Pardoning Punishment: The Implications of Forgiveness
Full-blooded forgiveness and making it wrong to punish forgiven perpetrators.
Originally submitted for one of my philosophy units (now new and improved!). I’d like to offer thanks to the TA for offering feedback on the original submission.
Intro
Some views of forgiveness suggest that it only amounts to the rejection and/or suppression of certain negative emotions towards a perpetrator.12 But I find such an account underwhelming and incomplete–instead opting for a more full-blooded view of forgiveness that can account for certain features I believe it to possess. In particular, I shall argue that forgiveness, properly understood, not only necessarily involves pardoning perpetrators, but also deems that it’s pro tanto wrong to punish forgiven perpetrators. In section I, I identify the importance of understanding what punishment is regarding this subject matter and offer the beginnings of a theory of punishment based on Yaffe’s norm shift theory of punishment.3 Then, in section II, I introduce what I call my Core Argument, which aims to show that forgiving a perpetrator makes it pro tanto wrong to punish them. In section III, I address the objection that an abuser who repeatedly offends deserves punishment, even if their victim keeps forgiving them. And I conclude by outlining some real-world implications of the thesis of this essay.
I: Punishment & Punish-Worthiness
In her discussion of forgiveness, and why it’s compatible with punishment, Allais suggests that punishment is more or less, just a practice aimed to defend the moral order by expressing censure towards wrongdoing.4 Other thoughts on the subject include that punishment can lead to the bettering of others,5 and that this is why it can be compatible with forgiveness.6 Immediately we can appreciate that what we take punishment to be is immensely influential on whether we think it’s compatible with forgiveness. Identifying the true nature of punishment is thus of importance in this discussion.
When it comes to punishment, there are a few things to keep in mind. First, it’s important to differentiate between what Yaffe refers to as punishment by intention, and punishment by nature.7 Put simply, something is a punishment by intention just when some treatment of individuals is intended to be a punishment. For example, a judge might lock a criminal away with the intention of it being a punishment. Conversely, something is a punishment by nature, just in case it’s in fact an actual punishment. It’s the latter sort of punishment that I refer to in this essay. Second, Punishment is a response to the wrongdoing of someone else who is morally responsible for the act and are without adequate excuse or justification for committing the act. Put another way, it’s a response to the wrongdoing of blameworthy wrongdoers. Third–and somewhat emerging from the previous point–harsh treatments needn’t be punishments, and minor inconveniences can be punishments. If someone is quarantined for a great number of years for possessing a deadly disease, they haven’t been punished–even if those punishing them intend it to be a punishment. But a person who has had their licence suspended for wrongfully speeding but is still able to be driven wherever they want (for they have a personal driver) is still being punished despite the fact that they’re not inconvenienced whatsoever. And finally, it seems that punishment involves some sort of restriction on an individual, a sort of deprivation.8 For example, it might be thought that punishment is merely about metaphysically restricting wrongdoers, e.g. by taking away the ability and opportunity to leave a prison. However, such a view is thrown into doubt by Yaffe’s norm shift theory of punishment.
Under Yaffe’s view, punishment amounts to a type of normative restriction, rather than a metaphysical one.9 For example, instead of punishment being a restriction of one’s physical movements, e.g. by placing them in a prison (metaphysical restriction), it should be understood as a type of restriction which implies that certain things are now impermissible for them to do, for instance, escape prison (they can still be placed in prison). The list of things that’s considered permissible for them to do has been shrunk. To see the appeal of this view, Yaffe asks us to consider two prisoners who each serve the same sentence in prison. The first prisoner has the ability and opportunity at any time to leave the prison, but they choose to stay. The second prisoner has no such ability or opportunity and is forced to stay. But, despite the fact that the first prisoner has the metaphysical freedom to leave the prison, e.g. they could have escaped at any time, we presumably still believe that both prisoners have been punished and have been punished equally.10
Whilst I find much to like with Yaffe’s account, I find myself coming away from it in numerous places, or at least, having things to say in addition. I don’t have the time to explore all of these concerns, so I’ll focus my attention on the most relevant one: there doesn’t seem to be any direct discussion of notions of a punishment lining up with what a wrongdoer deserves–punish-worthiness so to speak.
