How forgiveness can create a more just legal system

Pardons, commutations and bankruptcy laws are all tools of forgiveness within the US legal system. Are we using them frequently enough, and with fairness? Law professor Martha Minow outlines how these merciful measures can actually reinforce racial and economic inequality across the country -- and makes the case for expanding restorative justice, a system that focuses on accountability and reconciliation rather than punishment, to create a fairer society for all.

Would you ever forgive a person
who kills a member of your family?

In September of 2019,

Dallas police officer Amber Guyger
was sentenced for murder,

and then the brother of the victim

forgave her.

Brandt Jean was 18 years old,

and I joined the rest of the country
watching on television in awe

at that act of grace.

But I also worried.

I worried that people
who are African American like Brandt Jean

are expected to forgive
more often than other people.

And I worried that a white
police officer like Amber Guyger

receives a lesser sentence

than other people
who commit wrongful killings.

But because I'm a law professor,

I also worried about the law itself.

The law leans so severely
towards punishment these days

that it's part of the problem.

And that's what I want to talk about here.

The powerful example
of one individual's forgiveness

makes me worry that lawyers and officials
too often overlook the tools

that law itself creates
to allow forgiveness,

when the principle should be
the cornerstone of a thriving society.

I worry that lawyers and officials do not
adequately use the tools of forgiveness,

by which I mean letting go
of justified grievance.

And those tools are many.

They include pardons,
commutations, expungement,

bankruptcy for debt

and the discretion that's held
by police and prosecutors and judges.

But I also worry -- I worry a lot --

(Laughter)

I worry that these tools, when used,
replicate the disparities,

the inequities along the lines
of race and class and other markers

of advantage and disadvantage.

Biases or privileged access are at work

when United States presidents
pardon people charged with crimes.

Historically, white people
are pardoned four times as often

as members of minority groups
for the same crime, same sentence.

Forgiveness between individuals
is supported by every religious tradition,

every philosophic tradition.

And medical evidence now shows

the health benefits of letting go
of grievances and resentments.

As Nelson Mandela
led South Africa's transition

from apartheid to democracy,

he explained,

"Resentment is like drinking a poison
and hoping it will kill your enemies."

Law can remove the penalties for those
who apologize and seek forgiveness.

For example, in 39 states
in the United States

and the District of Columbia,

there are laws that allow
medical professionals to apologize

when something goes wrong

and not fear that that statement
could later be used against them

in an action for damages.

More actively, bankruptcy law
offers debtors, under some conditions,

the chance to start anew.

Pardons and expungements
sealing criminal records can, too.

I have been teaching law
for almost 40 years, hard to believe,

but recently, I realized

that we don't teach law students
about the tools of forgiveness

that are within the legal system,

and nor do law schools
usually explore

the potential for new
avenues for forgiveness

that law can adopt or assist.

These are lost opportunities.

These are lost obligations, even,

because the students that I teach

will become prosecutors, judges,
governors, presidents.

Barack Obama, my former student,

used his power as the President
of the United States to give pardons.

That released several hundred people
from prison after the law changed

to provide shorter sentences
for the same drug crimes

for which they had been convicted.

But if he hadn't used his pardon power,
they would still be in prison.

Legal tools of forgiveness
should be used more,

but not without reason and not with bias.

A "New Yorker" cartoon shows a judge
with a big nose and a big mustache

looking down at a defendant
with the exact same nose

and exact same mustache

and says, "Obviously not guilty."

(Laughter)

Forgiveness could undermine
the commitment that law has

to treat people the same
under the same circumstances,

to apply rules evenly.

In this age of resentment,
mass incarceration,

widespread consumer debt,

we need more forgiveness,
but we need a philosophy of forgiveness.

We need to forgive fairly.

Contrast the treatment globally
of child soldiers

with the treatment of juvenile
offenders in the United States.

International human rights
condemn and punish adults

who involve children in armed conflict

as those most responsible,

but treat the children themselves
quite differently.

The International Criminal Court,

now with 122 member nations,

convicted Thomas Lubanga, warlord
in the [Democratic Republic of the] Congo,

for enlisting, recruiting and deploying
children, teens, as soldiers.

Many nations commit to ensuring
that people under the age of 15

do not become child soldiers,

and most nations treat those
who do become soldiers

not as objects of punishment

but as people deserving a fresh start.

Compare and contrast how the United States
treats juvenile offenders,

where we severely punish minors,

often moving them to adult courts,
even adult prisons.

And yet, like child soldiers,

teens and children are drawn
into violent activity in the United States

when there are few options,

when they are threatened

or when adults induce them
with money or ideology.

The rhetoric of innocence is resonant
when we talk about child soldiers,

but not when we talk about
teen gang members in the United States.

