An Essay On Crimes and Punishment
Punishment can be understood not as hard treatment or the imposition of retaliatory costs in response to blameworthiness, but, similarly to the clinic, as the imposition of consequences —no doubt typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context—in response to responsibility for crime. Given that responsibility and accountability are maintained by this reconception of punishment as proceeding without affective blame, we have good reason in general to adopt it if indeed doing so better serves reparative and rehabilitative ends.
What we aim to explore in this article is the possibility that these ends are best served not only by punishing without affective blame , but further, by punishing with forgiveness. In other words, given the choice to blame and to forgive, we should choose to replace blame with forgiveness as a guiding ideal within penal philosophy and criminal justice policy and practice. We therefore turn next to the task of articulating the nature of forgiveness and the reasons why, out of all the many positive sentiments that could be fostered within criminal justice processes that yet leave responsibility attributions and punishment intact, forgiveness is particularly well suited to play this role.
Forgiveness is often allied with a range of emotions and reactive attitudes that express goodwill or positive regard, such as compassion, empathy, kindness, clemency and mercy. On the one hand, the grounds for both mercy and forgiveness may converge. But they may nonetheless function to obviate the felt need to inflict punishment, for they offer evidence that some of the non-retaliatory ends that we may hope punishment serves, such as reduction of risk of re-offending, or atonement and the making of amends, have already been secured without it.
Hence, on the other hand, mercy and forgiveness may converge not only in their grounds but in their outcome: both may result in the voluntary withholding of punishment. Yet mercy and forgiveness are distinct attitudes. Despite the fact that both can affect the decision of whether and to what extent to punish, once punishment has been determined and enacted, the question of mercy is otiose, while the question of forgiveness remains. Mercy is a possible sentiment only for those with power and authority, exercised necessarily de haut en bas. The offender may have been appropriately punished and so paid their dues, and yet we find we do not forgive.
Alternatively, we may find it in our hearts to forgive when no dues have been paid and we are not ourselves in any position to demand them, for we are powerless—unlike mercy, forgiveness can in theory be exercised de bas en haut , from powerless victim to powerful perpetrator. There is ample reason for thinking that mercy should play a larger role in sentencing procedures than it typically does within contemporary courts. In contrast, there is room for an attitude of forgiveness to shape the nature and execution of punishment—and its aftermath—in prison and in the community.
We can hold offenders responsible and punish appropriately in relation to the offence, without vengeance and affective blame, but with forgiveness. What does this mean? Philosophical discussions of forgiveness typically puzzle over its very possibility. Forgiving is not forgetting, nor, alternatively, accepting or minimising the offence. To forgive, one must keep the wrongdoing of the offender clearly in view. But how can one both do this and yet forgive the offence? Hence, once the distinction between responsibility and affective blame is properly recognised, the puzzle of forgiveness is dissolved: we can judge another responsible for wrongdoing and indeed hold to account and punish, without vengeance and affective blame, but with forgiveness.
This is part of why an attitude of forgiveness—unlike, say, one of clemency or leniency—is particularly suitable to inject into criminal justice processes that keep responsibility attributions and punishment intact. There is still the task, however, of offering a positive account of what forgiveness is. Many philosophical accounts of forgiveness hold that it involves overcoming the hostile, negative emotions that can comprise affective blame, in particular anger and resentment.
But there are straightforward and well rehearsed objections to these views as standardly articulated. On the one hand, overcoming hostile, negative emotions can occur in the absence of forgiveness. The passage of time notoriously dissipates strong emotions even when one will not forgive. Alternatively, one may decide the offender is simply not worth the energy these emotions require, thereby overcoming them through a form of withdrawal and rejection, rather than through forgiveness.
Lucy Allais has offered an account of forgiveness which aims to do justice to the intuition that forgiveness involves overcoming hostile, negative emotions, but meets these concerns. This is a sophisticated version of the adage that we can hate the sin, but love the sinner. When we forgive, we can in one sense hate the sin, in that we keep the wrongdoing clearly in view and judge the offender responsible for it. But, although we may not love the sinner, we need not therefore hate them either.
To put it in our terms, we need not affectively blame the offender for the wrongdoing that we judge them responsible for. Because of its attention to the detail of what it means to overcome hostile, negative emotions—namely, to judge another responsible for a particular offence, yet forbear from the hostile, negative emotions and attitudes towards them as a person that the offence initially engendered—Allais is able to meet the objection that not all ways of overcoming emotions count as forgiveness.
