I wrote the following article many years ago, when Eugenio Zaffaroni was appointed at the Supreme Court. At that time I worked in the judiciary and decided not to publish it, as I always thought that members of the judiciary -even in humble positions- must not engage in debates that might be considered political in nature (a rule that many in high positions often disregard). Now I am free to publish it
Think what would happen if the owner of a butcher's shop appointed a zealous vegetarian to run his business. Or imagine that the owner of a bar chose a strict prohibitionist as the person in charge of selling whiskey, wine, and beer. Imagine that there has been no mistake involved in these selections. Think, for instance, that the prohibitionist has assured the owners beforehand that his efforts will be directed to reduce the consumption of alcohol and, if possible, to prevent any drinking. You will say that the owner is very stupid; but perhaps you would think as well that, no matter how zealous the prohibitionist is concerning his cause, he should refrain from accepting a job in which he is bound to betray the confidence of a fool.
In fact, that has actually happened, and in an issue far more important than sausages and drinking. In 2003, the Argentine government appointed Eugenio Zaffaroni to the Federal Supreme Court. Never before had a criminal law scholar been appointed to the Supreme Court, so it is assumed that, for the next decades, he will be the one who will lead the Court in this most important branch of the law. The trouble is that the man has said in several speeches, and asserted in a host of books and articles, that he thinks that criminal law is useless, "illegitimate", and morally reprehensible. We must be clear here: Zaffaroni doesn't tell us that this or that law is bad; he claims that a law system that punishes criminals —no matter how gruesome their crimes— is wicked. As it may sound too odd and too absurd a theory, it is better to say it again: Zaffaroni has declared many times, and written in the clearest of words, that he doesn't restrict his loathing to the law of a particular nation or of a particular age: he thinks that legal punishment can never be justified. He is a strict prohibitionist. He is the barman refusing customers all alcoholic drinking. He is the vegetarian butcher.
In a speech he gave in 1993 in Mexico City1, a decade before he was appointed to the Argentine Supreme Court, Zaffaroni declared that he would sum up the purpose of punishment in two words: "no way". He boldly added that all those thinkers that, along the centuries, have tried to justify punishment were simply wrong. Punishment has no legal function, he asserts, though it may happen to be useful to politicians. Of course, judge Zaffaroni has no objections against providing psychological treatment to criminals. Furthermore, he thinks that we are entitled to impose fines, and that we (or more precisely, he, as the judge we appointed) may order criminals to ask for the victim's forgiveness. He also thinks that a judge may be justified in prompting both the criminal and his victim to negotiate between themselves the outcome of the trial. But to send a criminal to prison, Zaffaroni says, can never be right.
Nor was this speech the only one in which he had stated his doctrine. Shortly before he was appointed to the Supreme Court, Zaffaroni had been engaged in a debate with Carlos Santiago Nino, a law philosopher very close to Alfonsin's government. His well known ties to the first democratic government that befell Argentina after the defeat in the Falklands allowed Nino a safe position from which to criticize Zaffaroni, without the risk of being called "fascist" and accused of supporting the military juntas (a risk which anyone dissenting with Zaffaroni must face). The debate took the form of an exchange of articles.2 Startled at Zaffaroni's refusal to send criminals to prison, Nino asked whether Zaffaroni would maintain his doctrine in cases of genocide, mass murder, and similar gruesome crimes. The master, as many people now call Zaffaroni, proved impervious to reason and asserted once more that punishment (other than fines, of course) is always unjustified. He must have felt that he had gone a bit too far in his foolishness, so he allowed that pain (he does not permit the word "punishment") might be imposed to mass murderers. But even this concession was belittled by burying it into theoretical debris: Zaffaroni said that giving pain to mass murderers (or maybe cruel rapists) was only an "alternative use of law", a device, he explained, which is not limited to Marxist theory. What he meant by that is difficult to say; or more precisely, it is likely that its meaning, if it had one, was too absurd to be put in plain words.
Now, apart from the general unsoundness of Zaffaroni's doctrines (a fact that must be expected of a man that the Argentine intelligentsia find admirable), there is an immediate objection to Zaffaroni's appointment to the Supreme Court. Namely, how can he honestly accept a job that requires him, either to betray his moral convictions, or to betray the laws he has vowed to enforce as a judge? In other words, how can a strict prohibitionist honestly accept a job as a barman? Well, he can't, honestly. But, of course, if the prohibitionist takes the job anyway, he will be in a position that will enable him to root very effectively for his doctrine. It would be as effective as to have strict vegetarians running butcher shops, and puritans running porn shops. Success would mean total collapse.