Yet in both settings, youth are caught
in worlds that are made by adults,

and forgiveness can offer
both accountability and fresh starts.

What if, instead, young people
caught in criminal activity and violence

could have chances
to accept responsibility

while learning and rebuilding their lives
and their own communities?

Legal frameworks inviting youth
to describe their conduct

could also involve community members
to hear and forgive.

Called "restorative justice,"

such efforts emphasize
accountability and service

rather than punishment.

Many schools in the United States have
turned to use restorative justice methods

to resolve conflicts and to prevent them,

and to disrupt
the school-to-prison pipeline.

Some American high schools
have replaced automatic suspensions

with opportunities for victims
to narrate their experiences

and for offenders to take
responsibility for their actions.

As they describe their experiences
and feelings about a theft

or hateful graffiti or a verbal
or physical assault,

the victims and offenders
often express strong emotions.

And other members
of the community take turns

describing the impact
of the offense on them.

The leader is often a student peer,
who is trained to deescalate the conflict

and orchestrate a conversation
about what the offender can do

that would help the victim.

Together, they come to an agreement
about how to move forward,

what the wrongdoer can do
to repair the injury

and what all could do
to better avoid future conflicts.

Consider this example,
recently in a publication.

A young woman named Mercedes M.
transferred, in California,

from one high school to another

after she was so repeatedly suspended
in her old high school

for getting into fights.

And here in her new high school,

two other young women accused her of lying

and called her the b-word.

A counselor came over and talked to her
and earned enough trust

that she acknowledged she had stolen
the shoes of one of the other classmates.

Turns out, the three of them
had known each other for a long time,

and they didn't know any other way
to deal with each other

other than to fight.

The facilitator invited them
to participate in a circle,

a confidential conversation
about what happened,

and they agreed.

And initially, each of them
expressed a lot of emotion.

And then Mercedes apologized.

And she said she had stolen the shoes,

but she did so because
she wanted to sell them

and take the money to pay for a drug test

so that her mother
could show she was clean

and try to regain custody
of two younger children

who were then in state protective care.

The other girls heard this,

saw Mercedes crying

and they hugged her.

They did not ask her
to return what she'd stolen,

but they did say they wanted a restart.

They wanted a reason they could trust her.

Later, Mercedes explained

that she was sure she would
have been suspended

if they hadn't had this process.

And her high school has reduced
suspensions by more than half

through the use of this kind
of restorative justice method.

Restorative justice alternatives
involve offenders and victims

in communicating in ways

that an adversarial and defensive
process does not allow,

and it's become the go-to method

in places like the District of Columbia
juvenile justice system

and innovations like
Los Angeles's Teen Court.

If tuned to fairness,

forgiveness methods like bankruptcy
would be available

not only for the for-profit college
that goes belly-up

but also for the students
stuck with the loans;

pardons would not be given
to campaign contributors;

and black men would no longer have
20 percent longer criminal sentences

than do white men,

due to how judges exercise discretion.

Forgiveness across the board
is one way to avoid such biases.

Sometimes, a society just needs a reset

when it comes to punishment and debt.

The Bible calls for periodic
forgiveness of debts

and freeing prisoners,

and it recently helped to inspire
a global movement.

Jubilee 2000 joined Pope John Paul II

and rock star Bono and over 60 nations

in an effort to seek the cancellation
and succeed in canceling

the debt of developing countries,

amounting to over 100 billion dollars

of debt canceled,

resulting in measurable
reduction in poverty.

In a similar spirit, there are people
who are copying the techniques

of commercial debt collectors

who purchase debt
for pennies on the dollar

and then seek to enforce it.

Late-night television host John Oliver
partnered with a nonprofit group

called RIP Medical Debt,

and for only 60,000 dollars,

they purchased 15 million dollars'
worth of medical debt,

and then they forgave it.

(Applause)

That allowed nearly 9,000 people
to have a restart in their lives.

This kind of precedent should trigger
and encourage more such actions.

It's time for a reset,

given mass incarceration,

medical and consumer debt

and given indigent criminal defendants

who are charged and put in debt

because they're expected to pay
for their own probation officers

and their own electronic monitors.

Forgiving violations of law

or promises to pay back loans

does pose risks.

Forgiveness may encourage more violations.

Economists even have a name for it.

They call it "moral hazard."

Should there be amnesty
for immigration violations?

Should a president offer pardons
to protect himself

or to induce lawbreaking?

These are tough questions for our time.

But escalating resentments
hold their own dangers.

So does attributing blame to individuals

for circumstances largely outside
their own control.

To ask how law may forgive
is not to deny the fact of wrongdoing.

Rather, it's to widen the lens

to enable glimpses of the larger patterns

and to enable new choices
that can go forward

if we can wipe the slate clean.

Thank you.

(Applause)