Hannibal. Voldemort. Skeletor and Gargamel. It’s hard to imagine any nefarious villain having redeeming qualities.
But what if someone were to tell you that the Joker is a monster only because he learned the behavior from people around him and it’s possible that, one day, he might change for the better?
A new study out of Columbia University suggests that the way we perceive others’ bad behavior – as either biological and innate or potentially changeable – impacts our willingness to cut them some slack.
The study, published in the Journal of Experimental Psychology: General, found that adults are less willing to be charitable toward “bad” individuals whose moral characteristics are attributed to an innate biological source.
Conversely, adults are more apt to be generous toward individuals when led to focus on other explanations for moral “badness” that suggest potential for change.
Unlike adults, children did not appear to distinguish between characters whose moral characteristics were described in different ways.
The findings may have implications for how we perceive individuals in society, such as those imprisoned for crimes.
“If people want to take something away from this study and apply it to their own lives, it is to be mindful of how they talk about others and their transgressions,” said Larisa Heiphetz, an assistant professor of psychology and the study’s principal investigator.
“People often encounter moral transgressions, whether in others’ behaviors or their own. This study reveals that the way we treat those individuals can be strongly influenced by the way others describe their transgressions.”
Heiphetz’s research also revealed that a person’s “goodness” was seen by both age groups as more of a biological, innate trait than “badness.”
Both children and adults were more likely to say that goodness, rather than badness, was something with which people are born and a fundamental, unchanging part of who they are.
The study, funded by Columbia University, the Indiana University Lilly School of Philanthropy and the John Templeton Foundation, is one in a growing area of research focused on psychological essentialism – how we think about people’s characteristics in essentialist terms (e.g., innate, immutable and due to biological factors) or non-essentialist terms (socially learned, changeable). Prior work has shown that people readily attribute many human characteristics to innate, unchanging factors.
To learn how people perceive moral goodness and moral badness, Heiphetz and a group of Columbia students asked children and adults what they thought about a variety of morally good and morally bad characteristics.
They found that both groups perceived “goodness” as a more central, unchanging feature of who someone is than badness, which was more likely to be perceived as something that can improve over time.
That led Heiphetz to wonder if there were any consequences associated with this perception, so she gave children and adults material resources, including stickers and entries to a lottery, and told them about pairs of fictional people that had the same “bad” moral characteristics, but for different reasons: One was described in an essentialist way—born bad—and the other in a non-essentialist way—bad as a result of behavior they learned from other people in their lives.
When study participants were asked to share their possessions with the characters, the children shared equally but adults shared more resources with the character described as bad due to learned behavior, with the potential to change.
When study participants were then told that neither of the fictional characters – whether born bad or having learned the behavior – would ever change for the better, adults still shared more resources with the character who had been described in the non-essentialist way, as having learned the behavior.
Words, as this study shows, have impact.
What do you do when faced with wrongdoing – do you blame or do you forgive?
When confronted with crime, especially offences that lie on the more severe end of the spectrum and cause victims terrible psychological or physical trauma or death, nothing can feel more natural than blame.
We may feel a range of hostile, negative emotions, such as hate, anger, resentment, indignation, disgust, contempt and scorn towards the perpetrator.
We may judge them harshly, condemning their character.
We may want them punished and to suffer in turn for what they have done.
Moreover, we may feel entitled to these sorts of emotions and attitudes, as reactions which are deserved by the offender.
Indeed, in the UK and the USA, increasingly vehement and righteous public expressions of blame and calls for vengeance have become commonplace in wider society.1
On the other hand, people can and routinely do forgive others, even in cases of severe crime.2
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.3
We are naturally endowed with both capacities: to blame and retaliate, or to forgive and seek to repair relations.
We have a choice. Which should we choose?
Contemporary penal philosophy has witnessed a resurgence of the retributive tradition, in the modern form usually known as the ‘just deserts’ or ‘justice’ model.4
On this model, punishment is hard treatment visited on the offender in response to, by reason of, and in proportion to his or her ‘desert’ or blameworthiness.