But there are two respects in which our understanding of the nature of forgiveness departs from hers. Yet there is nothing in her account that demands this restriction. And the restriction strikes us as at odds with how we think of forgiveness within our society. For, it is not only the victims of offences who are prone to allow the offence to colour their emotions and attitudes towards the offender as a person—to affectively blame them.
Third parties are also prone to do so. Why, then, when third parties stop blaming and instead forbear from allowing the offence to affect their emotions and attitudes towards the offender as a person, should that not count as forgiving the offender for the offence?
We can also forgive—or fail to forgive—ourselves for our own wrongdoing. The second respect in which we depart from Allais is that she seems to assume that one can only forgive if one antecedently affectively blames—in other words, if one initially experiences a range of hostile, negative emotions and attitudes towards the offender as a person engendered by the offence. But again, although this may accurately describe many core instances of forgiveness within personal relationships, we do not think an account of forgiveness requires this restriction.
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Forgiveness can be a sort of standing disposition as well as a particular act or event. Thus understood, forgiving an offender for an offence can forestall affective blame before it takes hold, rather than overcome it once it has.
Any such role requires a transposition of forgiveness from interpersonal relationships to institutional contexts. Victims may be dead, or, alternatively, unwilling to participate in such a process, or unprepared to forgive, and we may rightly view it as wrong in such circumstances to demand participation and forgiveness from them.
They are, after all, the victims of the offence. Yet, as we discuss in section 4, there may be compelling reasons to believe that offenders should have the opportunity to be forgiven for their offence. Just as it is possible to see the criminal process and the execution of punishment as a form of institutionalised resentment, so too it is possible to see it as offering institutionalised forgiveness.
This is what the law, as an institutional third-party, can offer: punishment with forgiveness, insofar as, from the perspective of the law and what it represents within our society, the slate is wiped clean. Yet, even then, there are many respects in which contemporary criminal justice procedures are non-forgiving and create enduring forms of stigma.
The Main Features of Justice, Law and Punishment
Furthermore, all offenders retain obligations to disclose even spent convictions, for all kinds of criminal offence, when applying for positions in numerous professions, including medicine, education, social work, accountancy and law. In some jurisdictions, notably in many parts of the United States, a host of stigmatising disqualifications, such as ineligibility to vote, to participate in a range of occupations, and to receive a variety of benefits, persist for some time after the sentence has been served, and, sometimes, for life.
But, we argue, the law can do more than simply offer forgiveness to those who have paid their dues by amending such stigmatising procedures. In order to genuinely punish with forgiveness, and without vengeance and affective blame, the law must not first punish with these but then overcome them through forgiveness. This is no reconception of punishment. For this is what allows the reconception of punishment as the imposition of consequences —as opposed to hard treatment or retaliatory costs—in response to responsibility for wrongdoing to take hold, and for these consequences to be effectively fashioned to embody reparative and corresponding risk-reduction strategies.
The possibility of reparation and rehabilitation can then in principle proceed in tandem with punishment—if, that is, it is reconceived as inflicted not out of vengeance and affective blame, but with forgiveness. In the next section, we say more about what this means in theory. In section 5, we discuss the instrumental and ethical reasons we have to adopt such a reconception of punishment, and we then in section 6 briefly sketch some of the ways it could be implemented in practice within criminal justice policy and procedures.
Thus far, drawing on legal and philosophical traditions, we have suggested that we can understand forgiveness as foreswearing any and all hostile, negative emotions and attitudes that it is natural to have towards the offender as a person on the basis of the offence. This is a precise, but negative, analysis of forgiveness: we know what forgiveness does not involve—affectively blaming the offender—but not yet what it does.
To answer this question, in this section we broaden the investigation by drawing on evolutionary psychology to consider forgiveness in light of its possible function.
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Evolutionary psychologists argue that both vengeance and forgiveness are universal human adaptations that have evolved as alternative responses to exploitation and, crucially, strategies for reducing the risk of future re-offending. But it can stem from either in-group or out-group members, predicting different responses. Out-group members typically have limited fitness eg survival and reproductive or other forms of value to us for the simple reason that they are not part of our group.
