From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm

Abstract

Abstract-Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of 'just deserts'. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency in relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call 'affective blame': the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of 'responsibility without blame' into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of 'just deserts' with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences-typically negative but occasionally not, so long as they are serious and appropriate to the crime and the contextimposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice.

Criminalizing Vulnerability

“…Not only would this approach make the criminalisation of failure to protect more obviously undesirable, it would also diminish what Lacey and Pickard (2013) call 'affective blame', meaning the hostile emotions associated with blameworthiness. Affective blame is particularly problematic in failure to protect cases, not only with respect to members of the jury, but also with the wider public.…”

Temporality in restorative justice: On time, timing and time-consciousness

“…It might foster an approach that foregrounds notions of moral responsibility and agency in ways that are more than simply blame-allocation (Lacey and Pickard 2013) and avoid swinging between the polarities of free will and determinism that have bogged much criminology over the years (Cohen 1979). …”

Self-Harm as Violence: When Victim and Perpetrator Are One

“…14 . For further discussion of the distinction between responsibility and blame, in theory and in practice, alongside other themes of this section see Pickard 2011and 2013b, and Lacey and Pickard 2013. The importance of psychosocio-economic context is also emphasized by feminist theories of relational autonomy, which argue that in such conditions, autonomy is impaired.…”