How forgiveness can create a more just legal system
-
0:01 - 0:06Would you ever forgive a person
who kills a member of your family? -
0:07 - 0:10In September of 2019,
-
0:10 - 0:14Dallas police officer Amber Guyger
was sentenced for murder, -
0:16 - 0:19and then the brother of the victim
-
0:19 - 0:21forgave her.
-
0:22 - 0:25Brandt Jean was 18 years old,
-
0:25 - 0:30and I joined the rest of the country
watching on television in awe -
0:30 - 0:32at that act of grace.
-
0:33 - 0:34But I also worried.
-
0:35 - 0:40I worried that people
who are African American like Brandt Jean -
0:40 - 0:44are expected to forgive
more often than other people. -
0:45 - 0:49And I worried that a white
police officer like Amber Guyger -
0:49 - 0:51receives a lesser sentence
-
0:51 - 0:54than other people
who commit wrongful killings. -
0:55 - 0:57But because I'm a law professor,
-
0:58 - 1:01I also worried about the law itself.
-
1:02 - 1:07The law leans so severely
towards punishment these days -
1:07 - 1:09that it's part of the problem.
-
1:10 - 1:12And that's what I want to talk about here.
-
1:13 - 1:18The powerful example
of one individual's forgiveness -
1:18 - 1:23makes me worry that lawyers and officials
too often overlook the tools -
1:23 - 1:28that law itself creates
to allow forgiveness, -
1:28 - 1:33when the principle should be
the cornerstone of a thriving society. -
1:34 - 1:40I worry that lawyers and officials do not
adequately use the tools of forgiveness, -
1:40 - 1:45by which I mean letting go
of justified grievance. -
1:45 - 1:46And those tools are many.
-
1:46 - 1:51They include pardons,
commutations, expungement, -
1:51 - 1:53bankruptcy for debt
-
1:53 - 1:58and the discretion that's held
by police and prosecutors and judges. -
1:59 - 2:01But I also worry -- I worry a lot --
-
2:01 - 2:02(Laughter)
-
2:02 - 2:09I worry that these tools, when used,
replicate the disparities, -
2:09 - 2:13the inequities along the lines
of race and class and other markers -
2:13 - 2:15of advantage and disadvantage.
-
2:15 - 2:19Biases or privileged access are at work
-
2:19 - 2:25when United States presidents
pardon people charged with crimes. -
2:25 - 2:29Historically, white people
are pardoned four times as often -
2:29 - 2:34as members of minority groups
for the same crime, same sentence. -
2:36 - 2:41Forgiveness between individuals
is supported by every religious tradition, -
2:41 - 2:44every philosophic tradition.
-
2:44 - 2:46And medical evidence now shows
-
2:46 - 2:51the health benefits of letting go
of grievances and resentments. -
2:52 - 2:57As Nelson Mandela
led South Africa's transition -
2:57 - 2:59from apartheid to democracy,
-
2:59 - 3:00he explained,
-
3:00 - 3:07"Resentment is like drinking a poison
and hoping it will kill your enemies." -
3:08 - 3:13Law can remove the penalties for those
who apologize and seek forgiveness. -
3:13 - 3:17For example, in 39 states
in the United States -
3:17 - 3:19and the District of Columbia,
-
3:19 - 3:22there are laws that allow
medical professionals to apologize -
3:22 - 3:23when something goes wrong
-
3:23 - 3:28and not fear that that statement
could later be used against them -
3:28 - 3:31in an action for damages.
-
3:31 - 3:36More actively, bankruptcy law
offers debtors, under some conditions, -
3:36 - 3:38the chance to start anew.
-
3:38 - 3:43Pardons and expungements
sealing criminal records can, too. -
3:44 - 3:50I have been teaching law
for almost 40 years, hard to believe, -
3:50 - 3:53but recently, I realized
-
3:53 - 3:57that we don't teach law students
about the tools of forgiveness -
3:57 - 3:59that are within the legal system,
-
3:59 - 4:02and nor do law schools
usually explore -
4:02 - 4:06the potential for new
avenues for forgiveness -
4:06 - 4:08that law can adopt or assist.