Zaffaroni himself is aware of this most obvious objection. In his Mexico City speech, he pondered on the possible justification of a jurist that decries punishment, and still vows solemnly that he will enforce a Criminal Code which commands prison to about three hundred different crimes, from murder to fraud. Ever confident about human gullibility, Zaffaroni proceeded to explain the moral puzzle. He said: well, there are many other facts in politics that can't be justified, and this is one of them.
This sounds right: imagine someone promised you to do something and then failed to keep his word. You meekly mention that to him. Then he answers: you know, there are many things that cannot be justified, and my failure to keep my promises is one of them. Certainly, you will admit your mistake and apologize: now I understand, I am sorry I have bothered you, what a simpleton I am !
As children do when they are caught throwing stones, Zaffaroni pointed out that others do the same. He explained that he is not the only one that profits from contradictory positions: others do the same. War, he said, is illegal according to international law. Nevertheless, international law has rules concerning the treatment of war prisoners. There you have a contradiction: how can anyone have rules about things that should not have happened in the first place? It is like banning robbery, and then telling robbers that they must spare your bed and your chairs. The audience must have been fascinated by the master's powerful logic. Fortunately, his words have been preserved in text form, so that future generations can profit from them as well.
Zaffaroni's reasoning has such number of mistakes that it is often difficult to decide which must be tackled first. For a start, it is not true that international law declares war illegal. A number of attacks might have been declared so, but not war in itself. For instance, England declared war to Germany at a time in which Germany was at peace with England and nobody has ever suggested —with the possible exception of Hitler— that this was illegal. So, the very starting point of Zaffaroni's reasoning involves a falsehood of which he cannot be unaware.
But there is more: even if —at a moment nobody was paying attention— all wars had been declared illegal by international law, this does not mean that there is any contradiction in having rules concerning the treatment of prisoners of war. If you engage in an unlawful activity (war), you may make you crime worse if, on top of that, you mistreat prisoners of war. The same happens with common crimes: if you rob and kill you are more blamable than if you simply rob. Where is the contradiction? How does this relate to Zaffaroni's moral choices?
If we follow Zaffaroni's meandering line of though, we will find that it leads to something worse than bad logic. Explaining how he was justified in vowing to enforce laws he regards as illegal and immoral, or —to be precise— explaining why he thinks himself entitled to break his vow, Zaffaroni continued with his comparison. He told his audience at Mexico City that those who dictate international rules for the treatment of prisoners escape logical contradiction only by taking war as a mere fact. War cannot be justified, never. But as it exists, international law givers can try at least to curb its more awful consequences.
At this point, one might wonder why all this relates to Zaffaroni's vow as a judge. He left those in his audience to guess by themselves; but the comparison is easy to understand. He takes legal punishment as a fact he cannot justify but cannot avoid. He knows that only highly trained law scholars would think right that, say, savage murderers get away with their crimes with only psychological treatment. He knows that legislators —let alone voters— would never admit the reforms that Zaffaroni deems necessary to make criminal law morally acceptable. Confronted with this evil fact he cannot change, he thinks himself entitled to thwart the evil from inside. In other words: the illegitimate fact against which Zaffaroni dedicates all his efforts is not crime, but criminal law; at least, that major portion of criminal law that commands prison to major crimes, and not just psychological counsel, fines, a dialog with the victim, etc.
Criminal law is selective –yes, it must be selective
In the previous paragraphs, I have pointed out the dubious moral character of a war against criminal law that is waged from inside, while pocketing a high salary, and with all the advantages of treachery and irregular fighting. But let's forget all that for a moment, to consider Zaffaroni's objections to prison as if they involved only a confrontation from outside, and not treason from within. Let's consider the more favorable case of a scholar who takes issue with criminal law, someone who has not vowed to enforce it. Why should we remove prison from the Penal Code? How has Zaffaroni come to such a complete rejection of punishment?
