Dr Leo Zaibert: On Punishment and Forgiveness

Dr Leo Zaibert joined the Institute of Criminology at the University of Cambridge back in 2022 as the Andreas Von Hirsch Professor of Penal Theory and Ethics. He holds a law degree from Universidad Santa María, Venezuela, and a PhD from the State University of New York in Buffalo. Before coming to Cambridge, he was a professor at Union College in the US. Dr Zaibert is the author of several books on the ethics of punishment and has been a visiting scholar and fellow at various universities around the world, including the Universities of Geneva, Leipzig, Oxford, and Toronto. 

In this interview with Emma J. B. Sunesen, Dr Zaibert talks about the ethics and philosophy of punishment, value pluralism and mixed justifications, free will in the context of crime, and about how retributivism should primarily be conceptualised as an axiological theory. 

What led you to pursue a career in academia? And what drew you to the study of criminology and the philosophy of punishment?  

I was interested in philosophy all my life and wanted to be a philosopher in Venezuela where I was born, but the prospect of becoming a philosopher seemed too terrifying. So, instead I choose to go to law school, which was the default for many people. And in my case, it had the additional attraction that my dad, aunt, and brother all were lawyers. Whilst in law school I became very interested in criminal law and perplexed by the general theme of our response to wrongdoing. Following school, I practiced law for a short time, but disliked it, and therefore ended up transferring for a PhD programme in the US. There I got to work on law topics related to philosophy, such as philosophy of punishment. So, in a way, life caught up with me and I ended up doing philosophy, which is what I had initially deemed too risky. Recently, a position was created in Cambridge for someone specialising in penal theory and ethics, so I applied and got the job. The institute in Cambridge is extraordinary. It’s a really good place to be and my colleagues are very accomplished and interesting. 

“I am convinced that there is a plurality of values, and sometimes these values defeat the value of inflicting deserved suffering. Sometimes there is more value in forgiving a person rather than in punishing them.”

You are a proponent of retributivism, which you define in simple terms as “(…) the view that deserved punishment is intrinsically good” (2012, 96). Punishing offenders is good because it’s deserved and brings about justice, and not only because of its instrumental value, as in utilitarianism (such as reduction in crime, rehabilitation, prevention of harm etc). Even if retributivism has experienced a revival, it seems as if utilitarianism is generally the more endorsed theory in criminology. And as you mention yourself, some has gone as far as to call retributivism ‘barbaric’. So, I wonder what attracted you to retributivism? 

What attracted me to retributivism is that it is the approach that seems to take justice most seriously. In essence, it postulates that it is good for people get what they deserve. Let us say that you win the award for the best interview conducted in Cambridge and you truly deserve it, then that produces joy directly connected to the fact that you got what you deserved. That is a notion of ‘deserved’ that doesn’t seem problematic to almost anyone. The counterpart example is then that you did something very bad⎯you robbed a bank, for example, and you are deserving of punishment. If I wanted to be present to celebrate your punishment, there’s something disturbing about this desire to witness your suffering. Yet, there is nothing – in my opinion – strange or scary about wanting for justice to be served. If people do something very bad, there is some value in them getting the suffering they deserve. This realisation in no way denies that there is also value in a variety of consequentialist considerations. It would be nice if people were rehabilitated, deterred, incapacitated, and so on⎯what Michael Moore refers to as ‘happy surpluses.’ The retributivist is not necessarily a fool nor blind, but if these positive consequences happen, they will simply be icing on the cake. There is something undeniable about the fundamental importance that ‘deserved’ has in the justification of punishment. 