In introducing punish-worthiness, I shall offer a distinction between two sorts: legal and moral punish-worthiness. You’re legally punish-worthy just when you’ve broken a law and it’s written (in law) that you ‘ought’ to suffer some punishment for it. For example, it may be written into law that if you speed, then you shall face the legal repercussions of losing your licence, and it’s at least intended as a punishment. Legally speaking, you’re ‘deserving’ of the stated intended punishment just because the law says so. This is not the sort of punish-worthiness that I refer to in this essay. Instead, I refer to moral punish-worthiness, a status which one can only acquire after committing some wrong without adequate excuse and justification, and which they are morally responsible for committing.11 Punish-worthiness is identical to the status of deserving punishment, which is how it factors into the explanation of a certain criteria that I think an adequate theory of punishment should accommodate. Explicitly, it’s possible to over-punish someone: suppose a teenager steals someone’s wallet and is caught by the authorities. In court they’re sentenced to death and are then executed. This is clearly over-punishment, and the concept of punish-worthiness can easily help explain why: even if the teenager was punish-worthy for stealing, they weren’t to the extent deserving of the death penalty! The punishment is a clear mismatch to the punish-worthiness of the individual. And the same principle applies to under-punishing someone, where the punishment inflicted falls short of what the perpetrator deserves.
With this notion of punish-worthiness we can start to see how this view of punishment differs greatly from the views espoused at the beginning of the section. Punishment is not simply upholding some moral code in society,12 as you could frame innocent people, publicly punish them and achieve the same thing–provided the public don’t find out. Such behaviour needn’t be a response to wrongdoing. Likewise, punishment couldn’t only be about benefitting those being intentionally punished, presumably as innocent people can also benefit from the sorts of punishments inflicted on perpetrators as well.13 Though to be fair, it’s not clear if this view amounts to this, or whether it’s simply mentioning that punishment can be beneficial. But if that’s the case, it’s not clear how it’s supposed to be a consideration to think that forgiveness is compatible with punishment.
What I’ve offered is but a taste of a developed theory of punishment, but I think it’s sufficient to work with for the purposes of this essay.
II: The True Power of Forgiveness
With a conception of punishment and punish-worthiness now in mind, I will now introduce my core argument as to why we should believe that it’s wrong to punish forgiven perpetrators.
The Core Argument:
P1. Rationally thinking free agents have the authority/ability to pardon those who have wronged them.14
P2. Not pardoning a perpetrator15 for some wrongdoing relevant to you16 is tantamount to holding this wrongdoing against them.
P3. Forgiveness is incompatible with the victim’s holding the wrongdoing of the perpetrator against that perpetrator.
P4. Therefore, forgiveness necessarily involves pardoning.17 (From 1–3)
P5. It’s pro tanto wrong to punish someone who is not punish-worthy.
C. Therefore, it is pro tanto wrong to punish forgiven perpetrators. (From 1–5)
I will devote this section to supporting and defending this argument. A quick word on what I take pro tanto to mean. Something is pro tanto wrong just in case it’s generally wrong to do. Another way to put it that I find helpful, is that if something is pro tanto wrong, it’s not morally forbidden, but if we are to do it, we must first have adequate justification. For instance, it seems lying is probably pro tanto wrong–lying is not morally forbidden–but we must be able to justify doing it we are to do it.
Premise 1: The authority to pardon.
Before I begin, it’s important to note that I understand the authority to pardon a perpetrator for committing a wrong, just as the authority to dissolve that perpetrator’s punish-worthiness for committing that wrong.1819 Furthermore, this premise is compatible with denying that victims can punish their wrongdoers, and that institutions like the state can punish and/or pardon our perpetrators. I don’t mean to say these things are correct. Simply that they’re compatible with the premise as stated.
On that note, all this premise amounts to is simply that victims (when rational, free, etc) have the ability (the authority) to pardon their wrongdoers. Regarding the ability to pardon wrongdoers, it seems plausible enough to me on its own that we possess such an ability. It also seems plausible to me that we have to at least be free, thinking rationally, and possess sufficient agency.20 Suppose that a minority was indoctrinated by a society to believe that all members of this minority must pardon the members of a ruling class unconditionally. Suppose Brian is a member of this minority group and had been wronged by a member of the ruling class. Acting in line with what is expected of him, he pardons his wrongdoer. On the face of things, it seems that Brian’s sincere expression of pardoning his perpetrator is illegitimate as he does not do so freely.
Before moving on, I think it’s worth considering why some might not we believe this notion that we possess the authority to pardon in the specified circumstances. Some might believe that it’s only institutions such as government bodies and courts that can administer pardons (e.g. a presidential pardon)–only these things have the requisite authority to pardon. But this is puzzling to me.
Premise 2: Refusing to pardon and holding wrongdoing against another.
