Track 709-710: Polzunkov Track 711-714: An Unpleasant Predicament Track 715-719: The Crocodile Track 720-721: Bobok Track 722-723: The Peasant Marey Track 724-725: The Heavenly Christmas Tree Track 726-736: A Gentle Spirit Track 737-742: The Dream of a Ridiculous Man Non-Fiction Track 743-754: Winter Notes on Summer Impressions Track 755-834: Selected Letters Track 835-843: Recollections Track 844: The Pushkin Speech Track 845-849: Virginia Woolf on Dostoyevsky Fyodor Dostoyevsky was a Russian novelist, journalist, and short-story writer who had an immense influence on 20th-century fiction. He is commonly regarded as one of the finest novelists who ever lived, penning classics that include: Crime and Punishment , The Idiot , Demons , and The Brothers Karamazov . His ideas profoundly shaped literary modernism, existentialism, and various schools of psychology, theology, and literary criticism.

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Crime and Punishment Progressive vs. Law-and-Order Prosecutors

In a justice system where safety is paramount, the debate between progressive prosecutors and their law-and-order counterparts rages on. With divergent approaches to crime, each camp champions its ideology, leaving the public caught in the crossfire. But what policies truly reduce crime?

The public wants to be and feel safe. One group has elected progressive prosecutors emphasizing diversion over incarceration, diminishing penalties, and decriminalizing crimes. Other groups have elected more traditional “law-and-order” prosecutors focusing on swift and harsh punishment. A recent study in Criminology and Public Policy looked at how progressive prosecutors “shaped” crime.

What policies reduce crime?

Short answer: we do not know. But progressive vs. law-and-order prosecution suggests at least two separate theories.

Deterrence – swift, sure, and severe punishment shapes “the choice calculation of potential offenders,” reducing future offenses and overall crime. A corollary belief, incapacitation, results in offenders being incarcerated (incapacitated) for more extended periods, keeping streets safer longer. These law-and-order advocates criticize progressive prosecution for sending the wrong message: to criminals, that their offenses will be lenient or they will experience less incapacitation, and to police who will be “demoralized” by the inaction of prosecutors for their efforts at enforcement and arrest.

“Traditional prosecution breaks the people it should protect.”   - Philadelphia District Attorney Larry Krasner

Coercive Mobility – high levels of incarceration and incapacitation “disrupt informal systems responsible for community social organization and stability.” The disruption of family, local economy, and civic participation fuels higher crime rates. Alternatives to incarceration should mitigate its harmful effects and lower crime. Progressive prosecutors also point to clear disparities associated with race and income (caste) in the apprehension of offenders and their subsequent punishment, aligning their theory with the goals of social justice.

A third prominent theory of crime, “the broken-window theory ,” comes from a widely quoted and misunderstood article on policing, “ Broken Windows . It has led to zero tolerance for panhandling and New York’s “stop and frisk.” But its original goal was fixing the environment rather than pursuing the one who threw the rock. According to this belief, more aligned with progressive prosecution than law-and-order, the impact of prosecution on crime is overstated, and structural forces, “poverty, concentrated disadvantage, residential instability, community demographics are more proximate causes of crime.”

The research sought to understand the impact, if any, of progressive prosecutors in “the nation’s 100 most populous counties” between 2000 and 2020.

In setting charging and plea policies, progressive prosecutors determine the shape of criminal justice. To generalize, this includes

• Increase the use of diversion, especially for those with mental illness or addiction issues.
• Decriminalize low-level drug possession, de-felonize property crimes by raising the dollar threshold for felony offenses, and rely less on prison for parole violations.
• Minimize harsh sentencing.
• Remove “poverty traps” by reducing court fines and cash bail
• Bolster system integrity with conviction review, broadened discovery, and prosecuting police misconduct.
• Track their performance with data tracking systems.

Prosecutors meeting six of these characteristics [1] were considered progressive. Sensitivity analysis showed that broadening or restricting the definition of progressive prosecutor did not impact the study’s results. Progressive prosecutors were identified based on criteria found in both the media and academic publications. By looking at the most populous counties in the US, the researchers identified the top 100 with progressive prosecutors from 2000 to 2020. Crime data came from the FBI’s national Uniform Crime Reporting (UCR) and focused on violent crime, property crime, and total index crime rates per 100,000 at the county level, which was a closer match to the area influenced by a given prosecutor.

To estimate the effect of the new progressive prosecutors, the researchers applied difference-in-difference changes in crime rates in the 100 counties of interest compared to similar counties with law-and-order prosecutors. [2]

“Our results show that, relative to jurisdictions that had maintained traditional chief prosecutors, jurisdictions that changed to progressive prosecutors had 7% higher total index crime rates (driven by higher property crime rates), and these effects are strongest from 2013 to 2020. In contrast, violent crime rates were not statistically higher in jurisdictions switching to progressive prosecutors over the entire study period but did experience statistically higher violent crime rates from 2014 to 2016.”

For those in a hurry, counties with progressive prosecutors experienced more property-related crime but no change in violent crime. But there are other insights to be found.

• 70% of jurisdictions have had progressive prosecutors since 2010 -  “progressive prosecutors are not a new phenomenon.”
• Counties electing progressive prosecutors did not differ from law-and-order counties on “percentages of residents who were male, Hispanic (of any race), aged 15 to 29, foreign-born, on public assistance, and living in poverty.” They did not differ in median income or home value but did have greater population density and percentages of “non-White” residents. Interestingly, they had higher rates of violent crime before progressive prosecutors were elected.