The reason why retributivism is taken to be barbaric is because some versions (not too many contemporary ones) assume that deserved punishment should be inflicted no matter what. My version of retributivism is linked to my value pluralism. So, in contrast, I am convinced that there is a plurality of values, and sometimes these values defeat the value of inflicting deserved suffering. Sometimes there is more value in forgiving a person rather than in punishing them. This however creates a paradox. Forgiveness as a matter of logic presupposes that you believe in deserved suffering, because you can only forgive that which you think deserves punishment. For example, if a person robbed a bank because it was the only way he could support his family, and upon learning these extenuating circumstances you decide not to punish, I would not claim that this is forgiveness. There are many things that can look like forgiveness, which are actually justifications, excuses or mitigating circumstances. Conceptually speaking, the only case of forgiveness is when you believe someone deserves punishment, but you refrain from inflicting it. And so, in an odd way, retributivism is more humane than consequentialism because it permits forgiveness. From a consequentialist perspective, forgiveness is necessarily inappropriate, because the only reason punishment would have been justified is if it had better consequences. And if punishment has better consequences than any alternative, then not inflicting it means not bringing about the best possible state of affairs, which is anathema to the classical utilitarian worldview. So yes, I was attracted to retributivism because it seems sincere. The fact that I find value in deserved suffering does not commit me to realise that value come what may. 

The retributivist framework can strike me as somewhat individualising the causes of crime because it depends so heavily on the concept of free will. Rather than looking at criminal behaviour as the result of structural issues, it makes it an issue of individual choice. Without being overly deterministic, isn’t there a case for saying that punishment can be undeserved because the very cause of criminal behaviour stem from deeper social causes than just individual choice? –– Take your example: the only reason I win the award for the best interview is because I’ve had parents who were extremely good to me, got me into good schools, paid for mentoring, and so on, and that’s why I’ve ended up getting the price. And the opposite can be true for punishment. 

Well, that is a profound and very important question. I am actually organising a workshop in December here in Cambridge which will be thinking about how governments through policies of exclusion or discrimination may be required to mitigate sentences for criminals from discriminated groups. I am very attracted to that possibility and this line of thinking can be completely in line with retributivism. It is possible that two persons who commit seemingly identical crimes deserve different punishments, given their backgrounds. Context matters – and within penal theory, no one can accept a richer context than the retributivist.

And you are right to identify there’s an irreducible element of agency in the assumption that individual merit exists. This seems undeniable to me. Even if your parents have been incredibly supportive, and you have had a very fortunate upbringing, it was you who conducted the interview. So, obviously not everything is the result of environment. Still, your upbringing would affect the interview in some way. So how do we deal with cases in which upbringing explain quite a bit of wrongdoing? These issues are not typically built into the enumerated defences in the criminal law, the typical excuses and justifications. Imagine a set of twins who grew up in a precarious neighbourhood in a broken family, one goes on to become a Nobel Prize Winner and the other a criminal. There is obviously an element of individuality here. However, recognising this individuality is consistent with simultaneously recognising the obvious limits to individual choice. There is an interplay between our individual agency and our surroundings: both are real.

There’s a notion by one of my favourite philosophers, Bernard Williams, ‘moral luck’. In a sense, the expression should convey the idea of a contradiction. Obviously, there should be no luck in morality: if you’re a decent person, then luck should play no role. But it still does. In some cases, some of our behaviour might be influenced by things that are completely out of our control and for which we cannot take credit. In other words, and paradoxically, even ethics can be affected by luck. As an example: I was born in Venezuela, where corruption was rampant. You couldn’t purchase a cup of coffee without a bribe, and so you couldn’t go on living without engaging in corruption. But then I left for the US and later Cambridge and became a philosopher, and I never again engaged in corruption. Yet, it would be naïve for me to take credit for my current non-corrupt behaviour because here and now I simply have no opportunity (let alone the need) to be corrupt. At the same time, one may argue that I chose to leave Venezuela to pursue a career in the US and later in the UK, and so there’s still some degree of individual agency and not simply luck. While the complete and excessive evaporation of individual agency is not attractive, neither is the complete and excessive evaporation of environmental influence. The question is how much weight we choose to give to each explanation. As always, the devil is in the details.   

“It is possible that two persons who commit seemingly identical crimes deserve different punishments, given their backgrounds. Context matters – and within penal theory, no one can accept a richer context than the retributivist.”

