Martha Minow on Forgiveness in the US Legal System

CHRISTIANE AMANPOUR: And when it comes to sharing important experiences, our next guest asked whether forgiveness has any chance in this age of resentment. Harvard Law School professor and former dean Martha Minow has taught generations of lawyers, including former President Barack Obama, about the power of the law and how a sentence can best match a crime. That question is at the heart of her new book, “When Should Law Forgive.” And she sat down with our Michel Martin to discuss how the American legal system, whose rate of incarceration is the highest in the world, could use a little compassion.

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MICHEL MARTIN: Martha Minow, thank you so much for talking with us.

MARTHA MINOW, AUTHOR, “WHEN SHOULD LAW FORGIVE?”: Thank you for having me here.

MARTIN: You point out in the book that every major religious tradition that we know of has some tradition or acknowledgement of forgiveness as a concept. But what does it mean to you? What does it mean in this context?

MINOW: To forgive is to let go of justified grievances. And I think all of that is important, that it’s to let go. It means the person who’s been harmed is the one who’s letting go. And it also means that the grievances are justified. And I think, if there’s not been an acknowledgement of a wrong, then we’re not in the land of forgiveness.

MARTIN: I think that you have been thinking about this for a long time. Why is that?

MINOW: I have been thinking about whether law itself can and should forgive, in part because we’re living in the United States in the most punitive country in the history of the planet, most incarceration. And I have been wondering, are there any resources that we have as a people to deal with this?

MARTIN: You said the United States is, what, the most punitive…

MINOW: Yes.

MARTIN: … country in the history of…

MINOW: Of the planet.

MARTIN: Of the planet. And that’s a pretty powerful statement. Why do you say that?

MINOW: Well, I — 2.3 million people in jail or prisons, more than in the history of the United States, and the United States more than anywhere else, per capita more than anywhere. Why do we do that? And it’s not even just the criminal justice system, which is extraordinarily punitive. The same crime in other countries does not generate the same length of a sentence. But it is through the rule of law that we have so many incarcerated people. And it distances people from the ability to criticize it, because it was lawful. Why has it happened? Some people say it’s about the puritan background in the United States. Some people say it’s got to be about our racial conflicts, because the disproportionate impact, particularly on African- Americans, is so huge in our criminal justice system. And yet it’s also kind of curious, because, in other domains, we are more forgiving.

MARTIN: So, how do you want us to think anew about this? I mean, you have identified a number of areas in which you feel the society needs to take a fresh look at the concept of forgiveness.

MINOW: Well, on the one hand, we all, I think, learn about the possibilities of forgiveness interpersonally. And that’s, I think, a great benefit, that we can let go of a grievance and move on with a friend, with an intimate partner over time. I’m interested in the legal system. Can the legal system do that as well? Shouldn’t it do it? And when you start looking at it, as I have done as a lawyer, there’s places for forgiveness all over the legal system, whether it’s the pardon power that’s given to executives, including the president, the bankruptcy power, the discretion that a police officer or a prosecutor has to go ahead or not go ahead. So we allow for it. Why don’t we use it? Why don’t we use it more? And it’s beginning to happen. There’s a — more and more jurisdictions are electing prosecutors not because they’re going to lock them up, but because they say, you know, we really shouldn’t be locking people up simply because they had a drug offense. I think that there is a beginning of a bipartisan view that we have become too far on a spectrum and it’s time to swing back. And I’m trying to justify that. And it’s not just that it’s too expensive, which it is, but it’s also too expensive to our moral being, not just to our pocketbooks.

MARTIN: Why do you say that?

MINOW: Because each of us is frail. Each of us makes mistakes. punitiveness that we have so much dumped on the people who get caught and get prosecuted, I think, in part is a way to fail — to deny the contribution of the entire society to the problems of the people who are in trouble. And it’s not to excuse people. Someone who breaks the law breaks the law. There should be consequences. But it — almost always, there’s a larger story. And to understand that larger story is to see that we’re all involved and that, therefore, we should come up with some better solutions. We’re not going to lock ourselves away out of the problems of this society.

MARTIN: Give me a sense of what this would look like. And why don’t we start with juveniles? Because there had been a trend and still continues to be a trend of treating juveniles, particularly those who’ve committed certain crimes, violent crimes, of treating them like adults.

