Vol. 99, No. 1

Systemic Absolution

Shima Baradaran Baughman*
Criminal Justice, Criminal Law, Punishment
Articles

Introduction

Ancient religious tradition forms the bedrock foundation for the prevailing approach to criminal punishment. American criminal penal statutes are steeped in retributivism, which at its core requires punishment proportional to the crime committed—in other words, the Old Testament, lex talionis, or “an eye for an eye.”¹ Modern criminal statutes and prisons are largely set up to punish offenders who harm someone proportionate to the harm they caused, as determined by the legislature, often through incapacitation rather than corporal punishment.² Traditionally, corporal punishment was inflicted on the offender in proportion to the crime the person had committed.³ Historically, however, criminal tradition also involved a community coming together periodically to wipe the slate clean of crime, typically with a ritual involving a sacrifice.⁴ It was important for the community to join together to punish a person who committed a crime, so they would publicly gather to witness corporal punishment for individuals who committed serious crimes.⁵ But equally important was a communal ritual that periodically allowed society to collectively absolve itself of crime.⁶

This concept is one referred to here as systemic absolution, where society periodically and systematically cleanses or atones itself of the burdens of crime, offers forgiveness for offenders who have been punished, and allows the community to be reunified. Robin Steinberg, a prominent legal activist and founder of The Bail Project, based a wrongful conviction defense on an ancient Jewish scapegoat ritual symbolizing atonement.⁷ She explained that in Leviticus, a book in the Old Testament, “members of a community gather[ed] their sins and load[ed] them on the back of a goat. They then sen[t] the goat out into the desert, hoping to alleviate themselves of the burden and guilt of their failures.”⁸ Steinberg analogized to this ancient practice to instruct the jury that thousands of years ago, there existed a means for people to be freed of their crimes, hoping to “undo some hardwired biases and tap into the jurors’ sense of injustice.”⁹ This ritual allowed society to sacrifice one goat and allow all debts and crimes to be forgiven. Steinberg challenged the jurors to determine as representatives of the community that they were willing to shed the weight of a woman’s former conviction and allow her defendant to go free. This discussion of atonement and ancient Jewish ritual successfully won over a criminal jury, but its application might not be limited to a closing argument at trial. The modern corollary to the scapegoat ritual is the holy Yom Kippur Day of Atonement where, once a year, Jews collectively release the sins from the past year and ask for forgiveness to wipe the slate clean.¹⁰ Other cultural traditions incorporate the idea of atonement or tabula rasa, wiping the slate clean with periodic repentance and group sacrament rituals.¹¹ While criminal punishment today is loosely based on Law of Moses principles,¹² what is missing beyond punishment is a path towards systemic absolution.

Common in the Catholic faith, absolution is a term associated with forgiveness, or removing the weight of sin or crime.¹³ A person approaches a priest for absolution from a sin, and after prayer and repentance a person receives forgiveness from God for that sin.¹⁴ The absolution considered here is not a religious one but a systemic one, where society provides a formal release from punishment, offering relief to the person receiving it. While the concept of absolution has never been used in criminal law, criminal law has largely conceptualized punishment using religious philosophy. While there are some semblances of forgiveness in existence in modern criminal law, including clemency and pardons, they are used sparingly as political tools at the end of a presidential term to benefit select individuals, not having large-scale impact on many criminal defendants.¹⁵ Historically, though, criminal punishment and accountability have typically been accompanied by the concept of societal forgiveness, or absolution.¹⁶ Indeed, many cultures have had practices for both punishing and absolving people of crimes. Like under ancient Jewish law, corporal punishment was common when a crime or sin was discovered, but the scapegoat ritual periodically eliminated sin and crime, allowing reconciliation of the community.¹⁷ While many cultural traditions have provided a way for the community to absolve former crimes, there is no longer any societal mechanism to absolve society of crime.

While forgiveness and absolution have always existed privately for citizens and have even been used in limited ways by the executive branch, these concepts have not been conceptualized in broader structural ways. Since the 1500s, common law systems of criminal justice have had a prosecutor represent the “State” or “King” and bring crimes against it to court.¹⁸ The modern criminal justice system similarly considers any crime committed against an individual as a crime against the entire state.¹⁹ As such, an individual never decides to “charge” a case.²⁰ Rather, this decision is left to the discretion of the prosecutor who enacts justice for acts against the community or state.²¹ While our system of justice is based on what is best for society, our system of forgiveness or absolution is one considered only at the individual level (apart from dealing with criminal behavior), not collectively or systemically. An individual harmed by a crime may have the State bring his case to justice, but forgiveness of the crime only includes participation of the victim and the defendant.²² Restorative justice depends on both the victim and offender being willing and responsive to a process of unification and healing, which is not always the case. But the burdens of crime and incarceration are experienced not just by the victim and defendant, but by the community and society at large. And while restorative justice principles that bring the two together to resolve their conflict have yielded promising results, there has been no consideration of how to absolve crime from society structurally.²³

To date, few legal scholars have considered the role that forgiveness, or absolution, should play in criminal law. A few notable scholars have recognized that forgiveness can play a role between victims of crime and perpetrators in civil society.²⁴ The leading legal expert on forgiveness, Martha Minow, has encouraged expanded forgiveness in the law generally, which could strengthen faith in law and offer “wrongdoers a fresh start . . . [by] wiping the slate clean.”²⁵ Minow documents forgiveness as an important tool for international crimes, in bankruptcy practice, and with amnesties and criminal pardons.²⁶ Judge Stephanos Bibas has also encouraged a role for individual forgiveness but states that “forgiveness and mercy do not square easily with a state-centered system of criminal justice.”²⁷ Forgiveness in the law has taken various forms, such as altered or reduced consequences for wrongdoing, the use of discretion by legal officials,²⁸ judges choosing leniency,²⁹ and voluntary expressions of apology and forgiveness.³⁰ Individually, restorative justice interventions like financial restitution, community service or family group conferencing,³¹ or executive pardons,³² have all played a role in individual cases to prioritize restoration over punishment. Despite some small notable successes in individual forgiveness between victims and perpetrators,³³ these examples remain few and far between. And there is no one who has provided theoretical or historical backing for a doctrine of systemic absolution—a path for society to periodically eliminate the burden of crime. Though elements of forgiveness exist in criminal law, they operate individually, focusing on the individual offender and their crimes rather than broader systemic absolution that likely involves structural change.

At the same time, the U.S. criminal justice system has a reputation for being particularly punitive, as this nation is the most carceral nation in the history of humanity.³⁴ The American system of criminal justice is infamously harsher than any other in the world.³⁵ Mass incarceration is a societal menace that many have tried to address, and without significant change, it is inevitable for the foreseeable future.³⁶ Punishment theory is vigorous in U.S. statutory and legal practice, but there has not been an exploration of a societal absolution of crime as a tool in dismantling our carceral system. It would not be foreign to borrow principles from religion to learn how to better handle crime, as crime and sin have been intertwined historically; for example, adultery and sodomy were crimes until very recently.³⁷ Our communities also carry a heavy social, familial, and racial burden as a result of mass incarceration, so the time is ripe for deeper structural inquiry into the practice of systemic absolution.³⁸

This Article is the first to consider whether systemic absolution can be considered as the foil for the dominant punishment theory of retributivism, allowing punishment to be followed by a path to societal atonement through structural change. It considers whether historical communal forgiveness practices might guide modern criminal practice to expand structural forgiveness for society at large. As considered here, systemic absolution is forgiveness of crimes on a broader scale focused on societal restoration after crime, apart from the individual forgiveness that might involve singular victims and offenders. It is focused more on fostering societal renewal rather than renewal of any individual. After considering the existing forms of individual forgiveness in the criminal justice system, this Article explores the role of systemic absolution and whether any modern mechanisms could reenvision criminal justice to allow for large-scale restoration after crime. This Article considers three avenues: automatic periodic expungement, periodic sentencing reduction, and deferred adjudication. There is historical precedent for systemic forgiveness practices, which have been applied to create bankruptcy law to allow people who go into debt to avoid prisons and be reintegrated into the business community.³⁹ With systemic absolution, it might be possible to reduce mass incarceration through periodic automatic expungement of a criminal record, similar to a release of debts in bankruptcy. Recently, federal legislation has reduced sentences broadly for certain drug offenders or incarcerated individuals above the age of sixty,⁴⁰ both structural efforts to reduce incarceration, allowing society to absolve defendants of crime broadly. And finally, deferred adjudication is happening across the country where prosecutors choose to “defer” prosecution in certain cases; if the defendant complies with certain conditions, after a certain period the state will drop the case altogether. Expanding this practice and making it a default for many crimes would allow many to change and abandon crime without maintaining a criminal record. All these efforts are examples of what I would call “systemic absolution.”