• There is no clear evidence that being soft or hard on crime resulted in significant differences in that downward trend.
• Counties with progressive prosecutors saw a 6.98% relative increase in property crimes; however, they had “no reliable effect on violent crime.”

Returning to the three theories of crime and punishment, the researchers conclude that the data “are most consistent with deterrence theory.” They point out that violent crime is more frequently situation-dependent and that a criminal risk-benefit analysis plays no role. In comparison, non-violent crime may be planned, and some calculus involving lenient or severe punishment is considered.

The study comes with the usual caveats about extrapolation to different-sized populations, the definitions employed, specifically what a progressive prosecutor is, and missing crime data. The weakest link lies in the definition, “…as our coding scheme focuses on stated prosecution policies, not actual practice ... we recognize some policy slippage may exist…” [emphasis added]

From a quantifiable view, progressive prosecutors have not fully realized their goal of decreasing crime. Some would argue that it failed completely. But for those of us who live in these counties and are not policymakers, the question is not really about those quantified findings – whether we are indeed “safer.” The question is whether we “ feel ” safer.

The daily drumbeat across the media of murders and mayhem contributes to our perception. Rarely does the media discuss property crime, except perhaps in the trend towards “flash mob” theft from luxury goods stores or the robbery that turns into a mugging or murder. As a result, we may not believe the numbers. Our policies on criminal enforcement should not be captive to the numbers or our feelings. The current media debate about soft-on-crime prosecutors and cash-less bail would be better served if we balanced our fears with facts – including this study's findings.

[1] Characteristics of Progressive Prosecutors included self-proclamation, “smart” data collection and tracking, reductions in mass incarceration, removal of poverty traps (bail), alternatives to criminal intervention, decriminalization of youthful offenders, reduction in harsh penalties, reduction in racial and other disparities and increasing system integrity which would include prosecuting police misconduct, broadening discovery and expanding and sealing of records.

[2] Difference-in-difference analysis requires several assumptions. The requirement that a progressive prosecutor was present throughout the period studied was met, as was the need for consistent crime data. The parallel downward trend for all crimes in all jurisdictions to decrease strongly suggests that the final two required assumptions, that there was limited anticipation of change, “no causal effect before its implementation,” and that “counties eventually treated [with a progressive prosecutor] would have had similar crime trends if not for exposure to the treatment” were met.

Source: Do Progressive Prosecutors Increase Crime? A Quasi-Experimental Analysis of Crime

Rates in the 100 Largest Counties, 2000-2020 Criminology& Public Policy DOI: 10.1111/1745-9133.12666

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By Chuck Dinerstein, MD, MBA

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Dr. Charles Dinerstein, M.D., MBA, FACS is Director of Medicine at the American Council on Science and Health. He has over 25 years of experience as a vascular surgeon.

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Guest Essay

I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake.

By Jed Handelsman Shugerman

Mr. Shugerman is a law professor at Boston University.

About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.

After listening to Monday’s opening statement by prosecutors, I still think the district attorney has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

To recap: Mr. Trump is accused in the case of falsifying business records. Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg and his team have pointed to potential violations of federal election law and state tax fraud. They also cite state election law, but state statutory definitions of “public office” seem to limit those statutes to state and local races.

Both the misdemeanor and felony charges require that the defendant made the false record with “intent to defraud.” A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and that only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. He may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan district attorney’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case , in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check: It is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed , “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed , “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

In stretching jurisdiction and trying a federal crime in state court, the Manhattan district attorney is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The district attorney responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, the prosecutors could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

Mr. Trump’s legal team also undercut itself for its decisions in the past year: His lawyers essentially put all of their eggs in the meritless basket of seeking to move the trial to federal court, instead of seeking a federal injunction to stop the trial entirely. If they had raised the issues of selective or vindictive prosecution and a mix of jurisdictional, pre-emption and constitutional claims, they could have delayed the trial past Election Day, even if they lost at each federal stage.

Another reason a federal crime has wound up in state court is that President Biden’s Justice Department bent over backward not to reopen this valid case or appoint a special counsel. Mr. Trump has tried to blame Mr. Biden for this prosecution as the real “election interference.” The Biden administration’s extra restraint belies this allegation and deserves more credit.

Eight years after the alleged crime itself, it is reasonable to ask if this is more about Manhattan politics than New York law. This case should serve as a cautionary tale about broader prosecutorial abuses in America — and promote bipartisan reforms of our partisan prosecutorial system.

Nevertheless, prosecutors should have some latitude to develop their case during trial, and maybe they will be more careful and precise about the underlying crime, fraud and the jurisdictional questions. Mr. Trump has received sufficient notice of the charges, and he can raise his arguments on appeal. One important principle of “ our Federalism ,” in the Supreme Court’s terms, is abstention , that federal courts should generally allow state trials to proceed first and wait to hear challenges later.

This case is still an embarrassment, in terms of prosecutorial ethics and apparent selectivity. Nevertheless, each side should have its day in court. If convicted, Mr. Trump can fight many other days — and perhaps win — in appellate courts. But if Monday’s opening is a preview of exaggerated allegations, imprecise legal theories and persistently unaddressed problems, the prosecutors might not win a conviction at all.

Jed Handelsman Shugerman (@jedshug) is a law professor at Boston University.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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