MINOW: We created a juvenile justice system, started 1899, with the idea that it shouldn’t be like the adult system. We should have rehabilitation. We should have social services. Over time, it became actually very punitive without even the guardrails of due process. And these days, in most parts of the country, based on the seriousness of the offense, not the age of the young person, the individual can be transferred to adult court or treated as an adult for purposes of the punishment, sometimes even sent to an adult prison. So how could it be different? The District of Colombia has come up with a diversion system where it is, instead of actually treating a young person as if they’re an adult, and putting them through the process of the criminal system, instead has a restorative justice system, where those who are actually violated are part of a process of identifying, what was the harm? And the one who committed the harm is part of that process as well. And they come up with a plan. And the plan may include community service, reparations, other kinds of activities. And the rest of the community, actually, members of the community can also take part and agree to help.

MARTIN: What about adults?

MINOW: I think that, once we start to see the promise of this strategy, it could be used in some cases with adults as well, maybe even in many more cases than we currently imagine, again, to identify, why did this person engage in this conduct, whether it was theft, or it was assault? Is there some way that person can make repairs, but also work on themselves, get some help, get drug treatment? Vast majority of people who are incarcerated in this country actually have a drug problem or an alcohol problem. It’s not to excuse them, but it is to say, we’re not going to get our — any way out of this until, actually, we deal with those problems.

MARTIN: How do you persuade people to adopt that point of view, even to entertain this idea, given that you have pointed out, and you have reported in your book, just how resistant this culture is to these concepts?

MINOW: The method of persuasion that I use it is what I actually teach my students, which is, we persuade through comparisons and we persuade by finding what people value and showing how their values actually support the purpose that I’m advocating for. So, to see the fresh start that’s allowed for people in financial situations where they have breached your promise, how come we don’t have a fresh start after people have served their time in a criminal sentence? And they still don’t have a fresh start because we have the collateral consequences of crime, where people are barred from getting a loan, getting a job, getting housing, having a professional license, even keeping their children being able to vote. What about a fresh start after that? I think comparisons can help people see, oh, well, why do we do that? There’s something off here. And to see that around the world we have lessons that we can share and we have lessons that we can learn. So, the use of amnesties after there have been civil wars. Maybe there are amnesties that we have had here, for example, after the Vietnam War and the draft resistors were able to be forgiven and brought home, maybe there’s — it’s time for amnesty in our immigration system. I think that we can learn by comparison, and we can see through history, and we can also see oh, I value peace, I value a constructive future. We share those goals, even if we actually initially think we’re on opposite sides.

MARTIN: What about financial crimes? I mean, it is a continuing source of irritation and more for some people that after, say, the mortgage industry fraud, the equity-stripping schemes that were perpetuated during the last recession, nobody went to jail, or maybe very few people went to jail, especially compared to the number of people who lost their homes. And for some people, that’s a deep source of grievance. But other people say, well, what would that accomplish? So, what is your take on that?

MINOW: You know, I have had the privilege of serving as the vice chair of the Legal Services Corporation, which is the federally funded program for legal services, for lawyers for poor people. So I have traveled around the country. I see to this day — here we are, 2019 — communities that are still struggling to come out of that financial disaster, so — where there’s just blighted blocks after block and people who had abandoned their homes. And I feel that fury and outrage as well about the bankers, who not only didn’t face sanctions, but who actually reaped all kinds of financial benefits and are still enjoying those benefits. I will tell you, honestly, at the time, I thought, and I wrote the White House, I think there should be a truth and reconciliation commission. I think we should take a page from South Africa. I think that we should actually document in the most detailed imaginable what happened, why, how did we get to this point? I think that the people who actually induced people to take mortgages that they knew could never be repaid should actually explain, what was the incentive structure? Why were they thinking that short-term benefit was so good, destroying finance and the livelihoods of ordinary people? I think we should have done that. We didn’t do that. As a result, we never acknowledged everything that happened. And I think that’s a serious, serious shortcoming.

MARTIN: OK, but that’s where the law comes in, because a lot of the people who benefited from these schemes, mechanisms, whatever they want to call it, are living quite well right now. They still have their second and third homes, whereas other people are completely broken. Their retirements are destroyed. Their sense of dignity has been destroyed. And that’s where some people say, you know what, I want these people to go to jail. I want them to suffer.

MINOW: Sure. Sure.

MARTIN: And you say to that what?