Because this is the first Article exploring systemic absolution, much of this Article is exploratory, conceptualizing the virtue of forgiveness in the criminal arena, and laying the theoretical backing and historical precedent for applying systemic absolution more broadly. As such, this Article does not provide any one prescription for how to execute absolution in modern society, but it does review the places where forgiveness plays a role in criminal justice and considers structural expansion. First, with forgiveness as the bedrock principle underlying systemic absolution, Part I of this Article provides a general consideration of the impact of forgiveness on individual outcomes. It also outlines the arguments in favor and against the adoption of broader systemic forgiveness in criminal law. Part II of this Article sets forth the history of communal absolution in ancient religion and society and its potential application to cleanse the societal slate of former crimes. Part III contextualizes a new theory of systemic absolution: the broadly accepted (though rarely adopted) forgiveness practices already existing with constitutional and statutory backing, including clemency, pardons, and expungements. The nature of this Article is exploratory and, while it does not provide a prescription for adopting systemic absolution, Part IV of this Article briefly considers how the justice system could consider systemic absolution in three areas: statutory sentencing relief, automatic expungement, and deferred adjudication, which might alleviate America’s endemic incarceration problem.

I. Conceptualizing Forgiveness in Criminal Justice

Forgiveness is best conceptualized as a conscious decision to give up a legitimate grievance against one who has caused harm.⁴¹ It is less about foregoing punishment, and more about eliminating “resentment and blame.”⁴² Forgiveness has traditionally been conceptualized as an individual matter between a victim and offender, considering the victim as the only one who can forgive. Many have analyzed the relationship between criminal offenders, their victims, and their affected communities.⁴³ But crimes can also be conceptualized as an offense against society itself—which is why the state takes on the prosecution. Under this framework, there is also an opportunity (and responsibility) for society to forgive criminal offenders through structural change. An absolution framework can provide broader structural solutions to alleviate the incarceration crisis along with communal burdens caused by crime.

Forgiveness at the victim level has real benefits both for the offenders and the victims themselves. Admitting guilt and moving on may lighten the “burden of guilt” for offenders, helping them in the next phase of their lives.⁴⁴ And victims are able to choose whether they let go of anger, grief, or sorrow. This can help them heal. And providing victims the choice to forgive or to not can empower them and help them regain a sense of agency after being harmed.⁴⁵ Policies that help the offender make amends and right the wrong and give space for the victims to choose to forgive promote this principle.

While individual forgiveness is critical, a consideration that has been missing in public dialogue is how to incorporate absolution into the structure of criminal justice. The American criminal justice system, known to be overly punitive, focuses on harshly punishing a few offenders who are caught. Policies that add to a retributive paradigm—that allow a path towards absolution—help a society relinquish a legitimate grievance and choose leniency when appropriate or allow redemption after punishment. Before shifting to collective forgiveness or absolution, Part I.A. considers more carefully the definition of forgiveness as well as the impacts of individual forgiveness, including the health and physical benefits. Part I.B considers arguments in favor of and against using the principle of forgiveness in criminal justice policy.

A. Individual Forgiveness in Criminal Justice

Providing a working definition of individual forgiveness, as opposed to societal or systemic forgiveness, lays a groundwork for later exploration of systemic absolution. Forgiveness involves “letting go of negative affect and motivations toward revenge or retaliation, despite an entitlement to such feelings.”⁴⁶ The repentance of the offender often encourages forgiveness, but is not a requirement for the victim to forgive.⁴⁷ For the victim, forgiveness requires forswearing revenge, moderating resentment, committing to letting go of lingering resentment, revisioning the wrongdoer, reframing one’s view of self, and communicating to the offender that forgiveness is granted.⁴⁸ The act of forgiveness does not necessarily make the crime go away in the victim’s eyes, but can allow them to see the perpetrator as a human and allow the victim and offender the possibility of creating a relationship.⁴⁹ While the law primarily seeks to adjudicate the past, forgiveness is forward-looking, and enlarges future possibilities.⁵⁰ Forgiveness should not be confused with acts that merely reduce animus, such as letting go, forbearance, or turning the issue over to God.⁵¹ Moreover, forgiveness is distinguishable from other responses to wrongdoing such as justification, excuse, mercy, and reconciliation.⁵² Forgiveness does not justify the conduct, does not excuse the wrongdoer as somehow not fully responsible, is more personal than mercy, and stands wholly apart from reconciliation. The distinction between systemic forgiveness and reconciliation or mercy is important. For systemic absolution of crime, there is no requirement that individual offenders are remorseful, that victim and perpetrator have reconciled, and it does not remove the role of punishment. Absolution, or forgiveness, plays a unique role in cleaning the slate for society of the burden of crime.

Studies demonstrate that individual forgiveness provides a multitude of psychological, physiological, and social benefits: reduced negative emotions, improved mental health, lower stress responses, less physical pain, and better relationships.⁵³ Evidence links forgiveness to overall better physical health.⁵⁴ Researchers believe that the physiological stress response of interpersonal conflict strains our health systems, but forgiving an offender breaks the cycle of negative thoughts and stress, thereby improving various indicators of health.⁵⁵ Perhaps most importantly, forgiveness is associated with greater happiness.⁵⁶ While there are clear health benefits to forgiveness, the adverse health consequences of unforgiveness may be more substantial.⁵⁷ But the individual harms of unforgiveness can be experienced by society, particularly within communities affected most by crime and incarceration. Moreover, while societal happiness is difficult to measure, systemic absolution might have some broader healing benefits.

B. Should Forgiveness Have a Role in Criminal Justice?

Despite the benefits of forgiveness, some scholars suggest that forgiveness may have no place in criminal law. Some believe forgiveness may be inappropriate in cases of remorseless offenders, victimless crimes, victims unwilling to forgive, or where there is disagreement among victims in multi-victim crimes.⁵⁸ Because forgiveness cannot be forced, forgiving individual offenders may also introduce dangers of inequality and discrimination, because victims and society may be less willing to forgive people of certain races or of certain socioeconomic status.⁵⁹ Moreover, some may argue that forgiveness does not serve the traditional justifications for punishment—undercutting retribution and deterrence.⁶⁰ Forgiveness of an offense can increase the likelihood of abuse and repetition of transgressions, for instance in domestic violence situations.⁶¹ Some feel that it is safer to err on the side of tough and inflexible punishment because the benefits from incarceration are immediate, certain, and concrete, while the benefits of forgiveness are “longer-term, squishier, and more speculative.”⁶²

On the other hand, scholars like Martha Minow have suggested that the U.S. should consider a more liberal use of “forgiveness mechanisms” in the criminal justice system.⁶³ Minow makes clear that she is not advocating for an elimination of punishment. In fact, the idea that wrongdoing deserves and requires punishment seems to be a universal and fundamental belief, accepted across history and human civilizations, and even evident in very young children and animals.⁶⁴ All attempts at establishing no-punishment communes have failed, or have only survived by adopting enforcement systems.⁶⁵ Communities absent of law, such as gold rush camps or concentration camps, typically adopted their own vigilante systems or practiced prisoner justice, exemplifying our natural inclination towards punishment.⁶⁶ Minow acknowledges that some wrongs may seem unforgivable, and to advocate for forgiveness for genocides and murders “can seem an insult to both victims and survivors.”⁶⁷ Indeed, one study found that offenders who commit high-severity crimes are perceived as unlikely to be rehabilitated.⁶⁸

Despite these findings, Minow argues that making greater use of forgiveness mechanisms is an important part of criminal justice and can help alleviate our country’s mass incarceration problem.⁶⁹ Minow argues that lawyers and other officials “do not adequately use the tools of forgiveness” in criminal law and argues for their expansion.⁷⁰ Forgiveness in criminal law could shift away from the narrow focus on a specific violator and victim to a wider lens that looks at broader patterns to increase fairness for all.⁷¹ She advocates for potentially expanding existing practices like apology, restitution, and forbearance from the law’s most stringent demands.⁷² It might be time to reinvent criminal law as many criminal law systems have lost credibility with their communities due to their reputation for harshness⁷³ and their uneven application of justice.⁷⁴ Introducing mechanisms of forgiveness more broadly into criminal law could help combat unfairly harsh laws or overly punitive prosecutors.⁷⁵ Forgiveness encourages the full reintegration of a convicted person into society, alleviating the collateral consequences and stigma of conviction.⁷⁶ Moreover, forgiveness may have broader benefits that allow greater healing not just for the offender or victim, but for the community in general.⁷⁷ Systemic absolution could create similar benefits as individual forgiveness if it were accepted into criminal practice. The dominant theory of punishment is retributivism, which includes little in the way of absolution of crime, rehabilitation, or a structural path towards clearing the slate of crime. The next Section provides background on the historical importance of individual and communal absolution to contextualize forgiveness as an important societal practice, which aids in creating a comprehensive criminal punishment theory that includes absolution.

II. Individual Forgiveness and Communal Absolution in Religious Tradition

Religious principles have always influenced criminal punishment theory.⁷⁸ Covenant principles⁷⁹ form the roots of the leading criminal punishment theory (retributivism) and dominate criminal philosophy, criminal statutory principles, and even prison administration.⁸⁰ In simple terms, retributivism requires that a person be punished proportionately given the exact nature or harm of their crimes—a figurative eye for an eye, at least in value.⁸¹ It is not until after an offender has been punished appropriately for their crime that they should be released.⁸² Criminal statutory practice and punishment are dominated by desert and punishment without an avenue for societal forgiveness or growth. The absolution theory proposed here has its roots in religious traditions that create a more unified community through cleansing society of wrongs.⁸³ Restorative justice has its place and can be extremely effective when both parties are inclined towards a resolution, but this often is not the case. In many cases, one side would like to make amends, but the other side is unwilling. But since crimes are committed against society, could there be systemic absolution to restore society after harm is caused?

