- Welcome to this Brennan
Center Live program.
We are so delighted to have with us today
our special guest, Martha Minow,
who is the author of the
recently published book,
"When Should Law Forgive?"
Before I start on the
book, let me just say
that the Brennan Center
frequently sponsors talks
and discussions like
this on topical issues
that are facing our democracy and present
real questions of debate for our democracy
and sustaining it.
So we are really delighted to be able to
have this conversation
and many of the others.
So if you take a look
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So please feel free to do that.
Not during this program,
but later on in your own spare time.
But our guest today needs no introduction.
She is truly a rockstar in the law.
Martha Minow is the 300th
anniversary university professor
at Harvard Law School--
- I'm not 300 years old.
- She is not 300 years old,
but she is the 300th
anniversary university professor
as well as the former
dean of Harvard Law School
where she has taught since 1981.
She is an expert in human
rights and a fierce advocate
for members of racial
and religious minorities
and for women, children and
people with disabilities.
Tonight, we celebrate the
publication of her new book,
"When Should Law Forgive?"
I had the opportunity to read the book
over the last week and let me just say
it is really a tour de
force that prompts you
to think seriously about
the question of forgiveness,
how forgiveness operates
in our everyday lives
and whether the law should
operationalize forgiveness
and build it in to the
administration of our justice system.
In the book, she explores
the various tools
that law already uses
to promote forgiveness
in everyday life, including
amnesties, pardons,
bankruptcy, and she thinks seriously
about how these initial
efforts might be expanded
so that forgiveness can be a regular part
of law's repertoire.
In the book, she outlines her ideas
for reforming the criminal justice system
and explains how it function in practice,
and she thinks about the
broader philosophical questions:
who has the power to forgive,
who should be forgiven and on what terms?
So with that setup in mind,
we have a rich discussion
ahead of us, so please join
me in welcoming Martha Minow.
(audience applauding)
- Thank you so much.
- So forgiveness has been in the news
for the last week, right.
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 has
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 and 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 10 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, right.
So I think a broad question
I have as I read the book
and I'm thinking about
this, 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?
- So such essential
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 could 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 her?
I mean, the whole thing is
just so hard to understand.
One of the reactions I have
to your comment is, 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.
But it took me about eight
years in working on this book
to realize the book is not about
whether the law should promote
inner personal 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.
You go back to ancient Babylonia,
you look at the Jubilee in the Bible,
you look at actually civilizations
whose names we don't even remember,
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 were in one of those moments
right here, right now.
- So you're not advocating
for interpersonal forgiveness
and law dictating something
like Botham Jean's brother
coming down from the
stand to forgive someone,
but rather the state
facilitating opportunities
for us as a society to engage in
a kind of collective means of forgiveness.
- Exactly, exactly.
Although again, Brandt
Jean's act, I think,
was an act of grace and it
might inspire some people
to think about their own lives,
but the law should not have
anything to do with that.
And the judge, I think it
was a little more problematic
for the judge then.
At least it was after
the sentencing was over
so the formal process was over,
but that's not what the
judge should be doing.
Certainly not handing out a Bible.
- So handing out Bibles, hugging people.
I was reminded with the
judge's actions of a case
that occurred not too
long ago in California,
and that, of course, is
the Brock Turner case
that's on Stanford's campus.
The judge in that case, Aaron Persky,
lost his seat in a recall election.
And again, the idea was that
in sentencing Brock Turner,
he had been too lenient.
There are a number of people who cried out
that maybe the issue was about
disproportionate leniency,
but the issue shouldn't be leniency
in the criminal justice system.
That ought to be something to be promoted.
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?
- Right.
Well, in that particular
case, the judge actually said
this young white man has
such a future ahead of him.
And so the fact that that
sentence was uttered there
and is so often not uttered in context
where the defendants don't look like him,
that's what I think led to the outcry.
And you know, I'm not sure if
I were starting from scratch,
I would support elections
and recalls of judges,
but if you have it, that
seems like a good use of it.