Blameworthiness, in turn, demands that the offender have the capacity for responsible agency: minimally, cognitive and volitional capacities such that they knew what they were doing when they committed the offence, and exercised choice and a sufficient degree of control in doing so.
According to this tradition, punishment is only justified if the condition of responsible agency is met, and it is further limited by the requirement that it be proportional to blameworthiness.5
Hence our propensity for vengeance is to that extent tempered, rather than left wholly unchecked.
Nonetheless, in forging a strong association between the justification of punishment and the appropriateness of blame, the choice made is clear – according to this model, when confronted with culpable wrongdoing, we should blame, not forgive.6
Our aim in this article is to explore the possibility that this choice – to blame, not forgive – which is garnering increasing consensus within penal philosophy, is inconsistent with the basic political values of a broadly liberal society, and stands in need of challenge.
For these values demand that respect and equality ideally accrue to all.
They therefore require responses to crime that aim – even if they do not always succeed – to restore offenders as full participant members of our society and repair the rupture to all that criminal offending creates.
If indeed forgiveness functions to repair relations (while reducing the risk of future re-offending) then these values suggest that we ought – so far as possible – to replace blame with forgiveness as a guiding ideal within penal philosophy and criminal justice policy, and promote practices within criminal justice institutions that move away from blame and towards forgiveness within the vast spectrum of possible real-world responses.
This suggestion may at first glance appear so radical as to beggar belief.
We hope that, as the article progresses, the contours of what it would mean, in theory and in practice, will become clear and credible.
But it is worth stating at the outset that, in counselling forgiveness within penal philosophy and criminal justice policy and practice, we are not advocating the abolition of punishment, but rather its reconception.
On the ‘justice’ model, punishment is the imposition of retaliatory costs or hard treatment in response to blameworthiness: it is an institutionalised form of blaming.
We suggest that punishment be reconceived as an institutionalised form of forgiving: the imposition of consequences in response to responsibility for crime, enacted with forgiveness in that these consequences ought to be constructed, so far as possible, to embody reparative and corresponding risk-reduction strategies.7
In this respect, our proposal is allied with, yet distinct from, recent developments in restorative justice theory and practice.
Like restorative justice, we aim to justify and develop criminal justice practices that move away from retribution, and towards reparation and rehabilitation.
But unlike restorative justice, we do not suggest bringing victims and offenders together, with the aim of creating atonement in offenders and forgiveness in victims, as a means to this end.
Rather, on our view, the criminal law itself can offer forgiveness, not on behalf or in place of victims, but in its own right.
Similarly, criminal justice institutions and practices can be better designed to embody reparative and rehabilitative strategies.
Hence, despite its radical appearance, our proposal aims to be pragmatic, suggesting how we can potentially shift cultural attitudes and reconfigure elements of existing criminal justice theory and practice, broadly speaking within the confines of the current system.8
The article proceeds as follows. We begin in section 2 by briefly re-visiting our argument, more fully articulated elsewhere,9 that there is both value and scope for importing to the criminal law a conceptual framework derived from clinical practice that sharply differentiates responsibility from blame.
We use this framework to show how the law can operate with a robust notion of responsible agency as a condition of justifiable punishment, without thereby invoking the ‘worthiness’ or appropriateness of blame as a response to criminal wrongdoing. With this framework in place, we turn in section 3 to the nature of forgiveness.
Drawing on both philosophical and legal traditions, we begin with an investigation of our ordinary folk psychological concept and the puzzle it is thought to create, before turning in section 4 to broaden the investigation, by drawing on evolutionary psychology to consider forgiveness in light of its possible function.
To anticipate, we claim that we can understand forgiveness not simply as an intrinsic, subjective state of mind, but as one which additionally functions to motivate reparative behaviours.
