In her new book, “When Should Law Forgive?,” the lawyer and academic Martha Minow looks at several areas where she believes American society has become too punitive and offers ways to fix them. Minow is interested in why some societies have found it easier than others to grant forgiveness to wrongdoers; she is also captivated by how and why certain societies have been able to put into place policies that minimize crime and misbehavior, which in turn help us understand that bad behavior is the result of more than individual choice. As she writes, “Child soldiers and other adolescents accused of criminal law violations may not be entirely innocent, but neither are they responsible for the social conditions in which they make their choices. The same can be said of individuals who are drowning in consumer debt or student loans, and even of sovereign nations, cities, and states in debt. Each is to blame when they violate promises to pay back loans or laws against violence, but each also is embedded in larger social patterns that construct limited and often poor options.”
A former dean of Harvard Law School and a professor to Barack Obama, Minow worked on the international commission that tried to bring a measure of reconciliation to post-conflict Kosovo. She is currently the three-hundredth-anniversary university professor at Harvard. I recently spoke with her by phone. During our conversation, which has been edited for length and clarity, we discussed what child soldiers teach us about forgiveness, the lessons of the #MeToo movement, and how forgiving Americans should be about the misdeeds of the Trump era.
Why did you want to write this book right now, in 2019? I know that’s a clichéd question, which I hope you will forgive me for.
No, it’s a perfectly fair question. I believe that we have come to be the most incarcerating society in the history of humanity, and that there’s a responsibility for those of us who know something about the law to address its causes and responses. I also see this country and others still emerging from two other big problems. One is the consequences of the 2008 financial disaster, and the other is divisions, maybe produced by inequalities ethnically, by class, and so forth. The age of resentment. And it’s in that context that forgiveness seems, to me, a very valuable and important concept, not just interpersonally but societally and, again, to the law. Major civilizations in the past have had moments where they’ve had to ask, “Are we too punitive?,” whether it’s the Jubilee in the Bible, or the Hammurabi code, or the response to the Thirty Tyrants in ancient Greece. And they each came up with an idea of a restart that had an element of forgiveness, of letting go of justified resentment. And I think we’re at that kind of moment right now in this country.
You mention forgiveness as a concept that exists “not just interpersonally but societally.” One has to do with inner peace, whether it’s the person who’s doing the forgiving or the person who is asking for forgiveness. And the other is about mass incarceration and so on, and how we can create a better, more healthy, more just society. How much do you view those two things as separate?
I think you’re right to identify them as two phases of a phenomenon, but the phenomenon is one that is supported by every religion, every philosophy, every civilization. And it’s supported in both dimensions—that is, interpersonally and also in societal tools for forgiveness, whether it’s amnesties or bankruptcy. And I don’t think it’s by accident. People who study large mammals actually report on the rituals they develop after conflict to soothe each other and start all over again. So I think that there’s a survival dimension for each individual, and for human beings, to the experience of letting go of resentments and having a fresh start. I do think that there is an enormous resource that each of us has to let go of our resentments, and/or to seek forgiveness. But what most interests me is at the societal level. And that’s why I’m talking about law.
One of the lines your book is trying to walk is that the law should encourage forgiveness in some way, but, at the same time, we don’t want forgiveness mandated by the law, because that has a certain insincerity or artificiality. As you write, “Forgiving under government pressure is not really forgiveness, and it places further burdens on people already victimized.” Can you discuss that line?
Sure. So, look, I think that there are two ways in which law can connect with forgiveness. One, as you say, is to influence interpersonal forgiveness. And on that I feel, yes, very strongly that the law should not force, or even pressure, individuals to forgive, but can create context where there’s a possibility of forgiveness. It can, for example, remove the disincentive on health professionals to apologize in the context of potential malpractice, by saying, “Look, anything you say is not going to be admitted into a malpractice case.” That’s not pressing the victim to forgive. It’s just making space. Another way in which the law can make space is by having restorative-justice conversations, so the victims and perpetrators can talk to each other and hear about what happened. But, again, the law, in my view, should not put any pressure on victims to forgive.
But the second—and, for me, more interesting—way in which law can forgive is not about trying to influence interpersonal relations: the sentiment, the emotions, and so forth. It’s instead the law itself letting go of what might be justified grounds to proceed and to punish, which the law can do with pardons, with the expungements of criminal records, with bankruptcies. Those are tools that are built into the system, and we don’t have a theory about when they should be used and how. And here there’s a line that I am struggling to walk in the book, which is to uphold the laws—the commitment and obligation to treat likes alike, to have rules that have consequences for misconduct—on the one hand. And on the other hand, yes, to take advantage of this possibility of letting go of otherwise justified punishment in some cases.
Can you explain why child soldiers are such an interesting case study for some of the issues you’re talking about, and why you chose to focus on them so much in the book?