We do not have ongoing and potentially mutually beneficial relationships with them. From an evolutionary perspective, there is unlikely to be any inherent cost to killing or permanently incapacitating out-group exploiters. Killing or permanently incapacitating in-group exploiters therefore carries an inherent cost: the loss of a valuable or potentially valuable person or relationship. For this reason, in-group exploitation ideally requires adaptive strategies that protect against risk of future exploitation, while yet preserving the possibility of an ongoing mutually beneficial relationship.
Both vengeance and forgiveness may have evolved as competing strategies with this function. The logic of vengeance is in effect the logic of deterrence. Vengeance involves hostile, negative emotions and functions to motivate aggressive and cost-inflicting behaviours. There are, however, two risks inherent in this strategy. First, responding to exploitation with hostile, negative emotions and threatening or imposing retaliatory costs risks creating a cycle of vengeance, whereby the exploiter then seeks vengeance in turn, and the possibility of preserving an ongoing mutually beneficial relationship is lost, as aggression escalates on both sides.
Punishment Theory and Practice
In effect, vengeance risks rupturing relationships to such an extent that in-group members effectively become like out-group members—turning from possible friends to permanent foes, with no fitness or other forms of value attached to the relationship whatsoever. Second, retaliation can function to protect against risk of future exploitation only insofar as the exploiter genuinely fears getting caught and subjected to cost-inflicting behaviours: it fosters no intrinsic desire to end hostilities on the part of the exploiter—indeed, as just noted, it may increase it.
The success of retaliation as a response to protect against risk of future exploitation therefore depends on adequate and ongoing monitoring of the exploiter and possessing and maintaining the power to effectively harm them in turn. Forgiveness, in contrast, functions to motivate reparative behaviours, directing resources away from hostile, negative emotions and aggressive, cost-inflicting behaviours.
Reparative behaviours include at least the following three types. Some costs are imposed inadvertently or at least without full knowledge and intention: when this is so, then the risk of future exploitation may be reduced if the exploiter learns the true consequences of exploitation for the exploited party. Second, the forgiver may indicate that, despite the damage, the possibility for a mutually beneficial future relationship exists if the exploiter commits to refraining from future exploitation—in effect, the forgiver will wipe the slate clean, if they can be convinced that the exploiter really will refrain from harming them further.
Third, the forgiver may remind the exploiter of the mutually beneficial past relationship, in order to make salient the potential long-term costs to the exploiter of a permanent rupture to that relationship. By motivating reparative behaviours, forgiveness thereby functions to protect against risk of future exploitation by preserving the possibility of an ongoing mutually beneficial relationship and re-establishing or indeed increasing the perceived value of that relationship to the exploiter.
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The success of forgiveness as a risk-reduction strategy does not therefore depend on adequate and ongoing monitoring of the exploiter and possession of the power to effectively harm them in future—rather, it aims to foster an intrinsic desire to end hostilities on the part of the exploiter, by eliciting recognition of the damage to, and value of, the exploited party and their relationship with them. In effect, forgiveness is both forward-looking and genuinely conciliatory.
The most significant risk inherent in forgiveness as a risk-reduction strategy is that the forgiver is deceived by the exploiter into believing that the exploiter is committed to refraining from exploitation in future, and so is vulnerable in virtue of trusting the exploiter and continuing the relationship.
This is part of why credible expressions of guilt, regret and remorse, apologies and the offering of reparation, and public declarations of future intention to refrain from future exploitation, facilitate forgiveness: 46 they both indicate—but may also in addition help to create and establish through declared commitment and resolve—the value the exploiter now places on the exploited party. But equally, no doubt, the offering of forgiveness and the opportunity for a mutually beneficial relationship in future may serve to facilitate these responses on the part of the exploiter.
Forgiveness is, in effect, a co-operative strategy: it works to benefit both parties if and only if both parties can be relied on to do their part—the exploited party must wipe the slate clean, and the exploiting party must forbear from further exploitation. From an evolutionary perspective, reparation as opposed to retaliation is optimal when successful, for it reduces the risk of the exploiter perpetrating future harm, without incurring the costs of monitoring and maintaining the power to retaliate, and while bringing the benefit of preserving relationships so far as possible.
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Apart from context-specific elements, both individual and genetic differences such as sex appear to contribute to whether an individual opts for an avenging or forgiving strategy in response to exploitation. Where Associational Value is high, the orientation to forgiveness and reparation is accordingly enhanced; where it is low, the orientation to retaliation will be stronger.
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