This allows us to draw on the nature of these behaviours to reconceive punishment as a response to responsibility for wrongdoing which imposes consequences – no doubt typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context – that embody reparative strategies.
In section 5, we flesh out the claim that we ought to replace blame with forgiveness as a guiding ideal within penal philosophy and criminal justice policy and practice, beginning with instrumental considerations, and moving to argue for this conclusion based on a commitment to the basic political values of a broadly liberal society. Finally in section 6 we briefly counsel against some tendencies within our current forgiveness practices that may undermine genuine forgiveness by in fact inviting blame back in to criminal law. And we explore what it could mean in practice to punish with forgiveness as opposed to punishing with blame, distinguishing various stages of the criminal justice process, including conviction, sentencing, and the execution and longer-term effects of the sentence.
Taking the Clinical Model of Responsibility Without Blame into the Legal Realm
In a previous article, we argued at length that there were compelling reasons to adopt the clinical model of responsibility without blame within penal philosophy and practice.10
We will not rehearse all the details of that argument here, but aim rather to provide the basic outline of the clinically-derived conceptual framework and illustrate its applicability to criminal law.
Within moral philosophy, as well arguably as the law and society at large, there is a deep-rooted tendency to link the idea of responsibility fundamentally to morality, by holding that its point or purpose is moral evaluation: the assessment of another and their behaviour as good or bad, right or wrong.
In addition, such moral evaluation is often believed to be fundamentally affective in form—embodied and expressed in our emotions and reactive attitudes towards those whose actions show ill will towards others.11
These attitudes can include hate, anger, resentment, indignation, disgust, contempt and scorn, to reiterate the possibilities listed in the opening paragraph of this article, and of course are often accompanied by equally hostile expressions and actions. At its most radical, the link between responsibility and these attitudes is thought to be constitutive: ‘to regard oneself or another as responsible just is the proneness to react to them in these kinds of ways’.12
More modestly, to hold another responsible has instead been proposed to consist in believing that such reactions would be appropriate or fitting, even if one does not actually have the relevant feelings oneself.13
But such nuances aside, the idea of responsibility to emerge from this picture links it fundamentally to moral evaluation via our practice of responding to others with what is in effect an affective form of blame.14 Indeed, theories of criminal law that see the criminal process and the execution of punishment as a form of institutionalised resentment (alongside other attitudes) are often underpinned by this picture, with the law understood as functioning to uphold our common morality by assessing transgressions and condemning trangressors through institutional processes that stand proxy for our collective emotions and reactive attitudes towards wrongdoing.15
Clinical practice offers a very different model.
Effective treatment of certain kinds of disorders of agency—where core symptoms or maintaining factors involve actions and omissions including, but by no means restricted to, those that cause harm to others or are wrong—may require clinicians to engage with patients as responsible agents with regard to their behaviour in order to help them to change.16
Such problematic behaviour is often a habitual if ineffective way of coping with psychological distress, and so part of a cycle of dysfunction.
Improvement or recovery from disorders of agency therefore requires patients to break the cycle by doing things differently.
Responsibility—understood, as in criminal law, as possession of minimal cognitive and volitional capacities—is essential for this to be possible. For it is only possible to deliberately and directly change behaviour over which we have choice and at least a degree of control.
Hence the clinical task with such patients is, in part, to motivate, encourage, and support them to take responsibility and do things differently.
Importantly, this can involve asking patients to be accountable when they don’t. Although forms of accountability vary between therapeutic modalities, they can include challenging feedback, so that the negative effects of problematic behaviour on self, others and relationships is made explicit and must be faced, potentially alongside the imposition of negative consequences (usually with advance warning, and patient agreement). Although these consequences typically involve a reflective component to encourage patients’ understanding of why they lapsed on this occasion, and to develop a plan for how to succeed next time, they may also involve measures that potentially feel punitive, such as withdrawal of privileges, or time-limited suspension from a therapeutic group.