In your book ‘Rethinking Punishment’ you reconceptualise the debate between retributivism and utilitarianism/consequentialism, saying it’s really a debate between monism and pluralism. What does it mean to embrace value pluralism and how is it different from the mixed justifications we find in Hart, Quinton and Rawls?  

I recently wrote a piece called ‘Rethinking Mixed Justifications” upon a request to write an essay arguing against mixed justifications. And I begin by saying that's a peculiar task for me because I'm sympathetic to mixed justifications and wish they would succeed. But I don't think that they succeed: theorists have underestimated how difficult it is to “mix” retributivism and consequentialism. I’ll use Quinton as an example because he is the most graphically representable defender of a mixed justification. He argues that there’s no dispute between retributivism and consequentialism because the retributivists simply insist – as a logical, or semantic matter – that punishment is of the guilty. That is just what punishment means. Once that logical point is met then how the sentencing is structured and executed is consequentialist in nature. So, there is no disagreement! And there is all the mixing we need too. I find this remarkably uninspiring because no retributivist worth her salt would agree to this depiction of retributivism. She would insist that she is making not a logical or semantic point, but a moral one. The retributivist position is that we are morally justified in giving people the suffering they deserve. Saying that punishing someone who is innocent is not punishment may be correct, but that’s not retributivism. Quinton therefore reduces retributivism to a caricature. 

Here’s an aspect of the underestimated complexity. If you’re a consequentialist you justify punishment when its consequences are better than not punishing. From this standpoint punishment is in itself bad, but you tolerate it as a means to an end. This is very different from the retributivist justification: if you’re a retributivist, you do not merely tolerate punishment – you believe there’s actual good created by punishing the deserving. So, in the book ‘Rethinking Punishment’ I unearth an expression that Leibniz used to refer to consequentialist justifications in a pejoratively manner. He calls them ‘medicinal’. What he means by that expression is that consequentialist theorists think of punishment as medicine. Much like you endure the pain of a vaccination shot because the consequence of not doing that are worse, so consequentialists view punishment as better than the consequence of not inflicting it. Put differently, the potential consequences that we’re trying to avoid are worse than the preventive act itself (say punishment or the pain of a vaccine shot). This line of thinking means that consequentialists would reject punishment if they could achieve the good consequences without it. In contrast, the retributivist doesn’t think in medicinal terms, the retributivist believes there’s something intrinsically good about the wrongdoer getting the punishment he deserves. The philosopher Victor Tadros has raised a stylised thought experiment that beautifully illustrate the theoretical distinction:

Say Hitler has ended up on a desolated island with no means to escape or communicate with the outside world and you have the ability to press a button that will ensure he has horrible weather every single day. Will you press that button? I would say yes to add that additional suffering, but many of my consequentialist colleagues wouldn’t. For them, there is no learning point in adding that additional suffering. You’re not going to deter or rehabilitate anyone by inflicting it and it’s therefore considered pointless. 

The retributivist would give Hitler bad weather in this example, and this is because she countenances the value of deserved suffering. So, she is in a position to be a much more robust value pluralist than the consequentialist. Admittedly, this robust form of value pluralism is very complicated in that there are difficult conflicts amongst values. But at least she can recognise the existence of these conflicts.  

“In the case of retributivism, the goodness of punishing the deserving may stand in the way of creating a decent society or showing kindness to people. As an axiological retributivist, I am not committed to pursuing deserved punishment at all costs.”

You contend that retributivism should first and foremost be understood as an axiological theory as opposed to deontic, meaning that it concerns itself with the value of deserved punishment rather than being a moral imperative whereby all deserved punishment must be imposed (2018, 13-14). In fact, in the book you reject deontic versions of retributivism, such as Kant’s and Moore’s retributivism (2018, chapter 4). How can we endorse something in theory but reject it as an imperative in action? Shouldn’t we strive for holistic theories? 

