When Should Law Forgive?
Today, with a criminal justice system designed to punish, the U.S. has the highest rate of incarceration in the world. What if the American legal system was set up to weigh grounds for forgiveness? In her new book, When Should Law Forgive?, former Harvard Law School dean Martha Minow argues that we should build forgiveness into the administration of American law.
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This podcast was recorded on October 07, 2019
Michael Waldman: Martha Minow is a professor and the former dean of Harvard Law School. She explores the intersection of law, justice, and forgiveness in her latest book, When Should Law Forgive?
Martha Minow: We live in the most incarcerating society in the history of the planet. There has to be some way in which we can look at the tools inside of law and say, you know, this is time for a reset.
Michael Waldman: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU School of Law. I’m Michael Waldman. This program was recorded in October 2019.
Martha Minow: A jurisprudence of forgiveness would actually say, forgiveness means you can let go and have a clean slate. We don't do that right now in the criminal justice system. We should.
Michael Waldman: Martha Minow joined in conversation with Melissa Murray, a professor of law at NYU School of Law.
Melissa Murray: Forgiveness has been in the news. So how many of you saw the aftermath of the trial of Amber Guyger in Texas? Yes. All right, so Amber Guyger was on trial for the murder of Botham Jean, who was an African American man who she confronted in his own home. She mistakenly took his apartment for hers and shot him. He was unarmed at the time he was killed.
The trial was stunning in lots of dimensions, but perhaps what was most searing in the public imagination was the conclusion of the sentencing phase. Ms. Guyger was sentenced to ten years in prison. But at the end, Botham Jean's brother came down from the stand and publicly hugged her and told her that he forgave her, that he loved her, and that he would be praying for her. And then, subsequently, the judge who had presided over the trial also came down and hugged both the family and Amber Guyger herself. This was the hug heard round the world, right? So lots of people saw this, and it prompted … It kind of polarized reactions. On the one hand, there were those who saw this — I think rightly — as an incredible act of grace and forgiveness. But there were others who noted that this kind of forgiveness is frequently borne by minorities, people in positions of … who are disempowered, and who are often forced to bear the brunt of offering up their forgiveness when perhaps, they shouldn't.
Is there a way in which the expectation of forgiveness is raced and gendered? And in thinking about who we expect to forgive, do we impose a disproportionate burden on those who are already somewhat dispossessed in society?
Martha Minow: So such a central question, and all of those complex reactions to this particular moment capture some of the issues I wrestled with. There was a sense of grace when this young man — 18 years old, clearly reflecting issues that he had wrestled with in his life — saying, “You are like me. You are a person.” I mean, that generosity of spirit. I mean, how can you not be moved by it? And at the same time, isn't there something wrong with this picture? Here's this white police officer. How could she have mistaken someone else's house for hers? I mean, the whole thing is just so hard to understand.
Of course, expectations of forgiveness are raced and gendered. They're also about class. They're about power. But that's partly because forgiveness is one of the powers of the weak. To claim the ability to forgive — and let's be clear, to not forgive — is to claim the position of equality and dignity. And that's a power that we shouldn't actually ever take away from people.
The book is not about whether the law should promote interpersonal forgiveness. In fact, it's mostly about: The law should stay out of any kind of interpersonal activity. It should, at best, relieve people from consequences of actually apologizing. For example, there are 36 states that now have apology laws, so that if someone in the medical profession — for example, after surgery that didn't work out — apologizes, they don't actually then fear the introduction of that sentence into a civil action. I mean, we should have ordinary human interactions. But any use of the police power of the state to promote interpersonal forgiveness or apologies is a sham at best, and is oppressive at worst. So I am not about that.
On the other hand, we live in the most incarcerating society in the history of the planet. There has to be some way in which we can look at the tools inside of law and say, you know, this is time for a reset. Every major civilization has had a reset button. They came up with these tools to restart the clock, to clear the slate when it came to criminal law or bankruptcy. I think we're in one of those moments right here, right now.