Forgiveness traces its roots back to influential world religions. Forgiveness considers restoring relationships after sin or crime and is a fundamental part of all major religions. These individual traditions of forgiveness provide a foundation for considering communal forgiveness or absolution as discussed in Part II.A. Then, Part II.B considers absolution in religious contexts and considers its application to criminal justice.

A. Individual Forgiveness in World Religions

There are foundational teachings about forgiveness in all the world religions, but this Section provides a very brief overview of these teachings in Christianity, Islam, Judaism, and Hinduism as they pertain to forgiving crime. This Section focuses on individual forgiveness, or receiving forgiveness from God for wrongs committed.

The concept of forgiveness might be most central to Christianity.⁸⁴ Instances of forgiveness are plentiful in the New Testament, from the forgiveness of the adulterous woman, the prodigal son parable, the Sermon on the Mount, the Lord’s Prayer, and Jesus’s forgiveness of those who crucified Him.⁸⁵ As it relates to forgiving criminal offenses, Jesus Christ specifically says to the criminal defendant hanging next to him on the cross, “[t]o day shalt thou be with me in paradise,” insinuating that forgiveness is possible even for criminals and potentially even beyond the grave.⁸⁶ Christian rituals, such as baptism and Holy Communion, are fundamentally rooted in individual forgiveness.⁸⁷ Christianity often urges that forgiveness must be offered unconditionally, as an act of grace, and without regard to the punishment or remorse of the offender, which may seem irreconcilable with conceptions of retributivism.⁸⁸ Christian forgiveness is predicated on the unconditionality of God’s love, and this kind of unconditional forgiveness serves as an ideal in the life of the believer.⁸⁹ Although Jesus preached that people should repent, Christian forgiveness requires forgiving even the unrepentant.⁹⁰ While some argue that the New Testament presents forgiveness as a desirable virtue but not a mandatory duty,⁹¹ forgiveness, including of crimes, is a key part of an individual’s journey to becoming more like Jesus Christ.

Islam views forgiveness as an important virtue practiced by the Prophet Mohammed that Muslims should emulate.⁹² The Prophet Mohammad teaches by example to seek God’s forgiveness three times after completing his prayer,⁹³ and he specifically asks for forgiveness for his enemies.⁹⁴ However, Islam does not advocate for unconditional or absolute forgiveness, and does not require forgiveness before justice or punitive measures are implemented.⁹⁵ The Quran explains that divine forgiveness is possible even for serious offenses, but an offender should never take forgiveness for granted even if he expresses repentance because it is a decision for Allah.⁹⁶ However, Islamic texts emphasize that interpersonal forgiveness is more virtuous than vengeance, even if retaliation is permissible under the circumstances.⁹⁷ A study of the motivations to forgive among Moroccan Muslims found that their religious values were their primary motivation to forgive others.⁹⁸ In Islam, tawba is the repentance process,⁹⁹ in which an individual feels guilt about past sins, engages in righteous acts that the sin prevented them from doing, recompenses those that they wronged, asks forgiveness of those that they wronged, resolves to avoid the sin in future, and continues in obedience to God.¹⁰⁰ The tawba is reminiscent of restorative justice principles currently in place in criminal policy, and the focus on the Prophet’s forgiveness of enemies is reminiscent of the Christian dictates to forgive all. A foundational virtue in Islam is forgiveness—though not mandated, it is highly admired if a person can forgive someone for a crime committed against them.¹⁰¹

Judaism places emphasis on individual forgiveness, repentance, and atonement, and is particularly influential when it comes to retributivism, which continues to dominate criminal punishment theory.¹⁰² Every year, ten days are set aside between Rosh Hashanah and Yom Kippur, or Day of Atonement, to repent.¹⁰³ This period is called teshuva (meaning return).¹⁰⁴ During this period, Jews ask forgiveness of others and engage in acts of service.¹⁰⁵ On the Day of Atonement, Jews ask God for forgiveness in prayer, sometimes in synagogue.¹⁰⁶ The Mishnah, or oral Torah, recognizes that an injury to another person results in two harms: a material harm, which is rectified through monetary compensation; and a more intangible injury, which can be remedied only through seeking forgiveness.¹⁰⁷ In Judaism, teshuva is the process of making amends; it includes a full return to the right path, and restoration of good standing with the community and with God.¹⁰⁸ The concept of return means that the sinner abandons his sin, removes it from his thoughts, resolves to not do it anymore, expresses remorse for the transgression, and makes an oral confession and apology.¹⁰⁹ After the offender undergoes the process of return, the victim is required to forgive, even when the wrong can never be fully righted.¹¹⁰ A victim may choose to forgive even without the offender’s repentance but is not obligated to do so in Jewish tradition.¹¹¹ Judaism does not definitively resolve the issue of whether certain individuals do not deserve forgiveness, but it does emphasize the belief that people can change for the better and must be given the opportunity to do so.¹¹² The Jewish faith also includes rituals of communal absolution discussed in the next Section which will allow us to consider these principles in how they might create a more comprehensive criminal justice policy that includes not just retribution but also atonement.

Other religious traditions, Hinduism and Buddhism, include foundational teachings in forgiveness. Buddhism handles forgiveness through ritual confession.¹¹³ Because the end goal of Buddhists is the cultivation of inner peace and enlightenment,¹¹⁴ the purpose of confession and forgiveness is to develop personal virtues such as responsibility and patience.¹¹⁵ Buddhism also upholds a model of forgiveness in its call to relinquish bitterness and resentments.¹¹⁶ One of the six perfections of Buddhism, forbearance or patience, corresponds closely to forgiveness and represents “a virtuous response to harm brought upon oneself by the conduct of another.”¹¹⁷ In the Dhammapada, the Buddha warns against hostility and advises that “[h]atred is never appeased by hatred in this world. By non-hatred alone is hatred appeased.”¹¹⁸ Similarly, Hinduism’s sacred texts describe multiple incidents of divine forgiveness.¹¹⁹ The Mahabharata, one of two Sanskrit epics revered in Hinduism, even features an important “hymn of forgiveness.”¹²⁰ The scripture further recommends forgiveness (ksama in Sanskrit) as one of several “divine qualities” to which a spiritually-minded person should aspire.¹²¹ Both Buddhism and Hinduism focus on the importance of forgiveness as a divine virtue to cultivate, even for those who harm you.

Christianity places the strongest emphasis on forgiveness, teaching unconditional forgiveness even in the absence of remorse and reparation.¹²² Judaism commends forgiveness, but focuses on the conduct of the wrongdoer who must make amends to earn forgiveness.¹²³ Islam commends unconditional forgiveness as virtuous, but does not require it.¹²⁴ Buddhism and Hinduism both elevate forgiveness as a divine trait. While principles of forgiveness are important in many key world religions, the concepts of individual absolution through a neutral person, like a priest, or community absolution are found in Christianity as described below.

B. Christian Individual Absolution

To better theorize criminal punishment and absolution, a greater understanding of the religious doctrines of absolution is instructive. The word “absolution” comes from the Latin absolutus, which means to “set free,”¹²⁵ and the concept of absolution is fundamental to various Christian faiths. Absolution in the religious context involves a neutral party offering forgiveness, which is not focused between a victim and offender, or a victim and God like in many other faiths. In Catholicism, priests grant absolution, or forgiveness, to the penitent as outside observers providing forgiveness for a wrong.¹²⁶ This concept is called the “sacrament of Penance,” one of the seven sacraments of the Catholic faith.¹²⁷ Catholics believe that, upon receiving this sacrament, they are free from mortal guilt and eternal punishment.¹²⁸ In this process, church members confess their sins to the priest, and the priest then absolves the person from their sins “in the name of the Father, and of the Son, and of the Holy Spirit.”¹²⁹ In an absolution rite, a priest is a proxy for God allowing a person to be forgiven for a wrong.¹³⁰ The first step in a system of absolution involves allowing a neutral party to provide absolution—a person unaffected by the crime who assists in the atonement process.

Absolution, in the religious context, allows an individual to have wrongs removed from their life so that they can move forward, reconciled with God and their community. Part II.C defines and discusses the concept of communal absolution of sin or crime in world religions.

C. Communal Absolution in World Religions

Many world religions rely on forgiveness and mercy towards transgressors as a foundational value.¹³¹ Communal absolution describes when a group of people are unburdened of crime or sin and has its roots in the world’s largest religions.¹³² This Section defines a new concept, “communal absolution,” which considers cleansing and reunification with society after a defendant is held accountable for a crime. Communal absolution—as defined here—considers crime as an act that afflicts a community and considers a societal forgiveness and letting go of the crimes that have afflicted some of its members. This is a precursor to “systemic absolution,” discussed in Parts III and IV, which is applicable to a society that has grown more complex and could serve as the modern corollary to communal absolution.¹³³ This Section considers communal absolution practices important to understanding the religio-cultural backgrounds existing for crime.

