SYSTEMIC ABSOLUTION

Retributivism dominates American criminal punishment theory. Stated simply, retributivism requires that an individual receive a proportionate amount of punishment for a moral wrong inflicted upon society. It is widely known that retributivism originates in ancient Jewish law and religious custom. What is less widely understood is that the cultural practices at the heart of retributivism also allowed space for communal absolution. In other words, after individuals were punished or held accountable for crimes or sins, there was typically a societal atonement practice where society was able to purge those crimes or cleanse the societal slate of the wrongs, so they did not continue to burden society. One such practice was the scapegoat ritual in ancient Jewish law where a goat was sent away from society to symbolize the community being cleansed as a group from their sins. Those sins were now banished, and the community could start afresh again. These sorts of group cleansing rituals were commonplace among many ancient cultures. And while American criminal punishment is based largely on retributivism, there is no corollary for an atonement practice, where crimes are periodically removed to restore society. Without an absolution-or cleansing-incarceration has burdened the United States criminal system for the last forty years-with no end in sight. This Article introduces a concept in criminal theory and public policy called "systemic absolution," which considers whether cleansing of crime could create a theoretically comprehensive criminal law theory that might reduce the endemic state of mass incarceration plaguing contemporary America. Systemic absolution is a societal cleansing and forgiveness of crime, that occurs periodically through legislative, executive, or judicial branch functions. It does not require personal forgiveness, which remains a separate matter between victims and defendants, but instead addresses a less explored area-societal forgiveness or absolution. Several examples of systemic absolution include periodic sentencing reductions, automatic deferred adjudication and expungements, and safeguarding judicial review of sentencing. This new theoretical framework restores the missing corollary to retributivism to create a comprehensive criminal punishment theory that provides a path for reducing incarceration and unburdening society from the weight of decades of crime.