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Article Excerpt
The recent literature on criminal justice has yielded an intriguing suggestion: that someone who does wrong has a right to make amends. In this essay, I will evaluate arguments for and against this claim with regard to cases of both criminal wrongdoing and private wrongs. I conclude that the balance of arguments speaks in favor of a right to make amends. This conclusion has ramifications for the just design of criminal sanctions, and these will also be addressed here.
1.
In a recent article, Geoffrey Sayre-McCord defends a system of legal reparations as an alternative to the punishment of criminals. (1) The principle of legal reparation states that, when a person is guilty of criminal wrongdoing, she has a duty to make amends to the victim and/or the state, and that the state can justifiably enforce this obligation. Sayre-McCord argues that all of the compelling arguments usually offered in defense of punishment--arguments based on desert, utility, deterrence and the expressive function of law--can be deployed just as effectively in favor of a system of legal reparations.
In addition to these, Sayre-McCord introduces an argument that appears to support reparations in particular:
[R]eparations, unlike punishment, finds a place for the thought that criminals--in addition to having a right to be treated as responsible moral agents--might also deserve the opportunity to make amends ... A new injustice comes in (except perhaps in the most extreme cases) if a person who commits a crime is denied the opportunity to make amends. (2)
Whereas reparations are usually defended on the grounds of a right that the victim has to acknowledgment and compensation, this passage suggests that the opportunity to repair a wrong is also a right of the offender.
Sayre-McCord is ambivalent about whether this is indeed a genuine right. (3) However, the idea seems to have support among a growing number of lawyers, criminologists, and prison reform activists who associate themselves with a movement known as "restorative justice." (4) Like Sayre-McCord, they advocate replacing the punitive criminal justice system with one that enforces the offender's duty to pay reparations. Restorative justice is further characterized by a commitment to procedural norms that allow each of the involved parties--victims, community representatives, and offenders--a role in determining the criminal's sentence. One of the main principles of a restorative theory of justice, as one source puts it, is that "[t]hose most directly involved and affected by crime should have the opportunity to participate fully in the response if they wish." (5)
For example, one popular restorative justice practice, known as a "sentencing conference," involves a mediated face-to-face encounter wherein victims and offenders decide how the offender will repair the wrong. (6) The agreement almost always includes some form of compensation, be it a monetary payment to the victim, community service work, or even labor performed for the victim himself (e.g., a vandal might agree to clean the graffiti off the victim's storefront). Rehabilitation for the offender is also a common part of these agreements and it is often conceptualized as a form of repentance. The idea here seems to be that a wrongdoer who undergoes rehabilitation distances herself from the wrongful act. She transforms herself into the sort of person who is unlikely to commit such an act in the future.
Genuine repentance and amends, though, require more than the personal reform of the offender or the mere compensation for harm. They also require an acknowledgment of wrongdoing and a desire to repair this wrong on the part of the offender. (7) The sentencing conference, which requires offenders to face their victims and listen to their views, is designed to make offenders understand the moral nature of their actions. Offenders commonly apologize to victims, even when they are not directly asked to do so. (8) The sentencing conference also grants the offender a relatively high degree of autonomy in determining how she will make amends, what form her reparation efforts will take. This encourages offenders to view the making of amends as a project of theirs, and not merely a sanction of the state. Of course, there is no guarantee that offenders will offer reparations out of a moral motivation to repair the wrong. The coercive power of the state is always in the background. But restorative justice systems clearly view amends as the goal. More importantly, by granting the offender such an active and comparatively autonomous role in the process, they make it appear that the opportunity to pursue genuine amends is a significant interest of criminal offenders, and perhaps even a right. (9)
Many crime victims will find such intimate contact with their offenders unduly traumatic. Perhaps in response to this worry, Sayre-McCord presents an alternative system of reparations that does not involve the direct interaction of victims and offenders. Instead, he imagines offenders being sentenced to labor at various jobs, both inside and outside of prisons, and putting the proceeds into a general fund from which victims receive reparation payments. (10) In this scenario, offenders do not exert the sort of autonomy in making reparations that those who participate in sentencing conferences do. But the fact that the offender's own labor must be put to the task of reparation provides at least the outward form of an acknowledgment of wrongdoing. (11) All that is wanting is the proper motivation, which offenders must provide themselves.
Both of these proposals give criminals ample opportunity to make amends. But the question is whether criminal offenders, and wrongdoers in general, have a right to such opportunities. Would denying criminals the liberty to make amends amount to treating them unjustly? In the next section, I will present an argument for thinking that it would.
2.
While Sayre-McCord proposes a right to make amends that is an "addition to having a right to be treated as responsible moral agents," perhaps a right to make amends is better seen as a part of this latter right. To be a moral agent is to be the sort of being who is capable of judging right from wrong and choosing between them. This ability is, arguably, what makes human beings the valuable creatures that they are--creatures who may not be treated as mere means but who must be respected as ends in themselves. To be treated as a moral agent is to be treated in a manner that is in line with this value. So even when a moral agent has committed a crime or wrong, she may not be tortured, starved, or enslaved. We may not degrade this person because we must respect the fact that she is capable of moral action. This is the right to be treated as a moral agent that Sayre-McCord has in mind. But we can say more about the nature of moral agency. To be a moral agent is not just to be the sort of creature who can judge right from wrong in general, it is to be someone who can also judge that when she has committed a wrong, she has a duty to make amends. To say that a criminal deserves to be treated as a responsible moral agent is, in part, to say that she deserves to be treated as an agent with responsibilities. Her interest in fulfilling these responsibilities lies at the very heart of what it is to be a moral agent. For this...
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