Locating forgiveness in criminal law and punishment

In the traditional paradigm of criminal law and punishment, which is based on retribution and desert, mercy is seen as the whim of a sympathetic judge. Forgiveness is the private, emotional response of a victim, and, as such, has no place in the law. Justice requires that criminal law is fair, rationally objective and proportionate. Compassionate judges who show mercy to an offender fail to make a ‘just’ decision, as mercy does not treat like cases alike. A victim who wishes to forgive may do so privately, but compassion or revenge alike will be excluded from any sentencing decision. Despite this, there is evidence of forgiveness and mercy at work, albeit in limited ways. Restorative justice practices, sympathetic to forgiveness, are incorporated into recent sentencing guidelines. Victim personal statements are now a right, not a rarity, and they are sometimes used to express forgiveness. Some criminal defences closely resemble forgiveness by any other name. Judges engage in merciful sentencing, and the compassionate emotions have been recognised in guidelines for prosecutors on ’mercy killing’. These concepts are frequently confused with mitigation and lenient sentencing. This thesis will argue that there is a role for forgiveness in the criminal justice system, and that the gap between the private ethics of forgiveness and public mercy is narrowing. The traditional approach is to argue that Kantian retributivism must be redrawn. Forgiveness needs better definition if it is to be acknowledged in the criminal justice system at all. A total paradigm shift is unnecessary, but we can draw inspiration from alternative theoretical bases for criminal punishment, which view the subject differently. Forgiveness does not take place through a ‘one-off’ act but is rather through a process. The criminal justice system must accommodate those who wish to express it. This idea is not founded on reason alone, but recognises the offender as an interdependent subject. If the offender is regarded as responsible to others, and reasoned objectivity is not the only basis on which we can assess his guilt, or contemplate punishment, then forgiveness is possible and compatible with the demands of justice. This justice can accommodate the spirit of forgiveness, rather than automatically excluding it