Mercy is a concept that is about who,
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 be,
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.
- 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?
- 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.
But as was true of the judge
in the Brock Turner case
and any prosecutor, 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 so at a minimum, I think we--
- [Melissa] We may have more.
- Oh, oh, it's so horrible to think about.
- [Melissa] You can laugh.
- But I do think that
we would be better off
if we now talked about it and we said,
okay, that's not, that's
an unpardonable pardon.
Here's an instance when that
power to let go of punishment,
it should not be used.
- All right, so, okay, let's
get down to brass tacks.
The three specific examples
that you use in the book
are transitional justice
and 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.
- Expungements, commutations, yes.
- Are these, I assume you
don't think that these
are exhaustive, that
there are other places.
So where else, sorry, and
sort of what does it look like
to have a jurisprudence of forgiveness?
- Well, so just I'll say
something about these chapters
since you were so nice to mention them.
You know, 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.
You know, we use the word
forgiveness to forgive a debt.
It's, 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 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 this stigma
and in states across this
country, they're denied the vote,
they're denied driver's
licenses, they're denied housing,
jobs, licenses for, 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.
And then as I guess I've
already started to hint
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.
You know, we have a recently
elected progressive prosecutor
in Boston who has announced
that she's not gonna use
her power to go after
low level drug offenses.
And it's, she says, it's not a good use
of our limited resources.
She's getting excoriated.
If she didn't announce it,
she could just do it quietly.
There's something wrong with that picture.
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, oh,
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.
And you know, litigation's
still going on on that one.
- Yes. We'll be hearing more about that
as the year progresses.
With that in mind, if 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?
- Well, it is the, 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,
but I actually think it's
even more complex than that.
And it may be, it has something to do
with the Puritan roots of this country.
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, you know, they're super predators,
or words about young people that obscure
that they are human beings too.
And I, 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.
- So is it just simply like
a kind of path dependency,
like once you fall into the
path, it just accelerates
and you become more inclined
to pursue that route?
Because I mean, 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.
Like, sort of literally
function in loco parentis
to reshape these children
and their outcomes.
If that's the original blueprint,
can we expect something more?
I mean, it's just that the individuals
who are wrapped up in it
have changed complexion
but our antipathy for them
hasn't really changed.
- Well, maybe, maybe, maybe you're right.
I mean, the problem is we
can't run an experiment
and see what happens if we start
over and do it differently.
And yes, the legal system
is disciplining difference.
That's a lot of what's going on.
But at least for the first 20, 30 years
of the juvenile courts' history,
not just in Chicago
but around the country,
settlement houses emerged and alternatives
to the formal legal system,
places, afterschools.
These are afterschool programs
and it was a vision that
was quite, quite different.
We could've gone a different road.
- Which brings up what
we use now to make up.
So those sorts of afterschool 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?
- 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 know, 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 interests.
It is way too late for that.
So how do we keep people out of court?
That's definitely, it
requires 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 the 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.
- All right.
So this relates to your
last point about just
our lives being inextricably
bound to each other.
We have, we share a common fate
whether we recognize it or not.
There was this really terrific
op-ed in the New York Times
yesterday about a fight
over a library in Arkansas.
Did anyone read this?
No.
Thank you.
Thank you for reading newspapers.
The New York Times thanks you.
- You had a great op-ed
recently in New York Times.
- I had an okay op-ed.
This is actually a terrific op-ed.
It recounted the story of just
a conflict in a small town
in Arkansas over this
library that was built
during very flush times when
there was lots of extraction
of natural gas in the area and
people were relatively flush.
They built a really sparkling new library.
And now the issue was they
had fallen on hard times,
they could only have one librarian,
but she was doing twice
the work of one librarian
and she wanted to get
paid maybe $10,000 more.
So now she would be making
a salary of $42,000.
And the town absolutely balked.