In refusing to pardon a perpetrator it seems that we continue holding their wrongdoing against them. We’re allowing their previous actions to weigh on them.21 We’re admitting that we weren’t ready to grant them amnesty from punishment. Something similar can be said if we maintain certain negative emotions towards someone–we’re allowing their previous wrongs to impact how we feel about them. But in the case of not pardoning them, we’re allowing their previous wrongs to impact how we act with regards to them.
Consider an example: suppose Jane steals Lucy’s life savings but is apprehended by the police before she can escape and is put in prison. Lucy’s savings are gone, and she finds herself destitute. After considering the possibility of pardoning Jane–dissolving her punish-worthiness–she refuses to do so. In this example it strikes me quite clearly that Lucy is holding the wrongful actions of Jane against her.22
Premise 3: Forgiveness is incompatible with holding wrongdoing against the perpetrator.
This is perhaps the most crucial premise of the core argument, and it largely rests upon what the nature of forgiveness is. So, what is forgiveness? There are two main conceptions that I’ll explore: forgiveness as changing how you feel about someone, and forgiveness as changing how you act towards someone–they’re not mutually exclusive.23 The former is a view held by many philosophers.24 Such philosophers believe that the heart of forgiveness is just the giving up of certain negative feelings, such as resentment, towards their perpetrators, and for the right reasons.25 I think it’s plausible to believe that any adequate theory of forgiveness will accommodate this letting go of negative feelings–it doesn’t seem like we can forgive someone whilst maintaining feelings of hostility towards them.26 However, I struggle to think that this is a full-blooded view of forgiveness. In addition to letting go of certain feelings, it seems to me that forgiveness also implies that we won’t hold the wrongdoing of a perpetrator against them in a larger variety of ways–at least the wrongdoing we’ve forgiven them for. A closely related question to this is whether punishment is compatible with forgiveness–especially if punishing someone amounts to holding their past wrongful actions against them, which seems accurate.
Suppose Lucy forgives Jane for stealing all of her life savings and they end up marrying many years into the future. But suppose that Lucy then decides to begin punishing Jane for stealing from her many years before. Lucy is clearly holding Jane’s past wrongful actions against her,27 and we may wonder if Lucy ever truly forgave Jane in the first place given such behaviour. In the case of punishment it’s quite clear, but it’s seemingly just as clear in less intense examples. Suppose that instead of punishing Jane, Lucy brings up Jane’s stealing of her savings on various occasions.28 Even this strikes me as holding Jane’s previous wrongful actions against her and invites the question of whether Lucy truly forgave Jane for her actions.
Premise 5: It’s pro tanto wrong to punish those who are not punish-worthy.
This premise is very straight forward when we consider cases of over-punishment and why we think punishing the innocent is morally wrong. In over-punishing, it’s wrong because we punish someone beyond what they deserve, and likewise for the innocent as they’re not deserving of punishment at all–they’re not punish-worthy whatsoever.
III: Objections & Implications
If we are to accept the core argument, then we’re left with the conclusion that it’s pro tanto wrong to punish forgiven perpetrators as they are no longer punish-worthy. Some might object to this conclusion on the basis of cases like the following:
Austin is repeatedly abused by their partner and is sent to jail again and again. But suppose Austin continually forgives and pardons their partner. Under my espoused view, it would be wrong to continue punishing Austin’s abusive partner, but–the objection goes–it still strikes us that they deserve punishment.29 And if that is so, then there must be at least one mistaken premise in the core argument.
I will straightforwardly admit that my view cannot accommodate the idea that the abusive partner deserves punishment for the treatment of his spouse. But this I think is just a portrayal of how powerful full-blooded forgiveness can be–it can make even a person like them not deserving of punishment. It’s also important to keep in mind that we’re supposing that Austin’s pardon and forgiveness are legitimate, e.g. they can’t be offered due to fear or conditioning. Austin must be well aware of his predicament, and he must still decide to forgive their partner. And I believe that this is Austin’s prerogative!30
That being said, this does not imply that Austin’s partner should be set free. Confinement needn’t be a punishment after all, consider cases of quarantine and keeping dangerous individuals off the street. If we have good reason to believe Austin’s partner will be a repeat offender again, then we have good reasons to prevent them from doing further harm, and this could be done in various ways.