It is a staple of clinical practice that, because these forms of accountability potentially feel punitive, they must be enacted with an attitude of concern, respect and compassion for the patient, as opposed to being accompanied by or expressive of any of the hostile, negative emotions or reactive attitudes connected to affective blame.
Within the clinic, responsibility is understood as fundamentally linked simply to agency, not morality: the point or purpose of the idea of responsibility and a demand for accountability is to enable and empower patients to change behaviour that is problematic for the sake of their wellbeing or recovery.
When the problematic behaviour causes harm to others alongside its impact on patients themselves, clinicians will of course recognise this impact on others and the moral dimension of the behaviour.
Correspondingly, they may form a judgment of ‘detached blame’, which attributes to patients responsibility for harm to others or wrongdoing.17
But the aim of clinical engagement is not to form such judgments or morally evaluate patients, but to care for patients and help them to change—irrespective of whether the problematic behaviour does or does not cause harm to others or is wrong.
Affective blame is understood within clinical practice to undermine the capacity of responsibility and accountability to enable change, because of its propensity to make patients feel rejected, worthless, ashamed and uncared for, thereby rupturing the therapeutic relationship as well as damaging any sense of hope for the future, and, correspondingly, motivation and belief that they really can do things differently.
The clinic thus offers a corrective to the widespread tendency to link responsibility with affective blame by offering a clear and established practice of attributing responsibility for problematic behaviour—including morally problematic behaviour—and holding to account without affective blame, but instead with an attitude of concern, respect and compassion.
Put crudely, reflection on clinical practice brings into sharp relief a distinction between whether the patient has choice and a sufficient degree of control over their behaviour to be appropriately asked to take responsibility and potentially held to account, and how others respond to patients when they are indeed responsible for behaviour—again, including morally problematic behaviour—and are being held to account.
Patients may be responsible and held to account for behaving in ways which are harmful or wrong, yet clinicians engage and act without affective blame.
Although there are important differences between the clinic and criminal justice institutions, this clinically derived conceptual framework can yet be imported in many respects to the criminal law.18
In the law as in the clinic, responsibility is contingent on possession of cognitive and volitional capacities. Punishment—as a form of accountability—is only appropriate in relation to the degree of responsibility for and severity of an offence.
But this fact does not in itself entail the ‘worthiness’ or justification of affective blame as a response to criminal wrongdoing any more than it is so entailed as a response to problematic behaviour—moral or otherwise—in the clinic. Hence the emphasis placed by the ‘justice’ model on degree of responsible agency and severity of offence as a condition and limit to justifiable punishment19 can be maintained wholly apart from the rhetoric of ‘just deserts’.
Affective blame can be severed from punishment, thereby allowing for penal practices to be fashioned that better serve reparative and rehabilitative ends.
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.
The Meaning of Forgiveness
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.20
Within legal philosophy, mercy in particular has been singled out as valuable if not indeed essential to the justification of punishment.21
Our first step therefore is to distinguish forgiveness from mercy, as the two are easily confused.
On the one hand, the grounds for both mercy and forgiveness may converge.
Both can stem from compassion and empathy, which may occur in response to offenders who ‘make good’ by expressing guilt, regret and remorse, and apologising and offering reparation.22
Note that these various attitudes and actions on the part of the offender are not excuses or justifications: in themselves they do not bear on degree of responsibility or severity of offence.
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.
With the exception of theories such as Kant’s23 that punishment is not merely justified but necessitated by the ‘justice’ model’s conception of blameworthiness, consideration of these grounds may therefore incline us to show mercy for the offender or to forgive the offence, and therefore to punish less if at all.
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.24
There is no question of whether or not to be merciful if we are not in a position to punish, whether that is because we have punished already, or because, more simply, we lack the power to do so.
Mercy is a possible sentiment only for those with power and authority, exercised necessarily de haut en bas.25 Yet there is a question of whether or not to forgive, wholly apart from our capacity to punish.