MINOW: Well, you know, similar arguments were made about the transition from apartheid to democracy. Why don’t we prosecute everyone? Well, some of it is just practicality, the cost of that. There just wasn’t a capacity in that country at that time to do that. And there’s not a capacity, frankly, to turn all of the criminal justice system’s resources over to documenting these crimes. But I don’t think that’s the best reason. The best reason is, don’t — what kind of society do we want to build? How can we shift from looking back to looking to the future? How can we build the foundations for prevention and for actually allowing for fresh starts for people who have been so injured?

MARTIN: There have been a number of people who’ve championed your work and who have tried to share this concept. I know that former President Barack Obama, for example, was very moved by the — your work and your thinking in this area. I know that, this year, for example, a number of people who’ve been working in the restorative justice area have been acknowledged for their work by some prestigious foundations. So, do you feel that your work is being heard? Is there a constituency for this? Are people interested in this?

MINOW: Well, I don’t think it’s just my work. I do think that the restorative justice movement — and it is a movement, and it is a global movement going on for maybe 30 years, drawing on traditional roots of justice, indigenous peoples all over the world, American Indians. Many people in many traditional societies have a conception of justice that is more inclusive and more forward-looking than the adversarial justice that dominates in the West and dominates in the United States. But you mentioned President Obama. President Obama actually looked at the pardon power that the president had, and he said, I think I should use it more than I have. This was in his second term. So he set up a commission to actually develop criteria for granting pardons. And by the end of his time in office, he had commuted more sentences — that means to let people out before the full sentence is done — more than any other president in the history of the United States. And he did so in part with a view that we have become too punitive, and also that there was an inequity. People were being held in jail for long sentences, even though the law had subsequently changed. And so it wasn’t fair to have them punished for so long. I think the fact that he pursued that shows that there is an appetite, a desire, a vision for a more considered justice. On the other hand, I will be frank — and not to be partisan, but President Trump’s use of the pardon power is something that made me realize, actually, I need a chapter in the book on when not to forgive, because I think that the undisciplined way in which he’s used this power is unacceptable. The very first pardon he gave was for Joseph — for Arpaio, the Sheriff Arpaio, who had been convicted, not only of civil rights violations, but of contempt of court, for continuing to violate the civil rights of people based on their ethnicity and their appearance. And to pardon someone for violating contempt of court is itself to express contempt of the judiciary and contempt of the rule of law. If we don’t have respect for the rule of law, then that’s the end of any chance of constraining abuses of power.

MARTIN: I know that, for many people, this whole question of forgiveness is in the public domain again in part because of this extraordinary scene in October of the brother of a man, an innocent, unarmed man, who was killed in his own home by a police officer. The victim in this case was a man named Botham Jean in Dallas. And the brother of the victim said publicly, “I forgive you,” and actually asked to hug her. And it was a very profound scene for many people, and just really pushed a lot of people’s buttons. But you have been thinking about this for so long. Does it just make you crazy, or do you feel…

MINOW: Well, it does. It does. And how about Dylann Roof’s assassination of people at a prayer session, a study session at Mother Emanuel Church?

MARTIN: To which they had invited him and welcomed him.

MINOW: And they — and welcomed him, because he looked like he was coming to study and join them. And he opened fire on them, and unrepentantly said white supremacist, hateful things. And several members of the families of those who were killed, at the arraignment, said, we forgive you. And I certainly have been thinking about this ever since. And on the one hand, I am astonished. I am in awe of that. Can’t imagine it myself. On the other hand, are black people expected to forgive? Is there a racial dimension here? Are women expected to forgive? If you don’t have much power, is forgiveness a kind of, this is how you get along in the world? So I worry about that a great, great deal. Yes, I have been thinking about this for a long time. For — almost — over 20 years ago, I wrote a book about responses to genocide and mass atrocity, and looking at the limits of law and the limits of indifference. If you do nothing in a society, and you have mass violence, how about slavery in the United States, you will actually lay the seeds for future violence. That — I’m convinced of that. We see it all over the world. Law is one of the tools. Art, memorial is another tool. That’s what I tried to explore. And I wrote a book that was called “Between Vengeance and Forgiveness,” looking for alternatives. And I will tell you, I have had the chance to talk with people in many parts of the world, in China, in Argentina, about these issues. And everywhere, people say to me, why are you looking for an alternative to forgiveness? Why can’t we have more forgiveness? That’s what really led me to look. So, I think we could have more forgiveness, but I worry about racial bias, about economic bias and who’s expected to forgive and who gets forgiveness.

MARTIN: Martha Minow, thank you so much for talking with us.

MINOW: Thank you.