One thing is to say that something is good or bad. Another is to say you ought to bring it about or not. The first is an axiological point and the second a deontic point. But, of course, when I state that “X is good, but I don’t wish to bring it about”, then I owe an explanation. In essence, my explanation has to do with value pluralism. In the case of retributivism, the goodness of punishing the deserving may stand in the way of creating a decent society or showing kindness to people. As an axiological retributivist, I am not committed to pursuing deserved punishment at all costs. 

There are many cases in which the gulf separating the axiological from the deontic is perfectly unproblematic, but there are cases in which it can raise significant questions. If X is good, then we have a good reason to bring it about – we have some sort of prima facie case for bringing X about. But this reason need not be a conclusive reason – it can, for example, be defeated by other reasons. 

While we should strive for holistic theories, sometime life is more complicated than that. There are plenty of actions that may generate good consequences that we should still never dream of performing. Something that is special about the criminal justice system is that it is other-regarding, i.e., it cares about the welfare of innocent people. That creates almost a duty to protect them. But some of its other objectives, such as the value of giving people what they deserve, may conflict with that. The Criminal Justice System is internally conflicted because it has so many goals that are often in tension with one another. And while the deontic and axiological may interact straightforwardly, sometimes they don’t – and that’s okay too. There’s plenty of instances in life where you may have several good reasons to act a certain way but abstain from it due to one single defeating reason. 

“The retributivist is in no way committed to such a punitive attitude as we are witnessing in the US.”

‘What works’ is often taken to be the utilitarian ethos at play in criminal legalisation. What is the retributivist alternative? Some critiques argue that the retributivist logic of proportionality is often too vague to be of pragmatic use. 

If I look at the criminal justice system in the US, with which I am familiar because I’ve lived there for thirty years, then my main criticism is that it generates so much undeserved suffering. Of course, there are many other problems with it: it’s discriminatory, it’s unfair, it’s clumsy. But my main objection to the US Criminal Justice System is that it over-criminalises and over-punishes. How can someone possibly believe that someone deserves to be 30 years in prison – to have his entire life derailed – simply because he consumed a certain substance? It’s morally indefensible! If I commit a crime, then it is my community that is calling me to account and atone for my crimes. But this central idea of societal atonement is hard to take seriously when the criminal justice system is growing to a point where almost everything can be interpreted as criminal. When we over-criminalise people for petty matters then we do a disservice to society. There are plenty of things that society has an interest in controlling and regulating, including drug use and distribution. But why do we have to criminalise so much and over-punish to such an extent? The retributivist is in no way committed to such a punitive attitude as we are witnessing in the US. While, as a retributivist, I do believe there are some serious wrongs that call for particular punitive responses, such as rape and murder, for the large part I view it as wrong that the US prisons are mainly populated by non-violent criminals that are incarcerated for relatively minor offences. And I disagree with the disproportionate long sentences. A few years in prison to think about what you’ve done, should be enough. The criminal justice system should lead to growth in the wrongdoer and that growth involves reflecting on the wrongness of what that person did. But if a disproportionate number of things are deemed criminal, then the point of a moral redemption becomes elusive.  

I also believe that the retributivist logic of proportionality can be of pragmatic use. It’s not simply useful in theory only. Why? Well, because people do have an innate sense of proportionality. We know when our systems are disproportionate and aren’t serving the function of justice. If I were to make a minor traffic violation out of ignorance, and subsequently got sentenced to many years behind bars, then I’d know it was disproportionate sentencing. 

So, I just want to circle back to something you said. You mention that you believe prisons should allow people to reflect upon their wrongs, potentially resulting in desistance. However, there are several studies (1, 2, 3) that show that rehabilitative and ‘Out of Court Disposals’ actually have lower reoffending rates than imprisonment. How does that fit in with retributivism, given that it emphasises punishment, and rehabilitation may not be considered punishment in the traditional sense? 