Melissa Murray: So, as part of this larger reform effort, to think about — or rethink — criminal justice and other parts of our law, what is the interaction between forgiveness and mercy? How are they related to each other? How are they distinct?
Martha Minow: Mercy is a concept that is about the person who has power can decide not to use it. Forgiveness is often the person who doesn't have power. And that seems to me, therefore, a bigger concept. It embraces more. When we talk … When I talk about forgiveness in the legal system, I mean something very specific. I mean actually foregoing sanctioned punishment that is actually justified. It's not forgiveness unless it's justified. And in my view, unless there was a wrong, and a wrong that's acknowledged, and a wrong that's acknowledged by the wrongdoer, and efforts to actually make amends, we shouldn't be talking about forgiveness.
Melissa Murray: Well, if we are talking about forgiveness, and all of those conditions are met — that there has been a wrong, it is a justifiable offense — shouldn't we be talking about justice, and not necessarily forgiveness?
Martha Minow: So one of the challenges is, at least going back to Aristotle, we have an idea that justice is treating like cases alike. And whatever forgiveness is, it's not rule bound. And so, there's a tension between this rule orientation of the law on the one hand, and forgiveness, a “letting go of justified” sanction. I worry about it. I worry about that discretion. How about the police officer that stops people to decide whether or not to give a ticket? There's discretion all over this legal system, and we don't have rules about how that discretion should be exercised. And we know that it's exercised in unfair ways.
I guess what I'm calling for is a jurisprudence, a way to think about where there is discretion. Let's develop some norms. Let's at least be critical of it, you know. Let's take the instance of pardons, where presidents have the ability to pardon someone without asking anybody else. I think there can be a justification for the pardon. But in the United States, under the United States Constitution, we don't have any rules about when the pardon's given. And I think that we have some examples that are appalling, and we said, “Okay, that's an unpardonable pardon. Here's an instance when that power to let go of punishment should not be used.”
Melissa Murray: The three specific examples that you use in the book are transitional justice, particularly the example of child soldiers in Sierra Leone and other parts of sub-Saharan Africa, where there's been ethnic conflict. You also talk about bankruptcy and the forgiveness of debt. And then finally, there's the discussion of amnesty, pardons. Clemency would probably fall in there as well.
Martha Minow: Expungements, commutations, yes.
Melissa Murray: Are these … I assume that you don't think that these are exhaustive, that there are other places. So where else? And sort of what does it look like to have a jurisprudence of forgiveness?
Martha Minow: What's the method of reasoning by lawyers? We don't really have a method, except comparison — that's what we do. And so my method here is to take some examples that may not usually be put in juxtaposition, and to compare the treatment of child soldiers with the treatment of juvenile offenders in this country. Child soldiers, international law, humanitarian discussions, human rights, are filled with concern about recognizing the ways in which the children, the young adults, even if they commit horrific acts, they are not entirely to blame. They were caught up in wars created by adults. We don't talk that way about juvenile offenders in this country. And I wanted to draw that comparison. A jurisprudence of forgiveness would say, let's take situations that look somewhat similar; let's treat them more comparably.
And then, yeah, bankruptcy. We use the word forgiveness to forgive a debt. That's what the law is. It's right there in the law. I've had people say to me, "Forgiveness has nothing to do with the law." I said, "Well then, we'd better get rid of the bankruptcy law, because it's right there." But in bankruptcy, we have this idea that corporations for sure, and under some circumstances, individuals, should have an ability to have a fresh start.
We don't do that with criminal law. We don't have a fresh start. Even people who have served their whole time — they come out, they have the stigma. And in states across this country, they're denied the vote, they're denied driver's licenses, they're denied housing, jobs, licenses … professional licenses, sometimes even custody of their children. That seems wrong to me. And a jurisprudence of forgiveness would actually say, forgiveness means you can let go and have a clean slate. We don't do that right now in the criminal justice system. We should.
That when it comes to pardons and amnesties, I think that, while yes, this is an act of discretion, we should have some criteria. And at least the public should be able to debate and discuss it — if not, as some countries do, actually have judicial review or commissions, or more than one person, one person's whim. These are examples that are the explicit areas in the law, where there already is forgiveness built in. I think there could be more, and certainly there already is, in all the areas where there's discretion. But the discretion, again, is exercised usually away from any kind of visibility.