While this emphasis on individual repentance and forgiveness is highly influential in many faiths, the communal cleansing and atonement rituals that have existed in many faiths historically provide parallels for communal absolution. For instance, in the Catholic and Lutheran faiths, priests are permitted to perform “general absolution” to groups of people in emergency circumstances in which individual, private confession would be impossible.¹³⁴ These, along with ancient cleansing rituals, provide the groundwork for considering communal absolution of crime today. Understanding communal absolution opens the door for creating a comprehensive criminal theory that considers reunification, or cleansing after crime.

Communal Cleansing Rituals

Various ancient Near Eastern societies participated in community cleansing rituals in which freeing animals into the wilderness marked the absolution of crimes or purification of a community, as precursors for the Jewish scapegoat ritual.¹³⁵ The exact origins of these rituals are contested among Ancient Near Eastern scholars, but the earliest of this type of rite was likely performed in Ebla (now Syria) in the 24th century BCE.¹³⁶ The Eblaite ritual took place before a wedding, when the house was purified by putting the imperfections of the home on a goat and sending it away: “We purify the mausoleum before the entrance of (the Gods) Kura and Barama. A goat, a silver bracelet (hanging from) its neck, towards the steppe of Alini we let it go.”¹³⁷ Similarly, the Hittite people performed a ritual that involved sending away a ram to purify a community.¹³⁸ Like the goat that was sent away in the Eblaite ritual, here a ram was “sent away to the land of the enemies and offered to the hostile deity who caused the pestilence.”¹³⁹ There are several other Ancient Near Eastern societies who also performed similar rituals with animals being sent away to cleanse a community.¹⁴⁰

Likely drawing from earlier societies, the ancient Israelites started performing a ritual that is described in the Bible and has come to be more commonly known as the “scapegoat” ritual. Performed in preparation for Yom Kippur, this ritual is explained in the book of Leviticus, where Aaron cast lots over two goats: one that will be sacrificed, and one that carries the sins of the community into the wilderness.¹⁴¹ The name Azazel is given to the goat that is sent away.¹⁴² To transfer the sins, Aaron laid his hands on the goat’s head and “transfer[red] the transgressions of the Israelites to it,” so the Israelites could “openly and honestly hav[e] the goat remove their[] [sins].”¹⁴³ The Azazel goat was then led to a desolate part of the wilderness, which marked the absolution of “crimes and sins.”¹⁴⁴ The goat served as a “medium of atonement . . . and forgiveness” when performed by the Israelites.¹⁴⁵ While important for many years, the scapegoat rituals lost significance in Jewish practice in 70 CE.¹⁴⁶ However, these absolution concepts transformed into individual forgiveness through prayer and personal repentance associated with Yom Kippur.¹⁴⁷

Other societies also adopted and modified forms of the Hittite, Eblaite, and Jewish rituals, but sent away humans instead. For example, the Ancient Greeks adopted a similar form of the Hittite ritual using human sacrifices called pharmakos rather than animals.¹⁴⁸ For the Greeks, the “scape-person” represented the “evil that is being expelled.”¹⁴⁹ However, the Greek pharmakos ritual was performed for the purpose of stopping plagues, not absolving sins.¹⁵⁰ The scapegoat rituals also influenced the ancient Romans, who had a ritual in which army “commander[s] could offer a common soldier to die for all.”¹⁵¹ Like the Greek pharmakos ritual, the Roman ritual sacrificed humans instead of animals. While for different purposes, the Jewish ritual demonstrates the far-reaching, long-lasting effect of these rites in which communities can be cleansed by letting something go.¹⁵² Communal absolution practices found in Jewish, Greek, and other ancient societies provide important examples for how a society can cleanse itself from crime. The next Section discusses the change from ritual absolution to a year of absolution in which all wrongs, crimes, and debts were eliminated every fifty years.

Periodic Absolution Practices

Another influential practice, jubilee, is interesting to consider for modern criminal purposes. Serving as another communal absolution ritual, it underscores the importance of community cleansing of crime and sin in a periodic manner.

The Jubilee year represents how the forgiveness and cleansing of past wrongs permeate community ideals. The Jubilee year, which is outlined in Leviticus 25, demonstrates the role for which forgiveness began with Israelites and has since been adopted by Christians. Leviticus 25 instructed the Israelites to observe practices that marked a time when injustice was corrected and justice reestablished.¹⁵³ Jubilee consisted of slave release, debt release, restoration of land to original owners, and other restoring practices; it took place every fifty years.¹⁵⁴ In releasing slaves and debtors and restoring land, the Jubilee “sought to be an institution of sweeping social reform” for the Israelites.¹⁵⁵ It is unclear whether the Ancient Israelites actually ever put the ideas of the Jubilee year into practice, but the message of forgiveness the Jubilee year carries nonetheless impacted their society,¹⁵⁶ and has spread in Christianity as a practice still common among Christians.¹⁵⁷ The Jubilee year serves as a model in considering periodic release of injustices and public wrongs to create a more just society. As a criminal corollary, considering a release of criminal records or adjustment of criminal sentences provides a modern application to these principles that have had import in various ancient contexts.

The idea of communal absolution played a fundamental role in ancient Israel and provided a bedrock foundation for Greek and Roman civilizations. These ancient practices also influenced early American history, providing further support for considering systemic absolution in modern criminal justice.

Communal Absolution in American History

Communal absolution, or atonement rituals like the scapegoat and pharmakos ritual, have corollaries in American history. Group absolution rituals manifest in early colonial culture in several ways. Scholars have stipulated that prosecution of colonial “witches” in the eighteenth century “function[ed] . . . as a scapegoat ritual that served to rid the community of undesirable elements.”¹⁵⁸ Like the goat that was exiled from the Israelite community to purify and remove sin, here witches were also removed from early American colonial communities with the hope that the community would be purified. The scapegoat ritual has also served as an archetype in early American literature, with many prominent authors, including Mark Twain and William Faulkner “indicat[ing] varying attitudes toward and understanding of sacrificing a victim to banish guilt.”¹⁵⁹ Even the Thanksgiving turkey has been argued to serve as America’s symbol of a scapegoat.¹⁶⁰ Dr. Karen Davis, president of United Poultry Concerns, explains how when we kill and eat turkeys on Thanksgiving, they “function[] as . . . bearer[s] of impious sentiments,” just like the scapegoat bore the Israelites’ impurities and sins.¹⁶¹ Davis and others have connected the yearly presidential pardoning of a Thanksgiving turkey to the Israelite tradition, calling the pardon an “inverted scapegoat ritual,”¹⁶² in which “[t]he pardon therefore performs the same basic function as the scapegoating ritual . . . although instead of one special victim being scapegoated, every animal except for one special non-victim is scapegoated.”¹⁶³ Communal absolution, like the scapegoat ritual, provides the framework for modern criminal justice to embrace forgiveness of crimes.

Criminal absolution considers a communal forgiveness for offenders who collectively, as society determines, are set free from their past crimes and are permitted to rejoin society with similar rights as other citizens (after they have been properly held accountable). Communal absolution, or group cleansing of past wrongs, has corollaries in U.S. and world history and has the potential to transform our criminal justice system. Before introducing the concept of systemic absolution in criminal practice, the next Section considers the underutilized forms of absolution already existing in a punitive U.S. criminal justice system, though not recognized as such.

III. Forms of Absolution Existing in Criminal Justice

The American criminal justice system is overly punitive with little opportunity to remove the permanent stain of crime.¹⁶⁴ The United States incarceration rate is about “five times higher than the rest of the world.”¹⁶⁵ The roughly 2.3 million people incarcerated in American jails and prisons cost the state about $80 billion a year.¹⁶⁶ Scholars have increasingly argued that the “main driver of [this] mass incarceration” is not the imprisonment of drug and other nonviolent offenders, but the “over-sentencing of people for serious and violent crimes.”¹⁶⁷ Indeed, much of the “prison boom” of the latter 20th century can be traced back to increasingly punitive sentencing.¹⁶⁸ There is not one culprit or crime, but instead a “broad shift toward more punitive treatment for offenders in every major crime category,” both state and federal.¹⁶⁹ And while Americans’ societal attitudes toward crime are more punitive than some Western democracies, the country still has significantly longer sentencing than countries that are culturally similar.¹⁷⁰

There are existing forms of forgiveness in criminal justice, though they have not been articulated as such or relied upon extensively. In creating a more comprehensive punishment theory, there should be consideration of absolution after retribution, restorative justice, or incapacitation. This Section lays the groundwork for what already exists. The most common forms of absolution in criminal justice include sentencing and charging reduction efforts, expungement, and clemency. Part III.A discusses sentencing and charging reduction efforts including specific charging measures, deferred prosecution in Part III.A.1 and III.A.2, and safeguarding judicial discretion. Part III.B.1 and III.B.2 discuss automatic expungement through clean slate legislation. Finally, Part III.C discusses clemency and pardons. While these latter types of absolution have not been implemented broadly or institutionally, they demonstrate constitutional and statutory precedent for forgiveness in criminal justice and provide a place for broader implementation of systemic absolution in our system. Each type of absolution is discussed below as it currently exists with some considerations on how it can be expanded to systemic absolution.