There is a really fascinating breakthrough in international criminal law. The very first prosecution in the International Criminal Court against [the Congolese militia leader] Thomas Lubanga secured a conviction for recruiting young people to join armed conflict, as that itself is a human-rights violation, a crime against humanity, to deprive people of their childhood by conscripting them or coercing them to take up arms, to be themselves killers and rapists. What’s interesting is that, in the international human-rights context, it is the adults who recruit the young people into armed conflict who are to blame. It’s not the young people themselves. And in international criminal law there’s mostly a decision to not punish young people, even if they did really horrible things, and that’s a very striking contrast to how the United States treats juvenile offenders.
Even though we pioneered the idea of a juvenile court that would treat young people differently than adults, we’ve drifted back into very punitive approaches, automatically, in many places, or by discretion, treating young people as adults simply by the nature of the crime that they committed. And there are striking similarities in both situations, because, in the United States, young people get caught up in the drug trade, or other kinds of crime, often because adults have created a world that either recruits them or coerces them, or doesn’t give them other options. And we don’t blame the adults in this circumstance, the way that international criminal law blames the adults.
One complication your book does raise is that children may not understand what they did. And so, if you don’t have an understanding of your crime or your behavior, that can make forgiveness more complicated.
It is a very complicated situation, but, to make it even more complicated, oftentimes young people do know that they did something wrong. I don’t think we’re even in the realm of talking about forgiveness unless there was a wrong, unless there were rightful grounds for grievance. If there’s somebody who lacks the mental capacity to even know they did something wrong, they should be excused, or there should be a defense against blaming them. But it’s not about forgiveness, because it’d be wrong to punish them in the first place.
I think the tragedy is that we often have situations where young people know they did something wrong, but they don’t have many other options for how to live, how to develop self-control, how to have other ways to spend their time. And I do think that it is important to recognize that we can hold people responsible and still not be punitive. And that’s a lot of what I think the case of both child soldiers and juvenile offenders allows us to talk about.We want to express that there’s right and wrong, and people cross the line. They should be held responsible, but that doesn’t mean that we should be so punitive. We can hold people responsible in ways that look more to the future, that call for restitution, reparations, that involve people in actually educating others about what was wrong in their conduct.
What societies or cultures or countries have done that in a way that you think has been helpful, or that you were impressed by?
There are pockets of experiments in many countries that I think are very promising. There are efforts in Scandinavia, there are efforts in Scotland, around these issues of restorative justice, but there are in this country, too. The District of Columbia has turned to the restorative-justice approach in dealing with juvenile crime, as an example. And it’s also, in my view, very telling that many traditional societies are drawing on older forms of justice that, again, try to move away from punishment and instead toward future-oriented, constructive efforts. So American Indian tribes, for example, and First Nations people in Canada have developed practices that they currently are using with juvenile offenders and others that are much more forward-looking than backwards-looking.
In your book, you link together two ideas of forgiveness that I think a lot of people might see as distinct. One is about economic debt, and someone’s personal economic situation, and the other is around things like child soldiers or war crimes. Why did you want to link them?
It may seem that it’s unusual to put debt and crime together. I also talk about immigration violations and other kinds of violations. But debt and crime, in particular, may seem that they’re in different realms, but it’s not by accident that we use the word “forgiveness” in both contexts. And, indeed, there are, again, older sources—for example, the Jubilee—that combined the two. And the restart button that I referred to, of some societies saying, “We have to start over,” actually combines the treatment of people criminalized because they had debts they haven’t paid and other kinds of crimes.
I also think that one of the major ways that lawyers learn—and I hope we can share this with others in society—is by comparing, and when we have a fresh-start possibility in the context of debt, that’s actually very much at the source of the creativity in the United States. You know, the innovation culture. People aren’t blamed forever if they take a risk and they mess up, and then you can start over. In Silicon Valley, it’s often the case that people won’t even invest in a new startup unless the people have already tried something and failed. It’s part of something that we value in this society, a kind of innovation.
We don’t have a fresh-start idea in the criminal-justice system. Instead we have the collateral consequences of crime, which follow people sometimes for the rest of their lives. How counterproductive is that, rather than actually saying someone’s paid their debt to society? There, again, we use the phrase “paid their debts.” Well, then, why shouldn’t they be able to start over? So, I think that the comparison between the two could be very productive.
We’re going to move on from the Trump era at some point, unless we have the Trump children governing the country for all of eternity. There will be a reckoning about these years, and the various misdeeds and crimes committed. And I think there will be a debate about how forgiving Americans should be. How do you think about this question?