We should be able to say explicitly, "Here's how we're using our discretion." This is what President Obama did with the Dreamers. He said, you know, we have limited bandwidth in enforcing the immigration law. This is the group that, really, it's not a good use of our resources. They are caught up in a web of problems that's not theirs.
Melissa Murray: We can think of forgiveness as an opportunity to redirect resources, an opportunity to sort of displace where we would ordinarily shift law's attention to other places. How do we reckon with some of the idiosyncratic characteristics of our own society? So when you raise the comparison between the child soldiers in Sierra Leone and the juvenile gang offenders here in the United States — or I think in Chicago is the example you use in the book — what explains the difference? For me, the first thing I thought of was the residue of race in the United States.
So how much does our own baggage impede our ability as a society to be generous and forgiving?
Martha Minow: Well, it is not only the original sin, it's the ongoing sin in this country. So we can't discuss any of this subject without talking about race. That's absolutely right. And yes, reparations needs to be a conversation.
So the juvenile court, as an institution, was invented in the United States, 1899, Chicago, my hometown — the idea that young people should not be caught up in the same kind of criminal justice system as adults. And the original idea was they should instead have a chance to be educated, and have social supports, and have a new start. It was a fresh start idea. Somewhere between 1899 and 1965, that ideal disappeared, and the juvenile courts became at first chaotic, punitive, and ultimately, over time, if anything more punitive than the adult courts. That's not just about race. That's about … Surely it is about race, but you know, you can actually think about the ways in which older people look down at young people and say, "These are hooligans, and we should lock them up." Or they're superpredators, or words about young people that obscure that they are human beings, too.
And there's some kind of a propulsion or dynamic inside the legal system that, once it's going, it gets more punitive and more punitive in this country. It's not true in other countries. But it is true in this country.
Melissa Murray: So is it just simply like a kind of path dependency? Like, the history of the juvenile defense system is, you know, quite clearly rehabilitative in nature, supposedly. But I mean, also, somewhat imperialistic, too. I mean, it was originally cast as a way to discipline the children of young immigrants whose parents couldn't get it together to assimilate properly. If that's the original blueprint, can we expect something more?
Martha Minow: The legal system is disciplining difference. But at least for the first 20, 30 years of the juvenile court's history — not just in Chicago, but around the country — settlement houses emerged, and alternatives to the formal legal system, places … after schools. These are after school programs. And it was a vision that was quite, quite different. We could have gone a different road.
Melissa Murray: Which brings up what we use now to make up ... So those sorts of after-school programs, those kind of state sponsored programs, were part of a larger social safety net that we no longer have now. And you are a well-known professor of family law. We usually expect the family to do that kind of work. Can we have a jurisprudence of forgiveness if we have a state that we are basically consigned to have play a passive role in the lives of citizens? Like, we have basically accepted a social welfare state that is in tatters. Can we have forgiveness without serious state investment in people?
Martha Minow: I think that to seriously talk about forgiveness is to understand that we're implicated in each other's lives, and that each of us is part of concentric circles of causation. And to actually have the ability to forgive is to have enough privilege that you have some power, even if everything else in your life is limited. I think that the bankruptcy system acknowledges that actually, this is a problem not just between one debtor and one creditor; we need to understand there's a whole network here. And we need to come up with feedback loops and ways to adjust the market for debt.
I think that's certainly true about crime as well. Who ends up being in a situation where it looks better to participate in crime, as opposed to other kinds of activities? You are a distinguished scholar of family law. We know the standard used in courts for children is the best interest of the child. It's one of the most bizarre phrases in history, because any child who stands up in court has already lost their best interest. It is way too late for that. So how do we keep people out of court? That's definitely going to require social investment.
We not only have a limited state when it comes to that, we have a view that actually, other people's children are not our business. And we have a view that ours is a negative Constitution — it's only protection against the government, it's not protection for anything. And it's an antiquated Constitution when you compare it with others around the world. And I think that, yes, a lot of the problems that have led to over-incarceration reflect the failure of the rest of society, the rest of other kinds of social investment.