A. Sentencing and Charging Revision

Sentencing and charging revision provide the largest-scale impact for systemic absolution. Regularly reassessing punitive measures enables society to move past transgressions, fostering unity and healing. In reevaluating sentencing and charging practices, it is important to recognize that punitive sentencing is a recent development in federal and state legislation over the past forty years.¹⁷¹

The criminal justice system currently uses sentencing and charging revisions to offer some measure of absolution to convicted individuals, though they are not articulated as such. Three programs—second look resentencing, deferred adjudication, and restoring judicial discretion—are discussed in greater detail below. Second look laws resentence offenders based on age, type of crime, or behavior in prison. Deferred adjudication is a common practice in some jurisdictions that allows prosecutors to delay or suspend a criminal case—usually for first-time or low-risk offenders—with the understanding that the charges will be dismissed if the individual avoids reoffending. In essence, it serves as a form of conditional forgiveness for those whose prosecution would not meaningfully serve justice. When used systematically, deferred adjudication enables prosecutors to postpone cases where formal charges are unnecessary to achieve a fair or effective outcome. Finally, restoring judicial discretion by eliminating mandatory minimum sentencing laws or determinate sentencing could reduce automated punitiveness and allow individuals to receive individualized sentences and allow for rehabilitation or change in prison. These three approaches provide systemic shifts towards absolution in criminal justice and are discussed in order below.

Second Look Resentencing

Expanding second look resentencing is one approach to expanding systemic absolution. Current criminal practice limits a second look at sentencing to cases with extraordinary and compelling reasons, but a true categorical second look provision would allow automatic periodic review after a certain period—such as after five years of imprisonment—where all prisoners would receive an opportunity to evaluate their sentences. Expanding second look resentencing requires an indeterminate sentencing system, discussed in Part III.A.3, in which sentences could be reduced based on rehabilitation and progress made by the inmate behind bars. Shon Hopwood urges that a second look provision should include all offenders, including those convicted of violent crimes and sex offenses because the best incentive to participate in recidivism-reducing programs¹⁷² such as behavioral therapy, is the incentive of early release, in addition to the fact that such programs have been very successful with low recidivism rates.

In many cases, it is difficult to identify which defendants have the capacity for rehabilitation and redemption at the sentencing stage, so the justice system needs an avenue for decisionmakers to take a second look at individual cases.¹⁷³ Second look laws provide a way to reduce the sentences of those who received excessively punitive punishments or who have demonstrated rehabilitation.¹⁷⁴ Moreover, second look resentencing can lower the chances of recidivism, ameliorate race-based sentencing disparities, and alleviate harm to family members.¹⁷⁵ It can also provide a systemic way to reduce prison populations and the financial costs of incarceration.¹⁷⁶ For the offender, resentencing also provides a sense of redemption and a recognition of their efforts towards rehabilitation.¹⁷⁷ Second look resentencing recognizes, values, and encourages absolution and

transformation, and has vast support from faith communities—who can be integral in motivating change from inside prisons.¹⁷⁸

Second look resentencing can provide systemic absolution, without harm to public safety, when conducted with consideration of empirical data on crime and punishment. First, studies show that long sentences do not deter crime, but rather it is the certainty of punishment which most effectively deters crime.¹⁷⁹ Moreover, offenders tend to age out of crime, as research indicates that even among chronic offenders, most will cease committing crimes by their forties.¹⁸⁰ This remains true for those convicted of violent crimes, including homicide; in fact, violent offenders who are older at release tend to have lower recidivism rates relative to other offenders.¹⁸¹ For these reasons, those serving long prison sentences, older offenders, and even violent offenders should be considered for periodic resentencing.¹⁸² Excluding violent offenders from second look sentencing programs eliminates the majority of the prison population from access to these programs. Currently, nine states—California, Colorado, Connecticut, Illinois, Louisiana, Minnesota, New Mexico, Oregon, and Washington—and D.C. have enacted second look laws.¹⁸³ Second look laws authorize judges to revisit long sentences after substantial time served and reduce them when the person no longer poses a risk or when the punishment is out of step with current sentencing standards.¹⁸⁴ At the moment, thirty-seven states have pending legislation to reduce overly long sentences.¹⁸⁵ Many states have passed legislation that sentences between 40 and 120 years are unconstitutional and thus the trend is moving towards change in this area.¹⁸⁶ Broader adoption of state laws that prohibit sentences beyond forty years and adjusting state sentencing schemes towards indeterminate sentences that allow for adjustment after five or ten years provide incentives for individual rehabilitation and allow for periodic adjustment of sentences in systemic absolution. Federal legislation, like the First Step Act of 2018, has also worked to reduce federal prison populations through reducing sentences for those with good behavior in prison.¹⁸⁷ Also, analysis on the First Step Act, six years after its implementation, has shown that inmates released under the Act showed lower recidivism rates and served less time than those released before the Act was passed.¹⁸⁸ Other legislation has allowed federal judges to reduce drug sentences when appropriate and depart from federal guidelines.¹⁸⁹

Reconsidering the terms of sentences periodically after their initial imposition and eliminating indeterminate sentencing practices are both ways to allow for systemic absolution of crime. While recognizing the importance

of criminal accountability and punishment, these changes recognize that people can change and that cultural shifts might allow many sentences to be reduced to remove the societal burden of incarceration.

Deferred Adjudication

Deferred adjudication provides another avenue whereby defendants may have their sentences diverted and thus receive absolution from the criminal justice system.¹⁹⁰ Deferred prosecution agreements (“DPAs”) enable a defendant to avoid prosecution, maintain a clean record, and move towards rehabilitation.¹⁹¹ When making a DPA, a prosecutor delays criminal charges and instead sets conditions for the defendant to follow under the government’s supervision.¹⁹² Defendants are not prosecuted unless they fail to comply with the conditions set forth. Similar to DPAs, a deferred sentence offers a defendant probation instead of conviction if they complete certain steps toward rehabilitation.¹⁹³ However, the defendant must first plead guilty, and that plea will remain on their record.¹⁹⁴ These alternatives to prosecution shift the focus from punishment to rehabilitation and spare defendants the often-debilitating collateral consequences of conviction.¹⁹⁵ Indeed, many individuals who have been convicted experience unemployment, exclusion from society, and a tarnished reputation and communities suffer with families separated.¹⁹⁶

Not only does broadening deferred adjudication help create systemic absolution, but it may also benefit the public by lowering recidivism rates. Some studies have shown that offenders receiving suspended sentences or probation are less likely, or at least not more likely, to reoffend than those who are sentenced to prison.¹⁹⁷ Additionally, DPAs and deferred sentences are far more cost-effective than confinement.¹⁹⁸ All fifty states have codified DPAs in some capacity, although most states place limits on the type of defendant and offense to which they can be applied.¹⁹⁹ Despite the many benefits of DPAs, research demonstrates that they are still used in less than a quarter of cases and could be a useful way to increase systemic absolution.²⁰⁰ Currently, prosecutors must justify declining to prosecute a case rather than bringing charges. This assumption could be reversed,²⁰¹ and deferred prosecution could be employed as the default for crimes that do not pose a threat to public safety, or where other options exist for holding criminal defendants accountable, such as mental health or drug rehabilitation. With broader use, deferred adjudication could serve a crucial role in curbing mass incarceration and offering absolution with a second chance.

Safeguarding Judicial Discretion

In the last fifty years, sentencing changes were made intending to make punishments both more severe and less determinate, and less subject to judicial discretion.²⁰² This provided judges and parole boards with less control and fewer opportunities for rehabilitation to reduce sentences.²⁰³ A major consideration in creating room for absolution is a shift toward indeterminate sentencing, allowing judges and public executives the opportunity to adjust sentences where appropriate. Another approach could be eliminating mandatory minimum sentences.

Some criminal actions have mandatory minimum sentences that judges must impose on convicted individuals. For example, Aguilera-Mederos was a truck driver who lost control of his truck on a Colorado highway, resulting in the death of four people.²⁰⁴ While some of his actions may have been reckless, the crash was unintentional and Aguilera-Mederos was repentant, begged for forgiveness, and complied fully with police.²⁰⁵ Because of the mandatory minimums required by law, the judge reluctantly handed down the required sentence of 110 years in prison.²⁰⁶ In Aguilera-Mederos’ case, the governor commuted his sentence to ten years, recognizing the injustice of the long sentence.²⁰⁷ However, convicted persons cannot rely on a rare pardon. The ABA has long opposed mandatory minimum sentencing and has urged Congress, as well as state and territorial legislatures, to repeal laws requiring minimum sentences.²⁰⁸ Although mandatory minimums were an attempt to address inequities, they now seem to be the source of punitiveness and an unnecessary enhancer of mass incarceration.²⁰⁹ Eliminating mandatory minimum sentences would improve fairness in sentencing as well as systemic forgiveness for many who are punished harshly in the criminal justice system. Federally, the Smarter Sentencing Act has been proposed several times, including as recently as 2023, to eliminate mandatory minimums for federal drug sentences.²¹⁰ Allowing judicial discretion and removing legislative hurdles and determinate sentencing would increase the potential for systemic forgiveness in the criminal justice system.