Right, and they talked about this
in incredibly politically polarized terms
like people needed to
sort of circle the wagons
and deal with their own problems,
this was not a sort of sharing economy,
this was not about
investing in public goods.
Instead, we didn't need
these kinds of services,
libraries and things of that nature.
We needed to sort of focus on basic needs
and everyone had to
take care of themselves.
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?
- 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,
was 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.
To have that restart, to be able to say,
okay, yeah, life is hard
for me but, you know,
I can let that go and we can start over.
The situation of the library is, you know,
a really striking example.
Libraries are really in many communities
the last public space, the
last place that people can go
and just for free and sit.
You know, there are communities
all over this country
where you can't just sit.
In Hawaii, you can't just sit.
You're picked up for sitting.
I talked to the chief justice
of Hawaii about this recently.
I mean, this is a problem that yes,
stems from a kind of
resentment and a privatization
of what had been our shared world.
- A shared world.
So 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, you know,
we've been skating around
the role of the state.
How do we factor in
whether or not the state,
in as much as individuals are,
is an entity that has
transgressed and we must forgive?
I mean, 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 and tolerable 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?
- 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 and
people didn't know in part
because there's no local
news in Ferguson, Missouri,
there's no newspaper, there's no cable TV.
But people didn't know
in part because, in fact,
they took it as just normal
that there are poor people
and they're gonna have to pay
for their own parole officer
and their own probation
and they're gonna 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 100 years ago.
So when the publisher wonderfully
came up with this cover
for my book, the pillars on the cover
were pristine and beautiful.
And I said, we can't have
them be pristine and beautiful
because that implies the law is fine,
and the law itself is broken.
So if you look closely now,
you'll see some crumbly
parts on the pillars.
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.
- So we can't even
start talking about this
until we do that.
So this is a book that we have to put away
until we have a new administration.
Is that the point?
- Well, I was writing this book for awhile
and then there was an election
and 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 part and chapter is.
But I actually do think
that we will not have
a different kind of country
until there's more forgiveness.
- So on, I assume that
like, many of you, like me,
many of you are fans of Harry Potter.
Yes?
- [Audience Members] Yes.
- There are three
unforgivable curses, right.
Avada Kedavra, the Cruciatus
Curse, the Imperius Curse.
If you don't know that,
you cannot call yourself
a Harry Potter fan.
- 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.
- Well, they have a
jurisprudence of forgiveness
in the magical world.
The Muggle world apparently does not.
What sorts of transgressions
are completely unforgivable?
That there's just no coming back from it?
- I do think that actually
Sheriff Arpaio's conduct
is unforgivable and the
fact that he was pardoned
by the president of 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.
- Anything else?
- I have a long list.
I drive in Boston.
I mean, I have a long
list of unforgivable...
- Left hand turns.
All right, I know that
many of you have questions
in the audience and I want to make sure
we have enough time to accommodate
your interests as well.
So if you have questions,
there'll be people floating
around with microphones.
You can queue up at these
two microphone posts.
If you can just come
to the post right here.
- Let me just say one more thing.
You know, in the context of debt,
I think it's not just John
Oliver, it's the Pope, it's Bono.
People finding that you
can buy people's debt
for pennies on the dollar and forgive it.
And when you do, you
transform their lives.
- John Oliver paid like $60,000
for millions of dollars--
- Millions of dollars of
consumer debt and medical debt.
- All right, okay.
We have quite a long
queue already forming.
Please make sure your question is crisp
and truly a question.
So no statements with rising
intonation at the end.
Okay.
(audience laughing)
- [Ric] I'll do my best.
- Okay.
- [Ric] Professor--
- And who are you? Could you say?
- Ric Fouad.
I teach professional
responsibility and I'm an attorney.
So everything that you
said, thank you for coming,
first of all and speaking on this.
So everything that you
said really resonates.
And when I look at the
criminal justice system,
the thing that strikes me is that
we have a conversation that is absurd.