You know, I do a lot of work with people with disabilities. And for children with disabilities in many parts of the country, the only way to get services for somebody is for them to get caught up in the juvenile justice system, which is a terrible thing for any child. But in able to be able to order services, it's a problem. This is a serious problem, yes.
Melissa Murray: So this relates to your last point about just our lives being inextricably bound to each other. We share a common fate, whether we recognize it or not. How can we have a culture or a jurisprudence of forgiveness if we, at bottom, have a kind of polarized politics that emphasizes this kind of survival of the fittest, every man for him or herself?
Martha Minow: We're living in a time of walled communities, and a time of privatization. The phrase “public good,” the phrase “public interest,” the phrase “public,” has become tarnished in America. And yes, I think that that's a reflection of the same sentiments of resentment that, you know, is the reason that I wrote the book. I think we're living in an age of resentment. I think we're living in a time when people actually project onto others what's difficult in their own lives.
Getting at all the roots of that and undoing it, it's a big project. I don't know if I'm up to that. But I do know this. Forgiveness is a human resource for letting go even of justified resentment. And we should amplify it. We should develop it. We should make it stronger interpersonally, but I'm suggesting institutionally as well.
Melissa Murray: If we think about that idea of a shared world, how we can create it and what it requires of us to be able to move forward together, and get to this point where we can be forgiving and accept forgiveness, at some point … We've been skating around the role of the state. How do we factor in whether or not the state, inasmuch as individuals, is an entity that has transgressed and we must forgive? We can think of so many different things in our history — internment, slavery. We can't even have a conversation about reparations in this country. I mean, my op-ed made that really clear. We could have a conversation about it, but we won't. And instead, we talk about diversity, and the idea of a sort of benign intolerable pluralism. But what we really want and should talk about is how do we get past the serious injuries that the state itself has done? So how do we have those conversations, and are those conversations necessary to be a culture that forgives and that can create and construct a jurisprudence of forgiveness?
Martha Minow: When Michael Brown was shot in Ferguson, Missouri, it took the investigation by the Department of Justice to expose the ways in which the criminal justice system in his community was funded on fees imposed on the backs of the poorest people in the community. People didn't know. In fact, they took it as just normal — that there are poor people, and they are going to have to pay for their own parole officer, and their own probation, and they're going to have to pay the fines and fees that then lead them to be incarcerated again.
The flaws — it's such an understatement to say “the flaws” — of our legal system, the legal system itself that's producing debtor's prison, which was outlawed by the Supreme Court of the United States nearly a hundred years ago.
I think that the acknowledgement of the mistakes and the errors in the legal system is the beginning of a jurisprudence of forgiveness, because only if there's an acknowledgement of these as mistakes can you have correction.
Melissa Murray: So this is a book that we have to put away until we have a new administration. Is that the point?
Martha Minow: When the election happened, I thought, "Oh, I'm going to need a chapter on what's not forgivable." And that's very much what the amnesty pardon chapter is. But I actually do think that we will not have a different kind of country until there's more forgiveness.
Melissa Murray: So I assume that like many of you … like me, many of you are fans of Harry Potter, yes? There are three unforgivable curses. Avada Kedavra, the Cruciatus curse, the Imperius curse. If you don't know that, you cannot call yourself a Harry Potter fan.
Martha Minow: I had a research assistant go through all of the Harry Potter books and find every instance of the use of the word forgiveness. It is all over the books.
Melissa Murray: They have a jurisprudence of forgiveness in the magical world. The muggle world apparently does not. What sorts of transgressions are completely unforgivable?