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.26
Many different kinds of consideration may be relevant to merciful sentencing, from compassion and empathy for those who come from impoverished backgrounds of poor opportunity, which is the case for many offenders,27 to concerns about the increasing numbers of people sentenced to prison in many countries, and about the length and quality of prison sentences.28
But, once the sentence is determined, there is nothing more mercy can do. 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.29
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?
As Lucy Allais puts the puzzle: ‘Forgiving seems to mean ceasing to blame, but if blaming means holding the perpetrator responsible, then forgiveness requires not ceasing to blame, or else there be nothing to forgive.’30
The straightforward solution to this puzzle is that, as articulated in section 1 in relation to clinical practice, ‘blaming’ does not mean ‘holding the perpetrator responsible’, as the two can be kept clearly distinct.
The offender may be responsible for wrongdoing and so ‘blameworthy’ to use the language of the ‘justice’ model: they knew what they were doing when they committed the offence and exercised choice and a sufficient degree of control in doing so.
But the fact that they are responsible for wrongdoing and so ‘blameworthy’ does not entail that we must affectively blame them.
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.31
Some further hold that forgiveness demands replacing hostile, negative emotions with goodwill or positive regard. 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.
On the other hand, one can forgive a person for one offence, while still holding a further offence against them, and so not replace one’s hostile, negative emotions with goodwill or positive regard.
Relatedly, one’s affective stance post-forgiveness may simply be one of neutral detachment: one is willing to forgive and let bygones be bygones, but that does not itself mean one feels positively disposed towards the person who has offended.
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.32
Allais holds that at its ‘heart’ forgiveness involves ‘wiping the slate clean’ in the sense of no longer holding a particular offence against the offender insofar as one forbears from allowing the offence to continue to affect one’s emotions and attitudes towards him or her as a person.
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. One forbears from nothing in allowing time to dissipate strong feelings, and one does not forbear from hostile, negative emotions in the right way by overcoming them through withdrawal and rejection, for one yet allows the offence to colour one’s attitude to the person. Equally, her account allows that one can forgive an offender for one offence, while still failing to treat them with goodwill or positive regard, because one continues to judge them harshly for other reasons, or because one’s affective stance may rather be one of neutral detachment.33
We believe that Allais has articulated the ‘heart’ of forgiveness in many of its core instances. But there are two respects in which our understanding of the nature of forgiveness departs from hers.34 First, in keeping with many other accounts of forgiveness, Allais holds that only victims—or possibly those closely identified with victims—are in a position to forgive. 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?35 Equally, forgiveness can also be a self-regarding attitude. 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. Forgiveness can be a sort of standing disposition as well as a particular act or event.36 When confronted with an offence, a person of forgiving disposition can forgive the offence not by overcoming their hostile, negative emotions and attitudes towards the offender as a person or forbearing from allowing these to continue to affect them in this way, but rather by foreswearing any and all hostile, negative emotions and attitudes that it would be natural to have towards the offender on the basis of the offence in the first place, while yet judging the offender responsible and accountable for the wrongdoing. Thus understood, forgiving an offender for an offence can forestall affective blame before it takes hold, rather than overcome it once it has.
These departures from Allais’ account are especially important for the possibility of a role for forgiveness within contemporary courtrooms and criminal justice institutions. Any such role requires a transposition of forgiveness from interpersonal relationships to institutional contexts. Some alternative versions of justice, such as restorative justice, bring victims and offenders together, with the aim of creating atonement in offenders and forgiveness in victims, using reconciliation between them as a means to restoration of the offender’s status within society.37 Such reconciliation can be powerful and important when it is achievable, but often it is not. 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. Moreover many offences (eg endangerment offences such as driving under the influence of alcohol, inchoate offences such as conspiracy, and offences of possession) are ‘victimless’, while others (eg sophisticated forms of fraud) involve victims who are unaware of their victimisation. 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.38
This may seem an especially obvious role for the law in relation to those offenders whose sentence has been served and so have ‘paid their dues’. Yet, even then, there are many respects in which contemporary criminal justice procedures are non-forgiving and create enduring forms of stigma. For instance, under the UK Rehabilitation of Offenders Act 1974, although convictions punished by a non-custodial sentence, or a prison sentence of less than two and a half years, are ‘spent’ some years after that sentence is served, convictions punished by a prison sentence of more than two and a half years remain on the person’s record for the rest of their life. 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.39 Replacing such non-forgiving practices with practices that offer a clean—or at least cleaner—slate once the sentence has been served is arguably extremely important, not only in order to promote rehabilitation and restoration, but also for the sake of justice.