When we have our top jurists talking about
which drugs we're going to use
to kill someone, I am aghast.
And in Europe, that would be recognized
as so utterly savage and barbaric
that it's beneath us to even discuss.
The difference being that the society
looks at it differently.
And so my question is, what
can we do to raise the level
of education and
consciousness in our country
where our better angels
are actually unleashed
and people start to realize
that even a murderer
is a human being and
people can be redeemed?
And the idea that we don't,
we've sort of tossed that out the window
and the Sheriff Arpaio's or
however you pronounce his name,
they are in power because they pander
to a mob that thrives on that,
and we don't have to be that way.
Why is our, why aren't we
educating people better to,
you know, recognize more
of the humanity around us
and build this culture
of restorative justice and redemption?
- Well, 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] Not even Joe Arpaio?
- Well, that wasn't just his worst moment.
- [Melissa] You can only have one.
(laughing)
- I don't know all of his
life, but there is, you know,
decades and decades of this 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.
Do you know that this
is the 50th anniversary
of Sesame Street?
Pretty cool, right.
And Sesame Street, you know,
had the idea that every child,
regardless of where they live,
should be able to, you know,
learn their numbers and
learn their letters early on,
but also learn that, you know,
everyone is their neighbor.
And also over time, learn that you can
control your emotions.
I have proposed, not yet success,
but why don't you write in
and tell them they should
have a Sesame Street about law
and it should be about what it
is to have the mutual respect
that's necessary for a legal system.
So that's my idea.
- Okay, great question.
Next?
- Hi, my name is Clara.
I'm hoping to go to law school
with a focus on restorative justice.
So I grew up with a federal
defense attorney as a father.
He works in the Philadelphia
Capital Habeas Unit
and some of the largest
miscarriages of justice
that I've seen throughout my life,
specifically through the lens of his work,
have ended in Alford pleas.
And I wanted to hear your opinion on those
and the way that they're
used in our system right now.
- So I am not myself a
prosecutor or a defense attorney
and Alford pleas are a technical device
that can actually allow for a lifting
of some kind of consequences.
But I want to pick up on
your use of the phrase
restorative justice because that, to me,
is a much bigger and
more promising avenue.
And do you know that
the District of Columbia
now has decided to send all
of its juvenile justice cases
to restorative justice?
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
moreso than a plea in the middle of
the otherwise existing adversarial system.
- [Unknown] Thank you.
- Hi. My name is Leslie Goldstein.
I'm a retired political scientist.
My question is about some
of the things you said
and how you see them as fitting together.
You started by telling
us that two examples
of forgiveness in the legal system
are amnesty and bankruptcy law.
And you also said that in your
understanding of forgiveness,
or let's say appropriate forgiveness,
the perpetrator of a
wrong needs to recognize
that what he or she
did was wrong and feel,
express sorrow or regret about it
as a preliminary to getting forgiveness.
But I don't see that
happening in bankruptcy
and I don't see it in, for
me the most momentous amnesty
of recent decades was the amnesty
of undocumented immigrants,
I think in the '80s.
And people talk about doing it again
because we have so many millions
who need some settlement
of their legal situation.
But again, I don't think
undocumented immigrants
regret that they came to the United States
or that we should expect
them to express regret.
So how do you see those
things as fitting together?
- Well, thank you for that
very thoughtful question.
You know, I don't think the legal system
should be in the business
of demanding performances
of particular emotions.
So if I said that people are
supposed to express regret,
it's not what I meant.
- [Leslie] Okay.
- What I do believe is that
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 man cases where there can be
defenses or justifications, self defense.
I'm not, I didn't do something wrong,
I was defending myself.
In these instances, actually
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 induce 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 the pieces together
and no, the creditors are
not gonna get paid 100%,
they're not even gonna
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?
- So some acceptance of
negative consequences
like paying a fine if you're--
- [Martha] That's right.
- Undocumented and so on.
- [Martha] Yeah.
- Okay, that helps.