The question is whether a restorative justice approach should take the place of a retributivist approach or whether they should work in tandem. While I have not fully settled my mind on this question, I am inclined to think they should work in tandem. However, I do take slight issue with restorative justice being called ‘justice’. Say someone steals something from you, and you agree to engage in a face-to-face conversation with the perpetrator, who apologises profoundly, and you may even end up forgiving him. While this reconciliation would be great, I am uncertain whether justice have truly been served and whether that word even belongs there. 

That said, there are many occasions where the restorative model would be very attractive in terms of social cohesion and reconciliation. And it may still result in the sort of punishment retributivists strive for. Coming face-to-face with your victim and realising the suffering you have caused could result in profound suffering for the offender. Michael Moore has this famous argument in favour of the death penalty. I am not in favour of it, but his example illustrates the point I am trying to make. In his example, a guy ends up killing his girlfriend with an axe while she’s sleeping, because he thought she’d been flirtatious with someone else earlier in the evening. The killer is imprisoned and then a few years later interviewed, where he argues that while he deeply regrets his actions, him being in prison any longer won’t bring back his girlfriend. He believes he has served his time. Moore goes on to argue that if he had been that guy, he would never have been able to forgive himself and would have ended his life instead of asking for parole. When I was in grad school, I thought Moore’s argument was a good argument for the death penalty. Now I don’t. The reason is that there’s a difference between the first- and third-person perspective. Even if the guy who murders his girlfriend ends up killing himself due to shame or regret, that does not commit us to saying that a third party, in effect the state, should kill him. But my larger point is that punishment should be able to provoke that sense of guilt, which the aforementioned offender did not possess. 

In this sense, the restorative justice approach could force wrongdoers to face the wrongness they’ve done. Evidence that I’ve read about some of these restorative episodes are very, very promising because there are breakthroughs and almost epiphanies for the offender. Here the offender actually gets to feel awful for the pain they’ve caused. That type of suffering – the shame and guilt – is good from a retributivist point of view. It aligns with the axiological worldview that I have. And I actually believe restorative justice works better – if not only – within a retributivist framework. Interestingly, the feeling of wrongness generated through these restorative justice approaches is something which the utilitarian could do without. Imagine we could have a pill that allows offenders to understand the wrongness of their behaviour without the affiliated suffering. The utilitarianists would happily welcome that pill. However, I don’t believe this is a realistic thought experiment because understanding that I have done something wrong – say betrayed a friend or the trust of a student – understanding that reality necessarily means suffering. You cannot, I think, separate the realisation of guilt from the associated pain. Understanding and suffering go, in this sort of case, hand in hand. Therefore, on a theoretical level retributivism is compatible with restorative justice, and that type of punishment may even work much better than simply locking people behind bars.

“(…) forgiveness by its very nature is not amenable to systematisation. The courts are supposed to be predictable, and judges should treat like cases alike. But if I show mercy to someone, I am not thereby committed to show it to everyone similarly situated. (…) I do believe that discretion is an unfortunate victim of the ethos of universal treatment that the Enlightenment enshrined in our worldviews.”

You have written extensively about the concept of mercy. How can we incorporate mercy into contemporary criminal systems? And would the systematisation of mercy necessarily lead to a utilitarian implementation through assessment policies and quantifiable comparisons? 

The first question is the 64,000-pound question, ha-ha! 

I use mercy and forgiveness interchangeably. The essence of mercy/forgiveness is that it’s not a duty. It’s what moral philosophers call supererogatory, which means to go over and beyond your duty. You cannot have a duty to be merciful, lest what you had to do would cease to be mercy. In essence, you show mercy when you freely and deliberately refuse – for some moral reason – to inflict deserved punishment, i.e., punishment that you would otherwise have been justified in giving. And right there, in this definition, you see how paradoxical the concept is. If you would have been justified in giving punishment to someone, why do you refrain from doing so? 