B. Automatic Expungement

Nearly one out of every three American adults has a criminal record, and nearly half of American children have a parent with a criminal record.²¹¹ The overwhelming majority of these individuals have never been imprisoned.²¹² Yet, they often suffer the consequences of carrying a criminal record for the entirety of their lives.²¹³ The traditional option for relief, expungement or sealing of records, is far from accessible.²¹⁴ Studies show that expungement both has positive real, measurable effects and is heavily underutilized.²¹⁵ In fact, the authors of one recent study suggest that only 6.5% of individuals receive expungements within five years of becoming eligible.²¹⁶ Many factors contribute to this low usage, chief among them perceived ineligibility, administrative hassle, monetary costs, and lack of information.²¹⁷ Thus, even individuals that legislatures have already deemed worthy of forgiveness often still do not obtain clean records.

Expungement allows a clearing of a criminal slate, and with analogy to bankruptcy can parallel ancient scapegoat rituals in clearing the societal criminal slate of debt and crime. A broader pact of expungement among states or a federal expungement scheme might be considered to expand systemic absolution. As it stands, once an individual commits a crime, they continue to be punished with collateral consequences, including social stigma of conviction, difficulty in finding employment, lost voting and jury rights, and inability to hold office.²¹⁸ Considering bankruptcy as a parallel provides some insight on how to expunge crimes from individuals as debts are discharged in a bankruptcy. A criminal conviction permanently labels and segregates an offender from society.²¹⁹ This creates a growing class of internal exiles who, despite serving their punishment, have no way to successfully reintegrate into society.²²⁰

Expungement is a process where the court destroys or seals an individual’s criminal conviction, removing it from a defendant’s criminal record, and ideally also from the public record.²²¹ This allows restoration of civil rights, limits the harm of inquiries by employers about criminal histories, and seeks to prohibit exclusion based on a prior conviction.²²² While expungement does not mean that the victims of the crime have forgiven the offender, it does signify a second chance and redemption from society. In other words, the community absolves the offender, allowing them to change and shed their crime and become someone new.²²³ At the same time, expungement does not eliminate responsibility for crimes as it is currently only available to people who have served their sentences and often to those who have gone beyond that by demonstrating rehabilitation.²²⁴

Traditionally, the legislature provided rules for expungement in state law, and under the applicable statute, individuals could petition the court for an expungement.²²⁵ But a unique characteristic of clean slate legislation is their automatic clearance of former crimes, which makes it a worthy form of systemic absolution. Several states have recently enacted clean slate legislation providing for automatic expungements, making the process much less burdensome for those with convictions.²²⁶ National momentum began with Pennsylvania first passing a clean slate law in 2018 and then twelve other states following their lead.²²⁷ These laws function by automatically erasing criminal records after a specified amount of time.²²⁸ This automated process has dramatically shifted the landscape of expungements in those states. For example, one year after Pennsylvania’s law went into effect, forty-seven million criminal charges were sealed, just over half the total charges in the criminal database.²²⁹ Between the twelve states, some fourteen million individuals are now eligible to have their records automatically cleared.²³⁰ At least five more states have pending clean slate bills,²³¹ and two Federal Clean Slate laws have also been proposed.²³² These new laws hopefully reflect a real shift in attitudes towards criminal records. For example, Utah’s Clean Slate Law seals eligible crimes so that they do not appear on records, and individuals will legally be able to respond to questions about criminal history as if the crime never happened.²³³ Utah’s law allows for some misdemeanor crimes to be expunged automatically if there is not another conviction for five to seven years.²³⁴ Indiana has an expansive law making expungement and sealing of records mandatory for records where no conviction has occurred.²³⁵ This includes serious felonies, and expungement is mandatory for misdemeanors if eligible.²³⁶ The law requires in all cases that an expunged conviction shall be treated “as if the person had never been convicted of the offense.”²³⁷ California also forgives old convictions for marijuana possessions, following the state’s legalization of recreational use of marijuana.²³⁸ At the end of 2023, New York became the twelfth state to pass a “clean slate” law.²³⁹

Many of these clean slate laws are a form of systemic absolution in which, based on certain qualifications, offenders can have their convictions automatically expunged without having to inquire into the specific facts of each case. Crimes automatically disappear from criminal records in the way ancient societies were healed ritually through a symbolic ritual. And although not directly reducing the number of people incarcerated, clean records have been shown to correlate with reduced recidivism rates,²⁴⁰ as well as arrest rates lower than the general population of the state and higher employment outcomes.²⁴¹ Clean slate laws also exemplify a forgiveness-centered legislative approach to criminal justice reform. They go beyond simply softening punishments, as the public through their elected representatives demonstrates a possible systemic approach to forgiveness, or a cleansing of the public slate.²⁴²

It is possible to expand automatic expungement to all states and consider this for the federal system. A historical corollary is bankruptcy law which allows those who are unable to repay their debts to have them wiped clean under federal law, as the Bankruptcy Act of 1800 facilitated the release of debt prisoners.²⁴³ Before this act, people who could not pay their debts were punished and put into prisons with poor conditions and punished as criminals. Bankruptcy law in the United States requires a person with debts to report all of their assets. Then, they are released from the burden of having to pay the debts they cannot afford to pay, and the debt is eventually discharged.²⁴⁴ After a legal bankruptcy, the individual who owed a debt and their company are free from any legal claims, though they may remain “a poor credit risk for future loans until they develop a record of making timely payments of bills.”²⁴⁵ Automatic removal of a bankruptcy occurs after seven or ten years, depending on the type of bankruptcy.²⁴⁶ The federal system could consider expungement of a criminal record after a similar period of time.

Expungement is an existing procedure that could be expanded so that more people who have been convicted of a crime and served their time could have their records expunged automatically and periodically. Federal expungement could mimic the bankruptcy system, with the goal of improving systemic absolution. Federal legislation called the Redeem Act has been proposed to tackle some of these issues.²⁴⁷ States who have not done so could legislate for an automatic expungement procedure for people who have been arrested and then remained crime-free for a certain number of years to have arrests removed from their record. Implementing an automatic expungement procedure where all people who have not been rearrested after a certain number of years could be expunged is one means by which to bring about societal absolution in our criminal justice system. Like the scapegoat ritual of old, this could be one way for society to understand that people can change and there should be periodic room to create a clean slate.

C. Clemency

While clemency is a broad term, American law primarily recognizes five forms of clemency: pardon, amnesty, commutation, remission of fines, and reprieve.²⁴⁸ Clemency traces its roots back to the Code of Hammurabi through the Greeks and Romans to the English legal system, and is enmeshed in principles of forgiveness.²⁴⁹ Because it is based on an executive considering an individual’s case and providing them forgiveness for their crimes, it does not have the potential applicability for systemic absolution. However, because clemency provides constitutional and historical authority for the importance of forgiveness in criminal justice, it is discussed below, though such approaches are not recommended for expanding into broader systemic absolution.

Pardon Power

Clemency can be used to improve justice by adjusting individual sentences to avoid undeserved punishment.²⁵⁰ In the United States, clemency power lies in the Executive branch in the Pardon Clause which vests the president with “[p]ower to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”²⁵¹ The president’s pardon power is expansively broad, and they may exercise their discretion to pardon for any reason, with no requirement to base their decision on objective criteria.²⁵² The president can use clemency to correct decisions of prior administrations with which they disagree and to make a statement about broader policy views.²⁵³ The majority of state constitutions also provide for a similar clemency power.²⁵⁴ The Founders understood the importance of establishing an avenue for mercy within the criminal justice system as a necessary check on a system that may allow for retribution.²⁵⁵ Moreover, it allows for more uniformity of treatment because it allows the president to consider national patterns, whereas prosecutors may focus on local interests.²⁵⁶ Some scholars argue that the Framers intended clemency to serve as an important check on overreach in punishing criminals, and if it goes unused, the justice system becomes unbalanced.²⁵⁷ Furthermore, while states may provide alternative mechanisms such as expungement, in the federal system, clemency is the only avenue for offenders to clear their records without further legislation.²⁵⁸