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. Rather, such an approach simply reverts to the conception of punishment as hard treatment and imposition of retaliatory costs that is characteristic of ‘just deserts’ theories, but with forgiveness added on in its aftermath. We suggest that the task for criminal justice is not to punish and then to forgive—to inflict hard treatment as a supposed means to fostering inclusion and reparation, as some ‘just deserts’ theorists, perhaps most notably Antony Duff, would argue.40 Rather, we suggest it is to punish with forgiveness—to foreswear vengeance and affective blame in punishing, not just afterwards. 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.Go to:
The Evolutionary Psychology of Forgiveness
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.41
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.42 Exploitation is likely to have been a major adaptive problem that we faced during our evolution as a species. 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.43 In contrast, in-group members may have substantial fitness or other forms of value to us, because we stand in ongoing and potentially mutually beneficial relationships with them. 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.44
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. By threatening or imposing retaliatory costs, we signal that the expected benefits of exploitation must be adjusted against them, thereby protecting against future exploitation by decreasing the exploiter’s motivation to exploit. 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. 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.45 First, the forgiver may communicate—in a non-aggressive and non-retaliatory way—to the exploiter the extent of the damage they have suffered because of the exploitation. 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. 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. 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.47 But a key factor in choice of strategy is ‘Associational Value’: the expected future value of the exploiter to the individual or group across a variety of domains, and as indicated by factors such as kinship, capacity for work or other forms of social productivity, level or remorse or repentance post-exploitation, and various other forms of mutually interdependent and benefit-conferring relations. 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.48 Indeed, a series of striking experiments suggests that it governs intuitions about the appropriateness of punitive versus reparative responses to criminal wrongdoing in contemporary contexts.
Petersen and others conducted a series of studies49 both in the US and in Denmark that—despite clear differences in large-scale national attitudes towards crime, with Americans inclining towards punishment and Danes focusing on rehabilitation—converge on the same set of results. Subjects’ views of the severity of a crime predicted their view of the intensity of the response that was appropriate: the more severe the crime, the more intense the response needed to be. But their view of the severity of a crime did not predict their view of the kind of response that was appropriate: retaliatory or reparative/rehabilitative. The choice between a retaliatory or reparative/rehabilitative response was predicted instead by the Associational Value of the offender. Hence, independently of perception of crime severity, subjects preferred a retaliatory response for criminals with a low Associational Value, indicated by persistent offending, out-group status, or low levels of remorse, and a reparative/rehabilitative response for criminals with a high Associational Value, indicated by first-time offending, in-group status, or high levels of remorse. These results strongly suggest that Associational Value predicts the kind of response deemed appropriate. Severity of crime predicts, in contrast, the intensity of either kind of response deemed appropriate—worse crimes demand more retaliation or more reparation/rehabilitation, but do not demand retaliation as opposed to reparation/rehabilitation.50
These findings have striking implications. On the one hand, they demonstrate that the intuition that responses to crime must be ‘fitting’ or appropriate in relation to the degree that an offender is responsible in combination with the severity of the offence is not exclusive to the ‘justice’ model. Our basic intuition is that a severe crime requires an intense response, whether this is retaliatory or reparative/rehabilitative. This makes sense: where an offence is serious, on a vengeance strategy, there is more wrongdoing to punish, while on a forgiveness strategy, there is more reparative and rehabilitative work to be done. On the other hand, these studies suggest that, however natural vengeance may feel, forgiveness comes just as instinctively to our species, even in response to severe offences. We stand prepared to forgive—in that we prefer reparative/rehabilitative to retaliatory risk-reduction strategies—when we view the offender as a person of value to us and as one who, if they play their part in the forgiveness strategy we are prepared to offer, is worth trusting to value us in turn.