Regarding implications, if we accept my argument, then it seems that some things will follow. For instance, our penal system would have to be updated to accommodate forgiveness and implied pardoning insofar as our current system revolves around punishing. If someone is forgiven, they can no longer be permissibly punished. This means that, absent justification to keep them restricted as before, they must be set free. No doubt this will be easier said than done, especially considering how people can feel sincere in their expression of forgiveness, only to later realise that they hadn’t actually forgiven them. In addition, a further implication is that someone has offered forgiveness to someone else, but never intended it to pardon them, then they haven’t offered true forgiveness.
I’ve argued that forgiveness, properly understood, is incompatible with not dissolving the punish-worthiness of one’s perpetrators, and that this implies that it’s wrong to punish forgiven perpetrators. After outlining my favoured view of punishment, I introduced my core argument to support my thesis and I offered considerations to believe each premise. Full blooded forgiveness is our prerogative, and it has a multitude of interesting implications in the world.
REFERENCES:
Allais, L. (2008). Wiping the Slate Clean: The Heart of Forgiveness. Philosophy and Public Affairs, 36(1), pp. 33–68
Russell, L. (2022). Forgiving While Punishing. Australasian Journal of Philosophy, 94(4), pp. 704–718
Yaffe, G. (2022). The Norm Shift Theory of Punishment. Ethics, 132(2), pp. 478–507
Allais (2008), Russell (2022)
This is only a rough characterisation.
Yaffe (2022)
Allais (2008) 50
For example, someone might reflect on their crimes in prison and emerge a better person.
5 Russell (2022) 710
Yaffe (2022)
Yaffe (2022) 491
Yaffe (2022)
Yaffe (2022) 490-491
For the purposes of this essay, I shall simply assume that such a status can exist.
This just refers to a notion that the law of morality is upheld in a society: that there are real punishments for people who act immorally, and so, there being this moral code in society is strengthened–a sort of accountability. Perhaps another way to put it is the notion that you’ll be punished for your transgressions is strengthened in the minds of society members.
It won’t always be 1 to 1 match up, e.g. you won’t have cases in which an innocent person reflects on their wrongdoing whilst in prison, since they’ve committed no such thing! However, there does seem to be possible benefits to punishing the innocent (which remember, I take to be a counterexample to the proposed view that punishment should be grounded upon this foundation —> that it’s simply about teaching those who need teaching). Suppose locking up an innocent person for a number of years would lead to them taking a deeper interest in morality, emerging a moral saint. If it’s seen as a benefit to a criminal to emerge a better person from prison, then becoming a moral saint should also count as a benefit to an innocent person.
Under the presumption that they’re capable of being pardoned, e.g. they’re punish-worthy.
At least those whom one can possibly pardon (for instance, they haven’t completed a sufficient punishment in prison–this is relevant insofar as serving this sentence dissolves their punish-worthiness, or so I shall assume).
E.g. it’s the wrongdoing committed against you.
So long as pardoning is possible, e.g. the wrongdoer is punish-worthy.
If this picture is too implausible consider a weaker view in which pardoning doesn’t dissolve punish-worthiness, but still makes it pro tanto wrong–all things considered–to punish a wrongdoer (however we want to make sense of that). People can still deserve some treatment, but morality can imply that we should not treat them as such given the context.
There are interesting questions about whether we can pardon someone who has already served a sufficient punishment (thus their punish-worthiness has already been nullified). For the purposes of this essay, I will assume that you cannot pardon someone who is no longer punish-worthy, however, you are still able to forgive them.
We may also want to tack on that they’re well informed on all relevant matters–otherwise they can always make the pardon conditional on them having changed in certain ways (but I won’t do so here). For example, they may only offer to pardon their wrongdoer iff they believe them to have changed for the better.
Russell (2022)
Feel free to add any qualifications that maintain the essence of this example. For instance, we could suppose that even if she offers a pardon, Jane will remain in prison for the same amount of time. This addition would be for those who worry that Jane would simply do more harm if she were to be set free. It’s important that we don’t mix up Lucy’s pardoning with the judgement that Lucy thinks Jane should be set free from prison.
Russell (2022) 710
Russell (2022) 707
Allais (2008) 36
Russell (2022)
Russell (2022) 709
Russell (2022) 708
I would like to thank a friend for bringing this simple yet poignant objection to my attention.
If we have obligations to ourselves this would seem to offer some ground to argue that Austin shouldn’t forgive their partner.
Your distnction between normative and metaphysical restriction really clarifies why Yaffe's view works better. The prisoner with the ability to escape but chooses to stay is still being punished because the permissibility of leaving has been removed. I wonder though if the Austin case reveals something diferent than just forgiveness being powerful. Could the prerogative to pardon actually be more about protecting victims from having their agency overidenby institutional responses?