In the past, pardons were used more expansively to address policy issues, such as President Carter issuing amnesties for draft evaders,²⁵⁹ or George Washington pardoning participants in the Whiskey Rebellion.²⁶⁰ In more recent years, Presidents Reagan, Clinton, and Bush used the pardon power only sporadically, and did not use it to promote policy initiatives.²⁶¹ Modern presidents have differed in their approaches to the use of clemency. For example, President Obama granted 1,927 clemency petitions in his time as president,²⁶² with many recipients being offenders serving time for drug-related crimes.²⁶³ President Trump granted far fewer petitions,²⁶⁴ and many of the petitions he did grant were for people he knew personally.²⁶⁵ Clemency and commutation rates have declined drastically, most likely driven by tough-on-crime political forces.²⁶⁶ For example, while President Kennedy granted 33% of clemency requests, President George W. Bush granted only 2%.²⁶⁷ Similarly, from 1909 to 1913, President Taft granted 39% of requests, but President Obama granted only 5% during his tenure.²⁶⁸ Recent presidents have also used commutation to grant relief to criminal offenders. In 2024, President Biden commuted sentences of thirty-seven prisoners who were facing the death penalty with mixed reactions, some believing these were a “justifiable mercy,”²⁶⁹ and others claiming that victims were not shown appropriate justice.²⁷⁰ Overall, Biden pardoned over 4,000 individuals and Donald Trump has pardoned over 1,500.²⁷¹

The executive branch could consider data in its clemency decisions, potentially releasing a larger percentage of those incarcerated or considering data to determine which defendants are serving unfairly harsh sentences where others have received lesser punishments. Using clemency to reduce incarceration terms or inequity between those serving are two possibilities of expanding clemency beyond individual cases but considering it more broadly as a criminal justice reform measure. A potential problem to consider with the executive pardon power is its unlimited and unreviewable nature, raising the possibility for corruption and unequal treatment.²⁷² Another problem is that the agency in charge of submitting cases for review to the president is the Department of Justice (DOJ), which creates “tension because all clemency decisions are, in effect, reviews of prosecutorial decisions already made” by the same executive branch.²⁷³ The DOJ does not see its role as a policymaker but rather as an enforcer of the law, so clemency will be unlikely to be popular in that department.²⁷⁴ Rachel Barkow and Mark Osler suggest that using data-driven clemency might systematically help reduce sentences and check prosecutors who are charging offenders too aggressively.²⁷⁵ The data collected can also help to identify and correct areas where prosecutors are prone to error.²⁷⁶ Currently, clemency is not used in any meaningful way to address mass incarceration either on the federal or state level; but with the right considerations, it could be.²⁷⁷

Amnesty

Amnesty is a type of pardon, typically granted by a government to a group of people who have committed crimes, sometimes political in nature. President Andrew Johnson famously provided amnesty to all Confederate soldiers who decided to rejoin the Union.²⁷⁸ More recently, some scholars have proposed “Second Chance” programs to lawmakers that would grant first offenders amnesty after completing their sentence and a fixed term of probation.²⁷⁹ In 2018, the St. Louis Municipal Court established a warrant amnesty program, allowing anyone with an outstanding warrant for violating certain city ordinances to pay their original fines without late penalties.²⁸⁰ A potential use of amnesties is to stop mistakes in applications of the law. Martha Minow recommends the use of amnesties to “check overly zealous or biased prosecutions, excessively punitive rules, and simply mistaken policies.”²⁸¹ But thinking more broadly, amnesties could be applied extensively in cities and states to forgive certain types of criminal offenders, or those who have served a certain period or have undergone particular educational or rehabilitation programs while incarcerated. Amnesties can be used broadly and systematically by executive branch leaders to allow those serving long or punitive terms to have reduced sentences, or even to forgive those serving time due to mistaken policies.

While amnesty and pardons are not the best approaches to systemic absolution, as they are best handled on an individual basis, there are ways to

expand both practices that are already grounded in constitutional and legislative provisions to create larger avenues for forgiveness of crime.

IV. The Role of Systemic Absolution in Criminal Justice

Systemic absolution can create a more comprehensive theory of punishment and has the potential to transform criminal justice. While forgiveness or absolution might appear as only relevant individually, systemic absolution is already used in second look sentencing, automatic expungements of criminal records, and executive clemency as discussed above. It can also be expanded by increasing indeterminate sentencing, automating deferred adjudication, and by removing barriers for judges or parole boards to reduce sentences. Establishing a structural framework for these existing practices under the label of “systemic absolution” could help place them in proper context, promoting a more comprehensive approach to justice—one that allows for broad-scale forgiveness after punishment. There is a historic basis for societal forgiveness in Judaic, Roman, and indigenous laws. Understanding the religious roots behind our criminal justice policy allows us to question the guiding principles of retributivism and incapacitation that dominate our criminal justice policy. While it will always remain important to punish people proportionately and hold people accountable for crimes, these retributive aims are not complete without considering absolution after accountability. Current criminal justice theory is missing absolution, or a way to clean the slate after crime. Given that crimes by their nature are offenses against a state or community, a systemic absolution framework allows legislative, judicial, and executive branches to sort out the American mire of criminality.

The U.S. criminal justice system includes many people imprisoned for crimes, often because of a mistake made years ago or for those lacking resources or desire to change. Some have no interest in rehabilitation and remain a danger to society, but this is not the vast majority of the almost two million incarcerated. Many have potential to change but lack opportunities to rehabilitate and reintegrate into society. As such, the system hardly grants opportunities for individuals to start afresh, leaving many who remain in the cycle of criminality. This final Section introduces three considerations in adopting a systemic absolution framework. First, it considers criminal offenders potentially avoiding adequate accountability for crime. Second, it considers societal shifts on absolution that could allow forgiveness principles affecting individuals more universally to expand to macro-level systemic forgiveness. Third, it considers the perception of society on punishment and the age effect on crime and forgiveness. These principles contextualize systemic absolution with current accountability rates for crime, increased social interest in forgiveness, and empirical data demonstrating that society views current punishment trends as unduly harsh.

A. Perpetrators of Crime Avoiding Adequate Accountability

The criminal justice system, which currently fails to punish most offenders, could benefit from systemic absolution to deal with the twin challenges of mass incarceration and low criminal accountability. Scholars and policy advocates are aware of the American incarceration problem; America is number one in incarceration rates and will be for the foreseeable future. What is less understood is the amount of unresolved crime in America, or the low criminal accountability rate.²⁸² About twenty million serious crimes occur in America per year,²⁸³ but only a small fraction of these crimes are solved by police and then punished by the criminal justice system. Only 50% of serious crimes are reported to the police, 20% are solved, and 10% lead to a conviction.²⁸⁴ Thus, 90% of offenders go free, many without even being arrested. Arguably, America’s criminal justice system is technically absolving many serious crimes already, by failing to arrest most individuals. Many criminal justice scholars have overlooked this problem, but any argument that we should deal with criminal justice issues in a way that excludes these considerations is missing a big piece of the puzzle. Currently, society is both accepting high incarceration rates while ignoring the victims of serious crimes and failing to find a meaningful solution to the lack of criminal accountability.

Very few would argue that increased severity in incarceration is the best long-term approach to this twin problem of mass incarceration and low accountability.²⁸⁵ Even though there is a low probability of apprehension for offenders, the number and types of felonies that we punish have increased.²⁸⁶ The combination of low apprehension and high punishment increases the risk of recidivism, so the severity of punishment is not effective as a deterrent, and longer sentences are not the solution to recidivism.²⁸⁷ Incarceration is also an inadequate way to restore victims; because few offenders even get to the incarceration stage, most victims of crime are left without meaningful resolution. Increased certainty of punishment could help increase deterrence of crime. The few experiments with decriminalization demonstrate that this is not a viable solution.²⁸⁸

Punishment does not necessarily have to involve long-term incarceration and could include alternative approaches to criminal accountability. For instance, one approach discussed above that might institute broader criminal absolution would be to expand prosecutorial use of deferred prosecution as the norm for first-time offenders of crime, or those who might be especially well suited for mental health or drug rehabilitation. Prosecutors might charge crimes and delay trial or a plea agreement and sentencing rather than immediately convict offenders.²⁸⁹ Offenders must comply with certain standards that the prosecutor imposes as part of a “deferred prosecution agreement.”²⁹⁰ These requirements could include drug court, mental health court, drug testing, rehabilitation, mentoring and counseling, or other programs. If they meet the requirements and are not arrested again within a certain period, the prosecutor can drop the charges against them.²⁹¹ Like absolution in religion, criminal absolution might involve an offender recognizing her crime and taking measures that show her penitence. In return, the prosecutor, the person situated to impose justice on behalf of society, absolves her of punishment. However, this can be done automatically in a prosecutorial office where all individuals charged with certain crimes can have their charges dropped automatically if they remain law-abiding after a certain period of time. Deferred prosecution is one approach that might allow for a regular absolution of crime in a way that still maintains adequate deterrence for crime while allowing the principles of forgiveness to influence criminal justice.

B. Societal Shifts on Forgiveness

In recent years, forgiveness and restorative justice have been more prominent as individuals recognize the individual harm of holding on to resentment and hate. Empirical scholars like Megan Stevenson have argued that even well-designed criminal justice studies rarely produce meaningful change.²⁹² Stevenson points out that systemic change is a potential solution that involves changing the “minds and hearts” of many people “as well as changing the concrete structural factors.”²⁹³ The possibility of systemic change in the criminal justice system could be for communities to advocate for more formal adoption of systemic absolution, or broadscale forgiveness measures.