First of all, Zaffaroni argues —in every article he writes on the subject— that those taken to prison are mostly brutish and clumsy criminals, the less proficient, the losers. The more cunning kind of criminal is seldom caught. So what? Is Zaffaroni arguing that our failure to catch all criminals is a good reason to free those who we manage to catch? I have heard boys sustaining this line of argument; indeed, probably I have used it myself when I was a child. But it appalls me to hear a law scholar repeating over and over: others are wicked too, and they have not been caught!
Zaffaroni assures us that those in prison are there because they are stupid losers. So what? Is it true that stupid criminals are less dangerous than clever criminals? No, they are often more dangerous. They are not able to rob without threatening and beating their victims; they cannot refrain, once they have entered a house, from hitting the husband, raping the wife, and setting fire to everything. A clever thief would not act under the effect of alcohol and drugs; stupid thieves do it all the time, and it is more likely that, in such state, they will behave recklessly.
Besides, how do you define stupidity in criminals? Criminal skill has many sides, and a criminal might be very proficient in killing the victim, but clumsy in hiding the corpse. I remember a case in which a gang attacked a bank truck —which is seldom an easy enterprise. The robbers had managed to get precise information about the route the truck would follow. They had armed themselves with machine guns. In short: they were quite good on that side of crime. The attack was successful —success meaning, a truck guard dead, others wounded, and the money taken. The robbers went to a safe house they had prepared beforehand. To spend their time pleasantly, they took some girlfriends with them. One day, one of the chicks had a row with one of the neighbors. Two of the gang went out and threatened the neighbor, making a display of their weapons. That probably looked great and pleased the girl. Unfortunately for the robbers, the neighbor returned to his home, picked up the phone, and told the police that there were men carrying weapons nearby. The entire gang was caught and the money was recovered (except a small amount they had already consumed). The robbers had been very clever in almost everything; but when they thought they were safe, they made one fatal mistake; and that was enough.
It is useless to discuss the exact combination of intelligence and stupidity the robbers showed. What is certain is that their stupidity didn't make them less dangerous. Try telling the guard's widow that those sent to prison were nothing more than stupid men. Well, it is likely that Zaffaroni would say it. Moreover, he declares that Criminal Law must be redefined so that its goal becomes to encroach, and if possible to eliminate, the power of punishing criminals (see his Mexico City speech, paragraph 10). Of course, as he himself has been given the power to punish, and at the highest court in the country, he is now in the very place where he can easily thwart the enforcement of criminal law.
In a most Orwellian style, Zaffaroni tells us that the meaning of "crime" must be redefined: it is only the imprisonment of people that constitutes a crime. So, he boldly adds, "reducing crime" really means reducing the number of inmates. That a law scholar and a judge would say this, and that his audience would cheerfully agree with him, seems hard to believe. But you can read these assertions in Zaffaroni's Mexico City speech. He ruefully mentions the "black numbers of crime" referring to the number of inmates, whom he calls "victims". This is my conclusion: I will make use of Zaffaroni's additions to Orwell's newspeak: if someone stabs you, you know that the stabber is the victim —unless, of course, he manages to avoid being sent to prison, which then will be counted as a small triumph in the long struggle against crime. This degree of confusion, these redefinitions of words that would make the Party leaders of 1984 blush, in a word, this nonsense, may be thought to be incompatible with the highest positions both at the bench and at the University. In normal times and in normal countries, it must be thought impossible. In Argentina, and at the beginning of the XXI century, high nonsense is not incompatible with high rank: it is its most important requisite.
When he had to confront Nino, Zaffaroni was more guarded. He refrained from absolute definitions; he didn't dare, as he did in his Mexico City speech, to make use of his "no way" answer to the question of the legitimate functions of punishment. In his debate with Nino, Zaffaroni made a strategic retreat to a more safe position, which —not surprisingly— is the position of someone who has doubts. This time, Zaffaroni said that there is no evidence that sending people to jail works as deterrence of crime. I would have suggested a trip along an area devastated by a hurricane or an earthquake, where gangs operate freely, killing, robbing and raping: that would give Zaffaroni a clearer idea.
On the other hand, in his debate with Nino, Zaffaroni admitted that there is no evidence that punishment doesn't, to some extent, actually prevent crime. He declared that, as to the affects of incarceration, he is an "agnostic". But then, how can he say, when he is safe from criticism and just addressing a mob of professors, that he is certain that it is a crime to send criminals to jail? Moreover, is Zaffaroni sure that fines do prevent crime? If not: how is it that he sees no objection to them?