-
4:09 - 4:11These are lost opportunities.
-
4:11 - 4:13These are lost obligations, even,
-
4:13 - 4:17because the students that I teach
-
4:17 - 4:22will become prosecutors, judges,
governors, presidents. -
4:23 - 4:25Barack Obama, my former student,
-
4:26 - 4:31used his power as the President
of the United States to give pardons. -
4:32 - 4:37That released several hundred people
from prison after the law changed -
4:37 - 4:40to provide shorter sentences
for the same drug crimes -
4:40 - 4:42for which they had been convicted.
-
4:42 - 4:46But if he hadn't used his pardon power,
they would still be in prison. -
4:47 - 4:50Legal tools of forgiveness
should be used more, -
4:50 - 4:54but not without reason and not with bias.
-
4:54 - 4:58A "New Yorker" cartoon shows a judge
with a big nose and a big mustache -
4:58 - 5:02looking down at a defendant
with the exact same nose -
5:02 - 5:03and exact same mustache
-
5:03 - 5:06and says, "Obviously not guilty."
-
5:06 - 5:07(Laughter)
-
5:07 - 5:12Forgiveness could undermine
the commitment that law has -
5:12 - 5:16to treat people the same
under the same circumstances, -
5:16 - 5:18to apply rules evenly.
-
5:18 - 5:22In this age of resentment,
mass incarceration, -
5:22 - 5:25widespread consumer debt,
-
5:25 - 5:29we need more forgiveness,
but we need a philosophy of forgiveness. -
5:29 - 5:31We need to forgive fairly.
-
5:33 - 5:37Contrast the treatment globally
of child soldiers -
5:37 - 5:41with the treatment of juvenile
offenders in the United States. -
5:42 - 5:46International human rights
condemn and punish adults -
5:46 - 5:48who involve children in armed conflict
-
5:48 - 5:50as those most responsible,
-
5:50 - 5:54but treat the children themselves
quite differently. -
5:55 - 5:57The International Criminal Court,
-
5:57 - 6:00now with 122 member nations,
-
6:00 - 6:05convicted Thomas Lubanga, warlord
in the [Democratic Republic of the] Congo, -
6:05 - 6:12for enlisting, recruiting and deploying
children, teens, as soldiers. -
6:12 - 6:17Many nations commit to ensuring
that people under the age of 15 -
6:17 - 6:19do not become child soldiers,
-
6:19 - 6:23and most nations treat those
who do become soldiers -
6:23 - 6:26not as objects of punishment
-
6:26 - 6:28but as people deserving a fresh start.
-
6:29 - 6:35Compare and contrast how the United States
treats juvenile offenders, -
6:35 - 6:37where we severely punish minors,
-
6:37 - 6:41often moving them to adult courts,
even adult prisons. -
6:41 - 6:44And yet, like child soldiers,
-
6:44 - 6:49teens and children are drawn
into violent activity in the United States -
6:49 - 6:51when there are few options,
-
6:51 - 6:52when they are threatened
-
6:52 - 6:56or when adults induce them
with money or ideology. -
6:57 - 7:04The rhetoric of innocence is resonant
when we talk about child soldiers, -
7:04 - 7:08but not when we talk about
teen gang members in the United States. -
7:09 - 7:13Yet in both settings, youth are caught
in worlds that are made by adults, -
7:13 - 7:17and forgiveness can offer
both accountability and fresh starts. -
7:18 - 7:23What if, instead, young people
caught in criminal activity and violence -
7:23 - 7:27could have chances
to accept responsibility -
7:27 - 7:32while learning and rebuilding their lives
and their own communities? -
7:32 - 7:36Legal frameworks inviting youth
to describe their conduct -
7:36 - 7:40could also involve community members
to hear and forgive. -
7:40 - 7:42Called "restorative justice,"
-
7:42 - 7:46such efforts emphasize
accountability and service -
7:46 - 7:48rather than punishment.