International charities are embracing forgiveness concepts,²⁹⁴ and the Templeton World Charity Foundation aims to reach 100 million people through evidence-based approaches to forgiveness in a worldwide “Discover Forgiveness” campaign.²⁹⁵ Similarly, in 2004, UK journalist Marina Cantacuzino founded The Forgiveness Project, which “provides resources and experiences to help people examine and overcome their own unresolved grievances.”²⁹⁶ The Forgiveness Project provides resources including shame training for people working in restorative justice, a group-based prison reform project “RESTORE,” and forgiveness-based lesson plans for schools.²⁹⁷ Other international initiatives, Beyond Conflict and the Institute for Historical Justice and Reconciliation, aim to rectify conflicts and reconcile contentious histories by employing practices of individual forgiveness.²⁹⁸ In one of the areas where societal norms have led before the legal academy, media and social science thinkers have explored important ground in considering the benefits of forgiveness to individuals.²⁹⁹

The legal academy has considered that the harm of punishment to an individual does not make the victim whole.³⁰⁰ Indeed, research demonstrates that forgiveness is more likely to help victims than punishment is. Michael Wenzel and Tyler Okimoto found that “a sense of justice restored through restorative responses promotes forgiveness, but justice restored through retributive responses does not.”³⁰¹ According to research, victims of robbery, burglary, and assault are twenty-three times more likely to feel they have received a sincere apology and four times less likely to desire revenge after restorative justice conferences as opposed to ordinary legal proceedings.³⁰² Victims expressed more satisfaction with restorative than adversarial processes and expressed excitement to help offenders turn their lives around, even though they rarely articulated the concept of forgiveness.³⁰³

There are many physical, mental, and emotional benefits for victims who choose to forgive their offenders, and negative effects when people fail to forgive.³⁰⁴ Positive psychology experts explain that when people forgive, their emotional reactivity decreases and their level of happiness goes up.³⁰⁵ However, the benefits of forgiveness for a victim are not as great as the “adverse health consequences” of failing to forgive.³⁰⁶ Unforgiveness “is associated with stress-related poor mental health, rumination, and depression.”³⁰⁷ Dr. John Clabby found physical harm for holding on to emotional injury and notes, in particular, adverse effects on the heart.³⁰⁸ Having each individual perpetrator or victim enter through the criminal justice system is not necessarily vital, as some benefits for both sides can be found through restorative measures.³⁰⁹ These individual benefits can extend to society if systemic absolution were adopted in a comprehensive crime framework.

C. Punishment Levels Need Adjusting

Both empirical research and societal surveys show that punishing for as long as we do might not benefit society. First, criminology research has long supported the crime-age curve that demonstrates how criminality rates peak in the late teens and drop steadily as age increases.³¹⁰ In 2019, individuals between the ages of fifteen and twenty-nine made up nearly forty-two percent of all arrests in the United States.³¹¹ Individuals aged fifty and above accounted for only thirteen percent of arrests.³¹² Other research has shown that there is a dramatic drop-off in criminality after the age of forty.³¹³ Indeed, we understand that older individuals are unlikely to recidivate. Congress has passed the First Step Act to allow release for those serving after the age of sixty and not charged with violent crimes. We also know that people typically age out of violent crime by fifty.³¹⁴ There is room for sentence revisions based on this information. However, older inmates charged with violent crimes are also very unlikely to recidivate.³¹⁵ And given that the bulk of state inmates are serving long sentences of violent crimes, and two out of three are over the age of fifty-five, reconsidering sentences for defendants between forty and sixty could dramatically decrease incarceration rates.³¹⁶ For example, society would not face increased safety threats when second look laws include individuals in their fifties and forties who have already served lengthy sentences for violent crime.³¹⁷

Empirical work by Paul Robinson demonstrates that society’s sense of justice is to punish much less than we currently do.³¹⁸ Robinson argues that most criminal law systems have already lost the moral credibility with their communities because they are far too harsh.³¹⁹ Robinson contends that there is more room for mercy in criminal justice and has advocated for a codification of rules that could be applied consistently and would not become dependent on the judge or some other extraneous factor.³²⁰ Robinson advocates for a “Mercy Code” with guidelines for what kind of behavior begets mercy and to what extent mercy will change the ultimate outcome of the sentencing for the offender.³²¹

Reevaluating sentencing through the lens of forgiveness is not to say that punishment should be abandoned altogether, but that second look laws should be expanded. Robinson argues that to encourage mercy without any kind of limits would create mayhem,³²² and I would argue that expanding forgiveness to avoid accountability would create a lack of order and improper incentives when it comes to crime. The research demonstrates that the “impulse to punish wrongdoing” is so deeply ingrained that most people would resist the abolition of all punishment.³²³ Additionally, the possibility of punishment serves to deter delinquency and a total lack of consequences could, and has, led to chaos in places that have experimented in this regard.³²⁴ As suggested above, to maintain accountability but also allow systemic absolution, offenders would be given the opportunity to enter into deferred prosecution as a default measure which allows a defendant to change or face prosecution under the law.

Conclusion

Communal absolution has been a fundamental part of societal practice throughout history, particularly in the criminal context. While some might be concerned that systemic absolution might undercut retributive justice that dominates modern criminal justice, its introduction could ameliorate the effects of an overly punitive system and make a meaningful dent in the United States’s mass incarceration problem. Forgiveness has an expansive history, particularly with ancient cultures that form the bedrock of criminal punishment theory. Many religions, including Christianity, Islam, Judaism, and Buddhism, employ some concept of absolution as a central part of their religious practice. Forgiveness also plays an integral role in individual mental health, while unforgiveness negatively impacts people’s overall well-being. While individual forgiveness is already part of our criminal justice system as a part of restorative justice, there has been no recognition of systemic absolution in modern criminal justice. Individual forgiveness in criminal justice currently includes clemency, expungement, apologies, the right of the victim to forgive, and restorative justice.

These are all important developments. However, without a move towards systemic forgiveness in criminal justice, the community continues to be burdened by the crimes of offenders long after they have been convicted and sentenced.³²⁵ Systemic absolution, discussed above, might include expansion of sentencing reduction legislation, defaulting to deferred adjudication by prosecutors, and automatic expungement efforts after a certain period of time of avoiding crime. Currently, communities carry a heavy social burden resulting from mass incarceration. Families and communities are broken apart as fathers, mothers, and siblings are removed from their support systems. Disproportionate harm towards minority groups results from higher rates of crime and incarceration and resulting collateral consequences inflicting communities after prison.³²⁶ Ultimately, distrust and hopelessness dominate criminal justice when punishment systems lack a system of absolution. Our current punishment structure envisions people as two-dimensional archetypes rather than complex human beings with inherent dignity. A person’s crime defines them indefinitely, limiting opportunities for change and holding them captive with societal stigma. Without a systemic mechanism recognizing that all of us collectively should not be punished perpetually for the worst thing we have done, society remains burdened by the weight of mass incarceration and punishment.

By incorporating systemic absolution into the criminal justice system, we can heal the many individuals who never receive justice—and even those who do—since the system has not proven to be effective at solving the underlying problems. Incorporating systemic forgiveness into our criminal justice system will also help society be more compassionate towards offenders and see “the full picture of their humanity,” unobscured by “their worst moment.”³²⁷ As Robin Steinberg observes that “[e]ach one of us has done something that could be defined as criminal—driving home after a few too many drinks . . . or being less than truthful on a tax return . . . . Whether or not our crimes have landed us in the criminal justice system . . . none of us wants to be defined by our most shameful moment.”³²⁸ Just as we do not want to be defined by these regrettable mistakes, neither do individuals who are incarcerated. Systemic absolution could expand healing for society as former offenders are given hope to live a normal life. Moving towards absolution in criminal justice provides helpful nomenclature for what is already happening when crime goes unpunished but allows for accountability in areas where societal priorities do not align with carceral outcomes. As past civilizations and religions have championed communal restitution,³²⁹ systemic absolution has the power to transform criminal justice today.

99 S. Cal. L. Rev. 41

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Shima Baradaran Baughman*

*Woodruff Deem Professor of law at BYU Law and Distinguished Fellow at Wheatley Institute. This piece benefited from an earlier less developed presentation at the Stanford/Yale/Harvard Criminal faculty workshop. I am grateful for Benjamin Hill, Bonnie Stewart, Lane Gibbons, and Mason Spedding for research assistance as well as Kory Staheli and Erica Larsen for institutional support. I am grateful for the excellent editing by the Southern California Law Review staff particularly Christopher Shahverdian and Kevin Zhang.

Systemic Absolution

Introduction

I. Conceptualizing Forgiveness in Criminal Justice

A. Individual Forgiveness in Criminal Justice

B. Should Forgiveness Have a Role in Criminal Justice?

II. Individual Forgiveness and Communal Absolution in Religious Tradition

A. Individual Forgiveness in World Religions

B. Christian Individual Absolution

C. Communal Absolution in World Religions

Communal Cleansing Rituals

Periodic Absolution Practices

Communal Absolution in American History

III. Forms of Absolution Existing in Criminal Justice

A. Sentencing and Charging Revision

Second Look Resentencing

Deferred Adjudication

Safeguarding Judicial Discretion