Martha Minow: I do think that actually Sheriff Arpaio's conduct is unforgivable. And the fact that he was pardoned by the President of the United States is also unforgivable. Sheriff Arpaio was found to have violated the civil rights of hundreds of people by jailing them, housing them in open sunlight in Arizona, above 110 degrees, dressing them in humiliating clothes, physically assaulting them. He was found to have violated their civil rights, and then he was found in contempt of court for continuing to violate their civil rights. And he was pardoned for that. Not only is this unacceptable because it signals that President Trump is willing to give a pardon to someone who supported his campaign, and that President Trump is signaling to anyone else who supports him, "I can pardon you, too," it's thumbing his nose at the rule of law. It's actually saying those violations of the decency, the minimum decency of people's human rights, that's okay. So that's unforgivable, in my mind.
Bryan Stevenson — professor at this great institution and author of the brilliant book, Just Mercy — he says, "Nobody should be judged by their worst moment." And I agree with that, and I think that not enough people think about that. I think that we need a legal system that thinks about that — that no one is summarized by their worst moment.
Melissa Murray: Not even Joe Arpaio?
Martha Minow: Well, that wasn't just his worst moment.
Melissa Murray: You can only have one.
Martha Minow: I don't know all of his life, but there was decades and decades of this kind of conduct. I think that the comparison with other countries is very striking. We can't just wave a magic wand and be a different culture and be a different society, but I do think that there are many, many people in this country who think there's something off the rails. And I also think that education is the place to start. It's the resource that I have devoted my life to.
Restorative justice being the idea that you can actually create a setting where the person who's accused and the person who's a victim can sit together with other people in the community and talk directly, face to face, about, "This is what this meant to me, and this is where it came from, and who else could participate? And now let's talk about the future, and what can we plan that will make this better for everybody in the future?”
It seems like a really good approach to me. And it's actually gaining traction in high schools in America, too. So I think that this is a promising avenue, more so than a plea in the middle of the otherwise existing adversarial system.
I don't think the legal system should be in the business of demanding performances of particular emotions.
People should acknowledge that they did something wrong. They broke a law, even if they think the law is wrong. And we can't talk about forgiveness unless we start with, "Yeah, there was a wrong done." If you don't think there was a wrong done, then we're talking about defenses or justifications or something that's not about forgiveness. And there are many cases where there can be defenses or justifications. Self-defense — "I didn't do something wrong. I was defending myself." The arguments for amnesty for undocumented immigrants now, or Ronald Reagan's amnesty — they broke the law. I mean, that's where we start.
So then the question is: What do we do about it? And I think that there are many circumstances where “What do we do about it?” starts with, “Who's the ‘we’?” And why are there so many immigrants here, and why are they being punished, in part, because some in the ‘80s, many of them were induced to come here to work in the fields? And maybe we need a political settlement that actually doesn't put all the blame on them.
And that is very much the idea in bankruptcy. The idea of bankruptcy is that, yes, somebody made a promise to pay, and they didn't pay. But how did we get here? Well, during the mortgage disaster, the foreclosure disaster, we got here because there were people being actually given incentives to give mortgages to people who everyone knew couldn't pay. So the responsibility is partly theirs, but it's also partly those who actually induced them to take on those mortgages, and it's partly the larger financial system. And what bankruptcy does, as a structure — borrowing from the equity courts of the royal kings — is to say, okay, let's put all of the pieces together, and no, the creditors are not going to get paid a hundred percent. They're not going to get paid most of it. But yeah, there'll be consequences for the debtor, too, like a low credit rating for the time going forward.
So that's what I mean about, yeah, there was wrong done, but now what do we do?
Melissa Murray: Especially around the context of immigration, is that … Is there an obligation for the state, if you are cultivating a culture and a jurisprudence of forgiveness, to actually take affirmative steps in the law, to make the country more forgiving and accommodating of those who might seek refuge, so that it isn't a crime to come here with ... Do you see what I mean?
Martha Minow: I do. But then I think we're not talking about forgiveness. We're talking about, you know, what was the Statue of Liberty about? What is asylum? So —
Melissa Murray: So like, that's not part of a jurisprudence of forgiveness —
Martha Minow: It's not forgiveness.
Melissa Murray: It's not about a jurisprudence of forgiveness?
Martha Minow: No.
Melissa Murray: It’s not about any sort of affirmative obligation.