I’d make two comments about that point, in opposite directions. I’m old enough that I lived through the Watergate era. I thought that what Richard Nixon did to democracy and to this country was reprehensible and unforgivable. And when he was pardoned by President Ford I thought that was horrible. I recall Bob Woodward saying it was horrible and a misuse of power. Bob Woodward, more recently, has said, Actually, President Ford was right. It helped the country to move on, put a chapter behind us. And I guess I have come around to that view as well, that being kicked out of office and humiliated was some punishment for Richard Nixon, but, more importantly, for the country, it was important to be able to rebuild the trust in the justice system, rebuild the Department of Justice, as Edward Levi did.
On the other hand, I think about the 2008 financial disaster. Afterward, there really was very little reckoning and very little responsibility placed on those who produced it. And there are still people all over this country, and many parts of the world, who are dealing with the repercussions of financial manipulations that left a small group of people very well off and a lot of other people, again, a decade later, still struggling. I don’t think that forgiveness is appropriate there, because we’ve never even held people responsible. Maybe we could have had a truth-and-reconciliation commission, at least, to find out how it came to pass that we built so many financial institutions motivated to convince people who could not pay back mortgages to take them up. And so, again, I think that forgiveness is only relevant when we’ve already established that there is a wrong. We haven’t even named what those wrongs were. And, once we’ve named them, then we can talk about forgiveness.
With the Nixon analogy, it feels unlikely that the next election, or two elections, are going to be perceived by the Trump people or their supporters as punishment for their bad behavior. It seems like we’re dealing with a different situation now.
Well, I definitely agree with that. We do not have Republicans right now acknowledging that wrong has been done by this President, as we did at the time of Watergate. And we do not have people sharing the same news reports. The people who watch Fox News think what the impeachment process is unearthing is all a lie. So, we’re living in a time of polarization, not just on politics but on what people believe to be true. And that makes it much more difficult to have a coming together around how we deal with past mistakes, and even violations of trust. We haven’t come to an agreement that there’s been violations of trust. So it’s a very different process. I agree.
And, look, I think there are so many things that are completely unforgivable that this Administration has engaged in. In the book, I talk about Trump’s very first use of the pardon power, to pardon Sheriff [Joe] Arpaio, a completely abusive use, corrupt use, and self-serving, because it’s giving a pardon to someone who was a campaign supporter, and it’s pardoning someone for gross violations of people’s civil rights, and pardoning someone who’s been held in contempt by the judiciary, which really means the President thumbing his nose, or worse, at the judiciary, at an independent branch. So, that’s just one of many, many acts that—again, there’s no repentance, no acknowledgement of wrongdoing. And until that happens, we shouldn’t be talking about forgiving.
We have all these events—the financial crisis, the Iraq War, the Vietnam War—where, essentially, the perpetrators seem to go free or not get the punishment they deserve. And so we never even get to a point where forgiveness would be an option. Whereas, in these other ways, as you’re pointing out, around financial issues, around our incarceration rates, America is an incredibly punitive and unforgiving society.
I think one reason I’m really calling for a jurisprudence or a philosophy of forgiveness is that we need to be able to forgive, but to do it in a fair way, a way that treats people equally. And, right now, some people are able to secure forgiveness and other people aren’t. And it too often falls along the lines of other kinds of disparities, in terms of power, in terms of race, in terms of gender.
And so, while I myself support the cultivation of forgiveness, interpersonally and for society, if it just continues to replicate the divisions that we have, it’s going to fuel new resentments. You know, in many ways, I came to this whole work out of concern about mass violence, genocide, atrocities, and seeing cycles of violence. And the cycles of violence are perpetuated by resentments because of the way the last cycle of violence was resolved. I fear that that’s where we are living right now, and that there are many justified resentments. and maybe some unjustified ones, but, because there’s a perception that some people are treated better than others, we are laying the seeds for further conflict.
Has the #MeToo movement made you think about any of these issues differently, or highlighted anything that you think is worth thinking about?
Yes, absolutely. I think that we are still in an evolutionary stage of this, not fully or completely acknowledging the violations. So, again, it seems a bit early to be talking about forgiveness.You see, in some #MeToo instances, people say, “Well, when are you going to let this man back into society? Why is he being removed from his role as a creative professional in the entertainment business?” Well, if people are held responsible, then we can talk about bringing them back. It hasn’t happened enough. We’re still on the brink of that.
That said, at the same time, it does seem to me that there’s a danger that some versions of the #MeToo movement are leading to some people saying, “Let’s throw out even the requirements of law. Let’s not even find out that someone commits the harm. Let’s not even have due process.” Well, that’s not helpful in any way. And, if there are punishments, they should be proportionate. So, I think that we are going to be struggling with these issues for some time in the context of #MeToo. But I do think that being able to articulate what the wrongs are, and being able to come up with ways that we can move on after there has been acknowledgements of the wrongs—that’s something for people personally, for institutions, and for the society as a whole.