Wednesday, March 2, 2016

To Blame or to Forgive? Reconciling Punishment and Forgiveness in Criminal Justice

What do you do when faced with wrongdoing—do you blame or do you forgive? Especially when confronted with offences that lie on the more severe end of the spectrum and cause terrible psychological or physical trauma or death, nothing can feel more natural than blame. Indeed, in the UK and the USA, increasingly vehement and righteous public expressions of blame and calls for vengeance have become commonplace; correspondingly, contemporary penal philosophy has witnessed a resurgence of the retributive tradition, in the modern form usually known as the ‘justice’ model. On the other hand, people can and routinely do forgive others, even in cases of severe crime. 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 risk of re-offending. We are naturally endowed with both capacities: to blame and retaliate, or to forgive and seek to repair relations. Which should we choose? Drawing on evolutionary psychology, we offer an account of forgiveness and argue that the choice to blame, and not to forgive, is inconsistent with the political values of a broadly liberal society and can be instrumentally counter-productive to reducing the risk of future re-offending. We then sketch the shape of penal philosophy and criminal justice policy and practice with forgiveness in place as a guiding ideal.

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...

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By:  Nicola Lacey* and Hanna Pickard**
*Departments of Law and Social Policy and Gender Institute, London School of Economics. Email:
**Department of Philosophy, University of Birmingham. Email:

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