How then does drawing on evolutionary psychology allow us to offer a more positive analysis of forgiveness, over and above the negative claim that it requires forbearing from affective blame? The key idea that we want to emphasise is that both vengeance and forgiveness are not simply intrinsic, subjective states of mind, but can be viewed in functional terms. Both respond to the same input: exploitation. Both can be seen to serve the same end: reduction of risk of future exploitation, by decreasing motivation to exploit. Vengeance does this by signalling that the expected benefits of exploitation must be adjusted against retaliatory costs. Forgiveness does this 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. But, correspondingly, vengeance and forgiveness have different outputs, consonant with the difference in the means by which they respectively reduce risk of future exploitation: vengeance motivates retaliatory behaviours while forgiveness motivates reparative behaviours. Hence to punish without vengeance and affective blame, but with forgiveness, can be cashed out as follows. Punishment is reconceived as a response to responsibility for wrongdoing which imposes consequences—no doubt typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context—that embody reparative strategies. We not only foreswear any and all affective blame towards the offender as a person, but we employ reparative rather than retaliatory behaviours to fashion the consequences imposed by, and the environment and practices found within, the criminal justice system.
Within personal relationships between individuals, the extent to which we have clear and conscious choice over the decision to blame or to forgive is complex. On the one hand, forgiving is to some extent an act—something one can certainly refuse to do, or, alternatively, offer as a gift. On the other hand, it may sometimes seem as if no matter how hard one hopes or wills oneself to forgive, one cannot bring oneself to offer the proverbial olive branch—blame prevails, despite one’s best efforts. No doubt, there are methods to help us, as individuals, forgive as opposed to blame—if that is what we decide that we ought ideally to do.51 However, the criminal justice system is not an individual, but an institution. There is therefore ample scope for choice in how we punish within it, in that we can design practices and procedures and promote environments within the criminal justice system as a whole—in courts, prisons and the community—that are either blaming and retaliatory, or forgiving and reparative (for specific examples, see section 5).
Undoubtedly, implementation of such practices will require individuals who work within criminal justice institutions to perform tasks and accept responsibilities specific to their role that are designed to offer institutional forgiveness and promote reparation: if punishment is to proceed with forgiveness, that will affect the nature of criminal justice work. As with all professional roles, some individuals may then be more suited to the nature of the work than others. For instance, individuals who believe in forgiveness and reparation as a guiding ideal within criminal justice policy and practice, and who are skilled in modes of communication and interaction that are non-judgmental and non-aggressive, may find themselves better suited to the work than those whose outlooks and skills are different. But the design and implementation of these practices within the criminal justice system does not depend on individuals who work within it themselves feeling forgiveness at a personal level, but rather on their ability to perform their duties and abide by their professional roles. That is how there can be ample scope for choice in whether the criminal justice system, as an institution, is blaming or forgiving, and, correspondingly, in how it punishes, irrespective of the extent to which, as individuals, we have clear and conscious choice over the decision to blame or to forgive.
Choosing forgiveness and adapting the reparative behaviours identified by evolutionary psychology for use within the criminal justice system and as a form of punishment will not be simple or straightforward. In section 6, we begin the task of sketching what it might mean for the criminal justice system to punish with forgiveness in real terms. But we turn next to articulating some of the reasons we have to aspire to do so in theory.
More information: Larisa Heiphetz. Moral essentialism and generosity among children and adults., Journal of Experimental Psychology: General (2019). DOI: 10.1037/xge0000587
Journal information: Journal of Experimental Psychology: General
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