Martha Minow: But that's a separate kind of commitment that I would share. But it's not about forgiveness, because it's saying, “Maybe they didn't do anything wrong.” We should be a country that welcomes anybody who's fleeing oppression in their country. I think that’s what has made this country strong historically. I would like that to come back.
At least in the area of pardons, I do not … I have two — not factors, but two categories where, it seems to me, we ought to be developing a jurisprudence of forgiveness. One is corruption — that pardons should not be given in exchange for something that benefits the one giving the pardon, whether it's a campaign contribution or some other personal benefit. Money, for example. Mark Rich, pardoned by President Clinton. Last day of his presidency, Mark Rich, who had given money to the Clintons, he'd given furniture to the Clintons. This is corruption. That should not be used.
And the second is, where the grant of the pardon induces law breaking of laws that should not be broken — which is again, Sheriff Arpaio. But I contrast that situation with Dr. Martin Luther King, Jr., who broke laws, who was held in contempt. Case went up to the United States Supreme Court. Supreme Court reaffirmed the contempt citation, even though the law that he disobeyed was a law that forbade peaceful marching. And a court order given ex parte in the absence of actually adversarial argument in the middle of the night, in a system that would never have given any equal rights to Dr. King or the people marching with him. Very different for him to disobey the law, than for Arpaio to disobey the law. So that's the kind of jurisprudence that I'm trying to articulate.
You know, is it the same set of factors in other areas? Probably not. You know, again, bankruptcy might be very different kinds of issues. Are there certain kinds of debts that shouldn't be eligible for bankruptcy? I do think so, but I don't think student loans are on that list. And it is only because of the political power of certain industries that student loans are now exempted from the bankruptcy laws. Even though — I just have to get this in — even though people who took out their student loans to go to a for-profit school that has since folded and declared bankruptcy, even they can declare bankruptcy, but the students can't. I mean, that’s … there's something wrong here. And we compare, and when we compare, and we see inequities, that's injustice.
I think that there are other kinds of conduct that may be unforgivable. I think genocide is unforgivable. I do have that view. It's interesting to me that the very first conviction by the International Criminal Court of Thomas Lubanga was for recruiting child soldiers. I think that's unforgivable, to take away people's childhood and make them killers. That's unforgivable. But, you know, we could be here all night developing the list of what's unforgivable. I think what we need much more work on is developing a practice of what is forgivable, and that includes learning how to apologize interpersonally, which we really don't know how to do.
Recognizing our own fallibility is really central to understanding the power of forgiveness. We each make mistakes. We will make mistakes. We have made mistakes. It's interesting, again, that every civilization has come up with forgiveness. Every religion, every religion, every philosophy. They have different norms about it. Some actually require that people take certain steps to repair the harm. Others actually celebrate the unilateral forgiveness. So there are different variations about it.
You know, I've been a dean. I'm a professor. I'm dealing right now, as many people are, with the issue of microaggressions. What I think would be helpful would be everybody say, "Hey, this is really hard. And I'm not going to condemn you for the rest of your life, because you said something that I find offensive. But you should know it's offensive, and not do it again." And can we come up with a way to have those conversations? I think that would be helpful, too.
Melissa Murray: Part of the appeal of forgiveness is that, at least in our culture, it is somewhat extraordinary and exceptional. Does it dilute that appeal and that attractiveness if we are actively cultivating a culture where it is more common and forgiveness is proliferated?
Martha Minow: It's an interesting question. You think we are so moved because it's so unusual? I don't know. I think that you start to listen for it, and you listen in lyrics of music —
Melissa Murray: Harry Potter.
Martha Minow: Harry Potter, movies, great works of literature. It is, actually, all over our cultural materials, in the honoring —
Melissa Murray: But not in law.
Martha Minow: But not in law. But not in law. So I don't think what makes forgiveness so moving is that it's unusual. I think it is that we see that it is actually summoning up the best that human beings can be, and we should actually open up the legal system to the best that human beings can be.
Michael Waldman: Thank you for listening to this episode of Brennan Center LIVE with Martha Minow and Melissa Murray.
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