-
7:49 - 7:54Many schools in the United States have
turned to use restorative justice methods -
7:54 - 7:58to resolve conflicts and to prevent them,
-
7:58 - 8:00and to disrupt
the school-to-prison pipeline. -
8:01 - 8:05Some American high schools
have replaced automatic suspensions -
8:05 - 8:09with opportunities for victims
to narrate their experiences -
8:09 - 8:12and for offenders to take
responsibility for their actions. -
8:13 - 8:17As they describe their experiences
and feelings about a theft -
8:17 - 8:22or hateful graffiti or a verbal
or physical assault, -
8:22 - 8:25the victims and offenders
often express strong emotions. -
8:26 - 8:29And other members
of the community take turns -
8:29 - 8:31describing the impact
of the offense on them. -
8:33 - 8:39The leader is often a student peer,
who is trained to deescalate the conflict -
8:39 - 8:43and orchestrate a conversation
about what the offender can do -
8:43 - 8:45that would help the victim.
-
8:45 - 8:49Together, they come to an agreement
about how to move forward, -
8:49 - 8:52what the wrongdoer can do
to repair the injury -
8:52 - 8:56and what all could do
to better avoid future conflicts. -
8:56 - 9:00Consider this example,
recently in a publication. -
9:00 - 9:05A young woman named Mercedes M.
transferred, in California, -
9:05 - 9:07from one high school to another
-
9:07 - 9:10after she was so repeatedly suspended
in her old high school -
9:10 - 9:12for getting into fights.
-
9:12 - 9:14And here in her new high school,
-
9:15 - 9:20two other young women accused her of lying
-
9:20 - 9:23and called her the b-word.
-
9:23 - 9:27A counselor came over and talked to her
and earned enough trust -
9:27 - 9:32that she acknowledged she had stolen
the shoes of one of the other classmates. -
9:33 - 9:36Turns out, the three of them
had known each other for a long time, -
9:36 - 9:39and they didn't know any other way
to deal with each other -
9:39 - 9:40other than to fight.
-
9:41 - 9:45The facilitator invited them
to participate in a circle, -
9:46 - 9:48a confidential conversation
about what happened, -
9:48 - 9:49and they agreed.
-
9:49 - 9:54And initially, each of them
expressed a lot of emotion. -
9:55 - 9:58And then Mercedes apologized.
-
9:59 - 10:01And she said she had stolen the shoes,
-
10:01 - 10:05but she did so because
she wanted to sell them -
10:05 - 10:09and take the money to pay for a drug test
-
10:09 - 10:12so that her mother
could show she was clean -
10:12 - 10:16and try to regain custody
of two younger children -
10:16 - 10:19who were then in state protective care.
-
10:21 - 10:23The other girls heard this,
-
10:23 - 10:25saw Mercedes crying
-
10:25 - 10:26and they hugged her.
-
10:27 - 10:30They did not ask her
to return what she'd stolen, -
10:30 - 10:32but they did say they wanted a restart.
-
10:32 - 10:35They wanted a reason they could trust her.
-
10:35 - 10:37Later, Mercedes explained
-
10:37 - 10:39that she was sure she would
have been suspended -
10:39 - 10:41if they hadn't had this process.
-
10:41 - 10:45And her high school has reduced
suspensions by more than half -
10:45 - 10:48through the use of this kind
of restorative justice method. -
10:49 - 10:53Restorative justice alternatives
involve offenders and victims -
10:53 - 10:55in communicating in ways
-
10:55 - 10:58that an adversarial and defensive
process does not allow, -
10:58 - 11:01and it's become the go-to method
-
11:01 - 11:05in places like the District of Columbia
juvenile justice system -
11:05 - 11:09and innovations like
Los Angeles's Teen Court. -
11:10 - 11:12If tuned to fairness,
-
11:13 - 11:17forgiveness methods like bankruptcy
would be available -
11:17 - 11:21not only for the for-profit college
that goes belly-up -
11:21 - 11:24but also for the students
stuck with the loans; -
11:25 - 11:28pardons would not be given
to campaign contributors; -
11:28 - 11:33and black men would no longer have
20 percent longer criminal sentences -
11:33 - 11:34than do white men,
-
11:34 - 11:37due to how judges exercise discretion.