In fact, it is useless to search for consistency in Zaffaroni's opinions. Nevertheless, we must tackle them because they are becoming the official ideology of the judiciary, of the government, and of the universities. Let's see another reason Zaffaroni often mentions for his rejection of punishment. He says that statistical studies made on US jail populations have proved that poor people outnumber the middle and high classes. Worse than that, statistics prove that there is no proportion between the number of black inmates and the black population of the US. Zaffaroni presents these revelations as if they where evidence of a secret plot. After discovering this lack of proportion, he lost his faith in criminal law, he would never believe again, he lost his virginity. He realized that law was just the cruel tool of the dominant classes. I must say that Zaffaroni's faith in law must have been very little if it was shaken by statistics that simply confirm what every adult (and most children) already knows.
So now we know that prison populations are not representative of the whole population. Why should they be? Old ladies do not engage in crime as often as young men. In fact, I would start to suspect a bias if I were told that we have sent to prison an equal number of young men and of old ladies. And, what about the proportion between the number of inmate drug addicts and the number of drug addicts in the whole population? Is there a fair and representative proportion kept? It is easy to see the mistake in Zaffaroni's argument: it consists in requiring a proportion between the various sections of the population and the number of inmates, and not between those who actually engage in crime and those sent to prison.
Zaffaroni believes that he has discovered a fundamental objection against all criminal law systems. He says that all of them are "selective". Well, somebody should have told him earlier in life that the law must be selective: criminal laws say how this selection must be made. Of course, a number of laws may be wrong and should be amended, and it is certain that judges and public prosecutors often fail to apply the law correctly. But this is no ground for rejecting punishment: it is a reason to avoid wrong punishment.
In his articles and speeches, Zaffaroni often makes use of the phrase "white collar crime" —its Spanish equivalent is "delincuencia de guante blanco". Pampering the worst instincts of his audiences, Zaffaroni suggests that criminal law is too lenient with white collar criminals, and here he finds another imbalance, and another objection against punishment. But, if he were truly concerned with the evils of prisons (and there are such evils), he would celebrate leniency —wherever it fell— and not frown at it. But apart from this contradiction, he and all those who constantly shout "white collar crime" fail to see that there are obvious reasons for the imbalance they criticize. First of all, "white collar crime" is often more difficult to detect; as Zaffaroni himself acknowledges, some criminals are more clever than others, and it is hardly a surprise that those not so clever are the ones who are caught. Secondly, what are "white collar crimes"? By far the most common one is tax evasion. But then, we must think that if it were heavily punished, most Argentinians would have their residences in prison. And this comprises both the rich and the poor: in a rare example of national unity, tax evasion joins the large majority of Argentinians in a common endeavor.
Third, Zaffaroni fails to see that criminal codes punish violent crime more severely than any other thing. And, by definition, "white collar crime" is not violent. Even a law scholar would understand that it is one thing to take money from people by forging credit cards, and quite another to take the same money by threatening them with a gun. Unfortunately, the brutish losers pitied by Zaffaroni are better at using guns than at using forging tools. Besides, according to the Argentine Penal Code, fraud (art. 172) and robbery (art. 164) have exactly the same punishment. Indeed, mere theft is punished less severely than fraud. Of course, robbery with firearms is worse than fraud (art. 166). But, is this difference the result of a conspiracy against poor brutish losers? Or is it just common sense?
The “crime” of punishing criminals
In his debate with Nino, Zaffaroni admitted that violence might be used against criminals. But he allows it only if violence is directed to prevent a crime they are about to commit. For instance, says Zaffaroni, a policeman may be permitted to take the arm of somebody who is about to stab his victim (thank God!). But if the murderer succeeds in killing his victim, then it would be a crime to send him to prison. Zaffaroni treats Nino as a simpleton for not being able to distinguish these two different uses of force. "Direct coercion" ("coacción directa") directed to prevent imminent danger is permissible; but punishment is different: it is always immoral and —according to the view that defines law as those opinions shared by judges— it might be illegal.