If you compare the most admirable instances of punishment and the most admirable instances of forgiveness. Clearly, the instances of forgiveness are much more admirable. There’s something elevated about a human’s ability to forgive. But often with my students, I have to resist their impulse to deem any instance of forgiveness admirable and fantastic. That’s not necessarily the case. Often enough people can be spineless and indifferent about things that they should care about. But whenever forgiveness is justified then it can be very moving. 

How to build that into the criminal justice system is extraordinarily difficult because forgiveness by its very nature is not amenable to systematisation. The courts are supposed to be predictable, and judges should treat like cases alike. But if I show mercy to someone, I am not thereby committed to show it to everyone similarly situated. However, I do think that we should be more open to the idea. I have an example from my time as a professor in the US: 

Here I believe that I was allowed as a professor to deviate from the core syllabus, whenever this could help the student. However, I could not deviate in order to harm a student. I once had a student who took a course with me and failed it. The following semester she took it again, but every single time she was in class she fell asleep. Therefore, I confronted her one day. It turns out she was a poor single mother who worked as a nurse and would show up to class straight after a 24-hour shift. So, of course she’d fall asleep during class. Then we had a test, where she ended up scoring the best out of all 200 students. I was so happy. As a final requirement the students had to turn in a 6-page essay, and she only managed a single page. For this, I could have failed her again despite her having the highest score on the exam. However, instead I chose to award her an A-minus (the second highest mark possible). When I tell this story to other students, they tend to get annoyed and say: “what about my problems? I’ve got problems too, give me an A-minus also”. But irrespective of whether I was right or wrong in this instance, I am certainly not obligated to treat the next person with a serious calamity in exactly the same way. Mercy simply resists systematisation. 

While I fully support the Enlightenment, I do believe that discretion is an unfortunate victim of the ethos of universal treatment that the Enlightenment enshrined in our worldviews. We could allow for greater discretion on the part of our judges and thereby enable them to extend forgiveness to offenders. Of course, we should guard against discrimination, so that judges don’t simply grant pardons to people of a certain origin. But I am not afraid of pursuing this line of thought. 

Do you have any recommendations for anyone considering going into academia? 

I think that the academic life is potentially a great life. As I told you earlier, I started out working as a lawyer. But I didn’t like it. So, I decided to leave that to become a philosopher. My father thought I was crazy and tried to talk me out of it. At some point we’re having a discussion, and he found what he believed to be a crucial point that will show me the absurdity of my decision. He asked me: “Do you then intend to be a student forever?” I thought for a few seconds, and then said ‘yes’. 

Sometimes I feel almost guilty for being paid for doing what I do, because I enjoy it so much. For those who value the life of the mind, who have intellectual curiosity and intellectual ambitions, then the academic life can be extremely rewarding. The one thing I dislike about University of Cambridge is that there is a mandatory retirement age, ha-ha, because I never want to stop doing what I am doing. Sometimes, I have been under the weather and have considered cancelling a lecture; almost invariably, I end up pulling myself by the bootstraps and go lecture anyway. And as soon as I am in the classroom, I immediately feel better. That is such a great indication that you’re in the right field. 

One of the most difficult aspects of working in academia was actually the process of finding my own voice as a thinker. The expression “finding your own voice” can sound a little wishy-washy. But finding your voice simply goes hand in hand with following your passion. For me it has been essential to stay true to what I want to say and even before I came to Cambridge, I was happy because I was saying what I wanted to say. Whether I am right or wrong is a whole other discussion. Of course, you have to be practical, and you may make some concessions, but you should never sell out. I would recommend people to do that – to stay true to their passions – and to find their own voice. Students have this sixth sense about whether a teacher cares about what they teach or not, and when they know you care, they get excited with you. 

While I was intimidated when I went to interview to my position at Cambridge, there was also a sense in which I wasn’t nervous at all. Because I was at a point in my life, where I knew completely who I was as a person and as a scholar. I was not even minimally tempted to fake anything. I came and showed who I was, because the only way in which it was worth it for me to move here was if they wanted me for what I am.