-
11:38 - 11:44Forgiveness across the board
is one way to avoid such biases. -
11:44 - 11:48Sometimes, a society just needs a reset
-
11:48 - 11:51when it comes to punishment and debt.
-
11:51 - 11:56The Bible calls for periodic
forgiveness of debts -
11:56 - 11:59and freeing prisoners,
-
11:59 - 12:02and it recently helped to inspire
a global movement. -
12:03 - 12:07Jubilee 2000 joined Pope John Paul II
-
12:07 - 12:10and rock star Bono and over 60 nations
-
12:10 - 12:15in an effort to seek the cancellation
and succeed in canceling -
12:15 - 12:17the debt of developing countries,
-
12:17 - 12:20amounting to over 100 billion dollars
-
12:20 - 12:22of debt canceled,
-
12:24 - 12:27resulting in measurable
reduction in poverty. -
12:29 - 12:32In a similar spirit, there are people
who are copying the techniques -
12:32 - 12:34of commercial debt collectors
-
12:34 - 12:37who purchase debt
for pennies on the dollar -
12:37 - 12:39and then seek to enforce it.
-
12:40 - 12:43Late-night television host John Oliver
partnered with a nonprofit group -
12:44 - 12:46called RIP Medical Debt,
-
12:48 - 12:50and for only 60,000 dollars,
-
12:50 - 12:55they purchased 15 million dollars'
worth of medical debt, -
12:55 - 12:57and then they forgave it.
-
12:58 - 13:02(Applause)
-
13:04 - 13:11That allowed nearly 9,000 people
to have a restart in their lives. -
13:11 - 13:16This kind of precedent should trigger
and encourage more such actions. -
13:16 - 13:18It's time for a reset,
-
13:18 - 13:19given mass incarceration,
-
13:19 - 13:22medical and consumer debt
-
13:22 - 13:24and given indigent criminal defendants
-
13:24 - 13:27who are charged and put in debt
-
13:27 - 13:31because they're expected to pay
for their own probation officers -
13:31 - 13:33and their own electronic monitors.
-
13:34 - 13:37Forgiving violations of law
-
13:37 - 13:39or promises to pay back loans
-
13:39 - 13:41does pose risks.
-
13:41 - 13:44Forgiveness may encourage more violations.
-
13:44 - 13:46Economists even have a name for it.
-
13:46 - 13:48They call it "moral hazard."
-
13:50 - 13:53Should there be amnesty
for immigration violations? -
13:53 - 13:57Should a president offer pardons
to protect himself -
13:57 - 13:59or to induce lawbreaking?
-
13:59 - 14:02These are tough questions for our time.
-
14:03 - 14:07But escalating resentments
hold their own dangers. -
14:07 - 14:10So does attributing blame to individuals
-
14:10 - 14:14for circumstances largely outside
their own control. -
14:14 - 14:21To ask how law may forgive
is not to deny the fact of wrongdoing. -
14:21 - 14:25Rather, it's to widen the lens
-
14:25 - 14:28to enable glimpses of the larger patterns
-
14:28 - 14:32and to enable new choices
that can go forward -
14:32 - 14:34if we can wipe the slate clean.
-
14:35 - 14:36Thank you.
-
14:37 - 14:40(Applause)
- Title:
- How forgiveness can create a more just legal system
- Speaker:
- Martha Minow
- Description:
-
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.
- Video Language:
- English
- Team:
- closed TED
- Project:
- TEDTalks
- Duration:
- 14:53
Erin Gregory edited English subtitles for How forgiveness can create a more just legal system | ||
Erin Gregory approved English subtitles for How forgiveness can create a more just legal system | ||
Erin Gregory edited English subtitles for How forgiveness can create a more just legal system | ||
Camille Martínez accepted English subtitles for How forgiveness can create a more just legal system | ||
Camille Martínez edited English subtitles for How forgiveness can create a more just legal system | ||
Camille Martínez edited English subtitles for How forgiveness can create a more just legal system | ||
Joseph Geni edited English subtitles for How forgiveness can create a more just legal system | ||
Joseph Geni edited English subtitles for How forgiveness can create a more just legal system |