Nicola Lacey & Hanna Pickard, ‘From the Consulting Room to the Courtroom? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm,’ Oxford Journal of Legal Studies, 2013
Nicola Lacey & Hanna Pickard, ‘To Blame or to Forgive?: Reconciling Punishment and Forgiveness in Criminal Justice,’ Oxford Journal of Legal Studies, 2015
What should we do when someone wrongs us? It is a question all of us must deal with at some point in our lives. It is also the question that sits at the core of the design of the criminal justice system: when someone commits a wrong against society, how should the society respond?
In ‘From the Consulting Room to the Courtroom? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm’, Nicola Lacey, (School Professor of Law, Gender and Social Policy at London School of Economics Law School) and Hanna Pickard (Bloomberg Distinguished Professor of Philosophy and Bioethics at Johns Hopkins University) articulate a different vision of the criminal justice system, one that is kinder and more compassionate towards those within its fold and that rejects the anger and hate that is currently imbued through the process.
Lacey and Pickard posit that there are lessons to be learned from the clinical approach in treating personality disorders. Therapeutic treatment in such cases involves having patients take responsibility for their actions, but within an environment of empathy and care geared towards their own improvement. Patients are presumed to have the capacity to significantly control their ‘maladaptive behaviour’, and so the focus is on motivating and supporting patients to choose to alter such behaviour. This process can also involve forms of accountability such as efforts to make patients understand the consequences of their behaviour and even face negative consequences during the treatment if they fail to modify problematic behaviour. But this somewhat punitive process is still undertaken with an attitude of concern, respect and compassion, as opposed to blame.
Lacey and Pickard argue that the court system can take inspiration from this approach to envision a more empathetic system – one that separates accountability from what they call ‘affective blame’, that is, the typically hostile and negative responses we have to criminal conduct. This does not mean the courtroom becomes the clinic. Both institutions have fundamentally different purposes, with the clinic focused on the improvement and care of the offender while the court system has to also protect public safety and the victim’s interests among various competing considerations. But they argue that the therapeutic process still offers lessons that can inspire a reimagination, one that fulfills the various goals of the sentencing process while also functioning as a more compassionate and empathetic system.
Through this, the authors challenge the widespread assumption that a rehabilitative approach necessarily means the offender cannot be held accountable: we can still hold someone responsible while also extending compassion towards them. To put it simply, Lacey and Pickard ask us to hate the ‘sin’ and not the ‘sinner’, to not focus on the hate we feel towards the offender and not let the process operate as an expression of such collective hate and anger. Offenders are equal members of our society, and as such, they are entitled to dignity and respect. The process of punishment ought to be imbued with such dignity and be geared towards reintegrating offenders as members of society. They also argue that, as a society, we may have a moral obligation to work for the reform and reintegration of offenders who are typically victims of social inequality and disadvantage prior to offending.
The authors build on this institutional reimagination in ‘To Blame or to Forgive?: Reconciling Punishment and Forgiveness in Criminal Justice’, to argue that the value of forgiveness ought to be the foundational principle of the criminal justice system. Their definition of forgiveness builds on the work of Lucy Allais. Forgiveness means wiping the slate clean – one can hold the offender responsible for the offence and even condemn the offence itself, but one also then lets go of the negative feelings towards the offender because of the act. However, their articulation of forgiveness differs from other accounts in one important aspect. For Lacey and Pickard, it need not only be the victim who forgives – that is not their burden to bear. Just as our present system is infused with institutionalised resentment and blame, it can offer institutionalised forgiveness.
The institutional forgiveness Lacey and Pickard imagine still requires the offender to be held responsible for their actions. They envision a process that requires the exploiter to understand the harm they have inflicted and to convince the forgiver that they will refrain from inflicting further harm, which any return to society must be conditional upon. Lacey and Pickard argue that such a system is more effective because it works towards building an intrinsic desire to change among offenders towards securing the benefits of a reintegration in society. Focus on vengeance on the other hand only leads to marginalisation of the offender and ultimately to vicious cycles of revenge and violence.
For forgiveness to work in such a radical manner, both parties must be genuinely committed to the process. Offenders must be willing to reflect and to refrain from committing further harm. But the system must also be prepared to genuinely forgive such willing offenders. While we can and ought to hold offenders responsible, we cannot use the idea of ‘earning forgiveness’ to smuggle in vengeance and condemnation. They argue the starting point should not be to focus on what offenders can do to earn our forgiveness, but instead asking what the criminal justice system can do to encourage offenders to participate in a reparative process.
What does all of this mean in practice? Abandoning affective blame and institutionalising forgiveness requires fundamentally reimagining the structures and practices of the system as a whole. But Lacey and Pickard also offer first steps towards such institutional reform. They argue that we should eliminate stigmatising harmful behaviour from the processes which are designed solely to degrade offenders, such as identifying prisoners only by their convict numbers. They also argue for a more balanced approach to sentencing, one that focuses on understanding the background and context of offenders, which will ultimately help temper the affective blame one instinctively feels in response to the offence.
Forgiveness requires wiping the slate clean after holding the person responsible. An important step is addressing the collateral consequences that follow offenders even after they have served their sentence, such as disenfranchisement or residency requirements which continue to stigmatise offenders despite already being held accountable for their actions. In the process of trial and sentencing, it means focusing on the offence and not attacking the character of the offender in dehumanising and negative ways – to avoid condemnatory behaviour that would undercut the reparative focus of the process. More radically, forgiveness in sentencing imagines involving the accused in the process of determining the punishment that will be imposed. Through such participation, they are invited to help in designing and therefore also accepting the consequences of their offending. Ultimately, the process must be geared towards reparation of the harm caused and reintegration of the offender into society.
Additional reading recommendations:
- John Braithwaite, Restorative Justice and Responsive Regulation (Oxford University Press, 2002).
- Shadd Maruna, ‘Shame, Shaming and Restorative Justice: A Critical Appraisal’ in Handbook of Restorative Justice (Taylor and Francis 2005).
- Jeffrie Murphy, ‘Forgiveness, Reconciliation, and Responding to Evil: A Philosophical Overview’ in Punishment and the Moral Emotions: Essays in Law, Morality, and Religion (Oxford University Press 2012).
- Martha Craven Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (Oxford University Press, 2016).
- Martha Minow, When Should Law Forgive? (W. W. Norton & Company, 2019).
