‘Orange is the New Black’, is the current Netflix must watch drama. Set in a women’s prison in the U.S.A. it gives insight into prison life and the lives which the women led prior to their imprisonment.  This setting raises important questions for our criminal justice system:  What are we trying to achieve through punishment? What does our punishment system contribute to our society? These and further issues were raised in two recent lectures on forgiveness, held at the University of Oxford  St Hilda’s and Merton College on 13 and 19 June 2014.

The first lecture given by Nicola Lacey and Hanna Pickard considered a reconceptualization of the Criminal Justice System with forgiveness rather than blame, as its foundational principal whilst the talk of John Braithwaite from the Australian National University looked at the place of forgiveness in restorative justice.

Lacey and Pickard drew upon a clinical model and defined ‘forgiveness’ as punishment in response to responsibility but with an absence of hostile emotions which colour the attitude towards the perpetrator.  In restorative justice, forgiveness can take place when the focus is on restoration and the consequences of the wrongdoing include ‘rituals of remorse’.  The two descriptions actually have much in common, and perhaps Lacey and Pickard’s forgiveness model is a form of institutionalised restorative justice?

In both lectures it was argued that forgiveness is a risk reduction strategy which would have a positive impact on desistance. According to Pickard, evolutionary psychologists would tell us that both vengeance and forgiveness are adaptive responses to wrongdoing, but forgiveness is chosen when there is higher ‘associational value’ between the wrong doer and the wronged. In such instances the future benefits of the relationship to the wrongdoer provide the motivation not to re-offend.  Pickard and Lacey referred to Maruna’s work which suggests that the olive branch needs to be offered before the ‘repentance’ in order to prevent offenders from becoming more attached to their offending, or losing confidence in their ability to construct ‘a redemption narrative’. Braithwaite referred to work by Ahmed and Braithwaite, which, in a study of bullying amongst children, found that the ‘forgiveness effect’ where children had experienced forgiveness for example in their families, had twice the power of re-integrative shaming in changing future behaviour. An issue we have currently is that many who appear before the courts have already been marginalised within our society and therefore associational value may be low for them.

Shona Minson argues: prison regimes and sentence lengths may need to be addressed but the most fundamental change is for our society to adopt the understanding that a bad judgement, a crime committed, a law broken, does not mean that an individual must be forever labelled an ex-offender, with no future as a fully contributing member of society.
Both lectures espoused different views on who should forgive. Braithwaite argued for the victims’ right to forgive, pointing to global models of restorative justice, particularly in Islamic nations, where that right is enshrined, and suggested that western models should follow their lead. The New Zealand case of R v Clotworthy  (1998) 15 CRNZ 651 (CA), was used as a powerful case study. In that case the victim was badly injured in an attack, including serious and disfiguring facial wounds, but did not have the money for restorative plastic surgery. The victim had also experienced a prison sentence and did not want the offender to be sent to prison. The original sentencing court sentenced the offender to a suspended sentence and a payment to the victim, such monies to be used to pay for the plastic surgery. The Crown appealed against sentence on the basis that it was too lenient, and the Court of Appeal allowed the appeal and gave the offender a custodial term, which also removed the possibility of financial reparation as the offender was no longer earning money.  The victim was unable to have the surgery and committed suicide shortly after the appeal was allowed.
Lacey and Pickard suggested that restricting forgiveness to the victim constituted a ‘tyranny’ and that instead the criminal justice system should take on the responsibility for ‘forgiveness’. This wouldn’t exclude the victim, but rather would lift the burden from the victim. On reflection I can see that there may well be a situation arising when a victim is unable to say that they ‘forgive’ the offender, but nor do they want the offender to be harshly sentenced because they don’t wish more pain and suffering on people, particularly an offenders’ family. Currently there is no way to find that middle ground, and perhaps this notion of the CJS lifting the responsibility from the victim for forgiveness advances this issue?
The lectures raised very important questions about what it is we are trying to achieve through punishment. If we are trying to persuade those who have broken laws that the value of keeping laws is so that they can be a member of society, then they must be treated in a way that shows society as positive. Judges may argue that they never sentence with hostility or anger, but it is likely that more could be done by the courts to lessen the moral judgements made at sentence which can lead to stigma and shame. Prison regimes and sentence lengths may need to be addressed but the most fundamental change, it seems to me, is for our society to adopt the understanding that a bad judgement, a crime committed, a law broken, does not mean that an individual must be forever labelled an ex-offender, with no future as a fully contributing member of society. The time for convictions to be ‘spent’ could be reduced, and the circumstances in which convictions need to be disclosed to an employed could be limited.

It is my own view that to describe the principle as ‘forgiveness’ is likely to lead to opposition to the idea, as it will be perceived as soft on crime. I know that Lacey and Pickard have given the naming of the principle great thought and that within a philosophy/ sociology framework forgiveness is the appropriate term. I would suggest however, that in a legal/ criminological framework the idea needs to be framed more as a risk reduction/ desistance strategy which is based on setting time limits to a law breaker's period of being separated from society, whether that is literal through imprisonment, or through the stigma or shame of conviction.

I have no doubt that continuing to watch series 2 of ‘Orange is the New Black’ will aid further thinking on these important issues, with its episodic reminder that blame rather than forgiveness in criminal justice is unlikely to benefit victim, law breaker or society as a whole.