Why Did Tinkerbell Get Off so Easy?: The Roles of Imagination and Social Norms in Excusing Human Weakness

Abstract

This article uses the Peter Pan story as a jumping off point for discussing the roles of empathy and compassion in understanding partial and complete excuses in the criminal law. Most readers forget that Peter's fairy, Tinkerbell, was an attempted murderess. Yet Peter commuted her sentence to something very minor. Why? The article runs through a detailed examination of the empirical data and of philosophical writings respectively on when we do and should feel compassion for others - defining compassion as a desire to reduce another's suffering that is sufficiently intense so that the compassionate person acts to aid in bringing that suffering-reduction about. This conception of compassion requires exploring the roles of social norms, the moral and empathic imaginations, and institutional choice in rendering a public decision whether a particular offender merits a particular degree of compassion. This discussion leads back to an analysis of whether Tinkerbell's sentence was just and what lessons that teaches about the role of compassion in the law of excuses in real criminal cases.

Keywords: Excuses, Compassion, Sympathy, Partial Excuses, Complete Excuses, Mitigation, Murder, Empathy, Tinkerbell, Peter Pan, Institutional Choice, Juries, Jury, Judge, Judges, Social Norms, Norms, Disgust, Empirical Desert, Sympathy Entrepreneurs