Zaffaroni vowed to enforce laws he know he will betray. This is the only way in which he will be able to force millions of citizens, and not just a mob of intellectuals, to accept his doctrines. He has said in the clearest of words that he believes that the only possible goal of a judge is to fight criminal law from inside. Indeed, long before he was appointed to the Supreme Court, in his Mexico City speech, Zaffaroni devised a plan to reduce crime. We must remember that, in his parlance, it means to reduce the number of criminals in prison. He acknowledged that people at large would not accept his doctrines; nevertheless, as in his view punishment has no true function, people’s wish to see criminals in prison may be satisfied by just choosing a figure, and deciding that this will be the number of inmates we want to have. Though we cannot put an end to the foolish practice of punishing criminals, we may put a limit to it: we must choose a number of inmates that will keep the voters happy.
We must choose a number. Actually, “we” won’t decide anything. A board, or perhaps judges –Zaffaroni is not very clear as to whom he would trust the decision—will set a number. Any criminal who is convicted above this number will then be exempted from prison, or —alternatively— some other inmate will be freed, so that the limit is respected. In this way, the number of inmates will never exceed the limit and, by setting the number low enough, crime (remember the redefinition of words) will be reduced. In Zaffaroni’s parlance, the plan consisted in putting a limit to the number of victims (read "inmates").
His plan, said Zaffaroni, required a freeze in the construction of prisons, otherwise, he insisted, it won't have any chance. Why is it so? At first glance, it seems that if the limit to the number of inmates is enforced, it doesn't matter whether there is more wasted space inside prisons. The freeze seems to be only a matter of avoiding useless constructions, but not a requirement for the plan. Strictly speaking, of course, the construction freeze is no requirement. But if a freeze on the building and expansion of prisons is decided, then it would be possible to argue that there is no room for new inmates, and Zaffaroni's plan would look simply a device prompted by practical considerations. But that is not the real motive: it suffices to read Zaffaroni's 1993 speech to understand that the plan has nothing to do with lack of facilities.
A decade after the plan was announced, it has been put into practice. No freeze has been adopted, but in fact, in this issue as well as in others, the legendary Argentine carelessness amounts to an actual freeze in new constructions, and probably even in the repair of old prisons. Now at the Federal Supreme Court, Zaffaroni is engaged in a battle against the Buenos Aires Province government. A maximum number of inmates has been chosen, but there is still some wrangle as to whether it is the right one. Nobody has been able to say what to do with those convicted beyond the limit.
Of course, a judge cannot order anything unless he has a case. Accordingly, and most conveniently, a journalist —the former terrorist and now influential journalist Horacio Verbitsky— sued asking that Zaffaroni's plan was adopted, which Zaffaroni, now in the role of judge, said was indeed required by federal and international law.
Nino had pointed out that it is undemocratic that judges, unelected officials who enjoy life tenure, force their pet plans on the whole population. Zaffaroni retorted by saying that, on the same grounds, no resistance against Hitler could ever have been justified, because he had been democratically elected. Again, this is nonsense. Democratic elections do not mean rule of law. We don't need to go as far as to Germany to learn this; here, in South America, people routinely and cheerfully vote tyrants that oppress dissenters, protect criminals, plunder bank accounts, and apply retroactive law both in civil and criminal cases. For those who want to have a whiff of the odor of the intellectual atmosphere, it is enough to remember that democratically elected governments in Argentina still pay homage to a general, Rosas, who ordered that a pregnant girl was executed for the crime of loving a priest.
But nothing of this proves that elections are irrelevant. Besides, the fact that there are elected tyrants that break the rule of law is hardly a good reason to justify unelected tyrants that do the same. In South America, as it once happened in Germany, these two kinds of tyrants usually work in accord. And yet, as long as elected tyrants don't suppress elections, we may hope of removing them in the next election. Against unelected tyrants, we don't have that chance. This is the only difference between them.
Zaffaroni, an expert on many things
A couple of years before he was appointed to the Argentine Supreme Court, in a speech he gave in Guarujá, Brazil,3 Zaffaroni made another of his startling comparisons. He declared that he followed a maxim he described as the logic of the reasonable butcher. He asked his audience —a mob of criminal law professors attending an international conference— to imagine that people started going to a butcher, asking him medicines, plane tickets to New Zealand, and trying to open bank accounts. A reasonable butcher –Zaffaroni continued- must reject these requests and honestly tell people that he only sells meat and sausages. But the butcher might become mad, and start trying to provide all the different things people ask from him. That, Zaffaroni asserted, is what many criminal experts do. On his part, he adopts the logic of the reasonable butcher, and acknowledges that criminal law is not the proper tool for the achievement of all the goals that people assign to it.
