Leo Zaibert, the Andreas Von Hirsch Professor of Penal Theory and Ethics at the Institute of Criminology, has co-edited a new anthology on sentence mitigation.
The book, titled ‘Responding to the Culpable State: Is Sentence Mitigation Appropriate?’, was produced in collaboration with Professors Julian Roberts from The University of Oxford, and Jesper Ryberg from Roskilde University.
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Sentence mitigation can arise for a variety of reasons, including a criminal’s mental illness, history of abuse, or socio-economic status. This anthology explores mitigation in the context of state misconduct. If a criminal was discriminated against by the state, for example, should this affect the sentence they receive?
“Generally, our criminal laws already take state misconduct into account. When there is prosecutorial misconduct there are specific legal defences,” Zaibert explains. “But what this volume seeks to do, is to complexify the type of misconduct that may be relevant. So, for example, to have had a very rough upbringing, with very few opportunities, is not one of the typical excuse-producing situations, but maybe it should be. Maybe we should more be more aware of these sorts of problems.”
Zaibert’s own interest in this question partly came from experiencing government misconduct firsthand. He recalls how, in his native country of Venezuela, “corruption was rampant, at every level”. While training in the courts as a law student, he witnessed court officials accepting bribes, to supplement their meager salaries. Many of the people giving bribes did so in an effort to have their sentences reduced. In all these cases, acts of corruption were a means of surviving under a far more corrupt government.
“It changes the way you evaluate the situation,” Zaibert explains, “I'm not saying “OK, then let's all be corrupt”. But it’s not the same thing to pass judgement on someone who might take a bribe as a functionary of a court, when they have no other way to feed their baby or to take their mum to the hospital.”
He argues that cases such as Venezuela illustrate how the question of sentence mitigation emerges in response to government wrongdoing.
However, the book’s contributors also provide different views on this subject. These differences arise for a variety of reasons, with one major influence being the country in question. As Zaibert explains, some countries are more punitive than others.
He mentions the USA, where he spent the bulk of his professional career before Cambridge, as an example of an extremely punitive country. While the 13th Amendment is widely credited for abolishing slavery, it contained a loophole for slavery to be used “as a punishment for crime whereof the party shall have been duly convicted”. This remarkable attitude has surely facilitated the expansion of the prison-industrial complex and to prisoner’s difficulties in successfully getting relief for abusive conditions of incarceration. Zaibert argues that this is a textbook demonstration of excessive punitivism. In context such as these, sentence mitigation for state misconduct appears plausible.
But not all contexts are the same. Several contributors to this volume give examples of a person who has been discriminated against by their government, but has also committed a serious crime seemingly unrelated to this discrimination. In such a case, would the wrongs by the state have any bearing on the independent wrongs by this individual? Granting that state misconduct is bad, why would sentence mitigation be the proper or even a good response?
Some contributors argue that sentence mitigation diverts attention away from actually undertaking the systemic change needed to address state misconduct in the first place. “Different contributors have different views,” Zaibert remarks. “And I think this diversity highlights very nicely the importance and complexity of the subject, and the fertile ground for further thinking that this timely volume provides.”
While this book’s contributors hold differing views on sentence mitigation, they all agree on the importance of protecting a prisoner’s human rights and dignity. “There is a deeply disturbing question, as to the inhumane or degrading ways in which we typically punish,” Zaibert explains: “We should not just lock people up and forget about their dignity and intrinsic value. The fact that someone is a wrongdoer, even a serious wrongdoer, should not deny that person’s fundamental humanity.”
Zaibert is optimistic that the research within this book can improve decision-making on sentencing. There are already plans for further research into how sentence mitigation may apply to ‘honourable wrongdoers’. This would involve cases which are technically criminal acts but could have partly legitimate causes. Environmental protestors such as Just Stop Oil have received sentences which some have argued are too severe. This is particularly important in the context of climate change and its likely effects. In this scenario, would sentence mitigation be appropriate?
“No one is saying that every single case has to become a complicated psychological novel,” Zaibert says, “but, still, there might be underexplored theoretical space for more fine-grained analyses, and for eventual policy change, arising from the fact that things are not always as simple as we take them to be.”