The comparison has an obvious flaw. Although the reasonable butcher will acknowledge that sausages aren't tickets to New Zealand, he will never fail to tell us that sausages have some good and proper use, namely, to eat them. Zaffaroni, on the other hand, says that punishment, which is present in every penal law, has no good and proper use: he tells us that punishment is the wicked tool that "the system" uses to oppress his victims. Zaffaroni would have been more precise if he had told his audience that he was a vegetarian running the butcher's shop. He will make his job to tell the customers that sausages are bad, that it is immoral to eat them, and probably illegal. Zaffaroni is the vegetarian butcher.
When comparing himself with a reasonable butcher, Zaffaroni tried to show himself as a modest man, a man dedicated to his own branch of the law, and perfectly aware of his ignorance about other issues. I'm only a criminal law scholar, he said, not an omnipotent wise man. But immediately after having made these declarations, Zaffaroni started to rant against globalization, politicians on TV, and the small amount of investment dedicated to tackle social problems. Not content with this, he assured his audience that international finance is very similar to the Mafia, and that its methods are those of the Mafia. Next, he denounced those who claim that international terrorism must be tackled by criminal law (what an absurd idea!) accusing them of using the fear for terrorism to encroach civil liberties. He, the meek scholar limited to his own research field, denounced that the world has been transformed into a big slave ship, with a few rich people enjoying a first class deck, and a multitude of others who are only waiting to die, without food, water, and even without light. He said that those at the bottom would think it better to commit suicide rather than to keep living, but that they will try to kill others while killing themselves.
I wonder whether it was lack of food, lack of water, or lack of light, that led a group of young English born Muslims to kill themselves and hundreds of others in London, shortly after they had returned from their hatred-learning trip in Pakistan.
Eight years before Zaffaroni made such measured technical survey of his own legal branch, he had alerted his Mexican audience about a change in the US economic system. He declared that it has been transformed from one centered on production, to one centered on services, and concluded that this most wicked turn has created an hypertrophic criminal law system. He further complained against the US, saying that it managed the world currency.
I almost forgot: in 2001, in his measured and scholarly survey, Zaffaroni denounced that globalization was exempted from costs (I think that he had some sort of tax in mind), and regretted that governments everywhere had lost their power to mediate between the forces of capital and the forces of labor. He warned that capital was directed only to those places where there is less investment in social care (yes, everyone is investing in Africa), and where workers are treated as slaves. One must remember that Zaffaroni was vomiting all this at the members of an International Congress on Criminal Law. To that meekest of all audiences he repeated the list of commonplaces one may hear at Muslim and Marxist madrasas around the world, but at the same time he pretended that he was only making a humble contribution to his own branch of knowledge, regretting that others who think themselves omnipotent venture to address issues about which they are not qualified. But then, what are Zaffaroni’s qualifications on international finances, globalization, the effects of the service sector on the economy and on society, the role of the state on labor disputes, and terrorism? If Zaffaroni thought he was qualified to harangue his colleagues on these issues, then it seems that, when criticizing the omnipotent pretensions of wisdom of others, he excluded himself from a similar restriction. Yet it is clear that outside his field of study, and perhaps even inside it, Zaffaroni knows as much as the man who will sweep the floor after he and his audience have departed to the next international meeting in their agenda.
The darling of the establishment
It was already bad that Zaffaroni had been in charge for so long of the education of future lawyers and judges. But now, “the system” he never ceases to denounce has also appointed him judge at the Supreme Court, which shows once more how little truth there is in his theories about power. It is certain that from his high position, this man, who presents himself as a humble scholar, will try to enforce his doctrines on us. We'd better know what he is up to.
Note about web references: I have provided web addresses in which Zaffaroni’s articles can be read. Sometimes web sites change contents, or disappear. In that case, you may simply google for the articles. For instance you may search for “Zaffaroni Nino debate”, or “Zaffaroni Guarujá” (his speech in Brazil) or “Eugenio Zaffaroni qué hacer con la pena” (his speech in Mexico).