Thanks.
- I actually took Leslie's question
to be getting at something different.
So maybe I'm putting words
in your mouth, Leslie,
but I actually took the question,
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'm--
- 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 that's like, that's not part
of a jurisprudence of forgiveness.
- No.
- So not about any sort
of affirmative obligation.
- 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.
- [Leslie] You've gone beyond
me, so I'm gonna sit down.
- Thanks for the question.
- Hello.
Yes, my name is Christopher Viciolo.
I'm an active member of Black
Lives Matter in New York City.
And I feel that Amber Guyger
should not be forgiven.
She received the very minimum sentence.
If an African American
had shot a police officer,
they would be getting 25
years to life in prison.
Do you feel that Amber
Guyger should've gotten
a much higher sentence to prison?
- So I think you raise a really powerful
and important point.
As I said before, I
don't really understand
even how she didn't understand
it was not her apartment.
I mean, I don't understand
anything going on in this case.
So I'm just not even there yet.
So I guess if there's fact finders
and that's what they concluded,
they had discretion about
the range of the sentence.
We've had an experience in this country
of trying to have flat
mandatory sentences.
It did not work.
And so I think we're
struggling in this country.
What do we do with the fact that now
there's discretion about sentencing?
But those kinds of disparities
that some people get one
sentence and others don't
and it has something to
do with how they look
or what job they have, that's
an indictment of the system.
- [Christopher] Thank you.
- Hi Dean Minow.
My name is Nick Condro.
I'm a 3L at Columbia, actually.
Thank you for having me, everybody.
(audience laughing)
- You'll be ushered out as
soon as this question is over.
(audience laughing)
- That's all right.
I'm also hoping to be a public
defender upon graduation.
And your comments about Joe
Arpaio got me wondering,
in your jurisprudence of forgiveness,
do you have a five,
six-factor balancing test
for what is unforgivable
and more generally,
how do we think about like
the spectrum of forgiveness?
So how did you so clearly
come to categorize him,
which I certainly, I understand
the temptation to do that
or the desire or the feeling of that.
But how can we coherently think
about what is unforgivable
or what deserves more forgiveness?
- Columbia is unforgivable.
(audience laughing)
- Not my view, but...
(audience laughing)
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.
The pardon 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.
Marc Rich pardoned by President Clinton.
Last day of his presidency.
Marc Rich, who had given
money to the Clinton's,
he'd given furniture to the Clintons.
This is corruption.
That should not be used.
And the second is where
the grant or 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.
It 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.
You know, 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 a list of ones
that are 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 don't really know how to do.
- I'm sorry.
(audience laughing)
Starting.
(audience laughing)
Thank you.
- [Woman] Melissa, we
have another question.
- We have another question.
Oh, Rebecca.
- So forgiveness is on my mind both here
and I guess personally.
The Jewish observance of Yom
Kippur begins tomorrow night.
- [Martha] I'm Jewish, I've
been thinking about it.
- I've been thinking about
like the opening service
in which we ask to be forgiven for vows,
not that we broke in the past year,
but ones that we are going
to break in the year ahead
and that we ask to be forgiven
and to be able to participate
in a community, effectively of sinners,
of people who will break
promises and break vows.
And so without making like
a sort of fast analog,
I wonder if like, to what
extent we can foster a culture
of forgiveness or even a
jurisprudence of forgiveness
within the American legal
system by thinking of ourselves
or like, as you know,
transgressing or committing crimes
as not something that is extraordinary
but something that we're
like, we will each do,
and that is sort of the norm
and how we create
community because of that.
- Well, I think that's quite beautiful
and I will think about that
when I'm sitting at services
and fasting on Wednesday.
I do think that 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.
But you know that studies of large apes
show that actually large
apes, after they fight,
they engage in rituals of
kind of reconciliation.
I mean, there seems to be
something that we need to do
to recognize that we
are, we make mistakes,
we get into messes.
And I think we need to cultivate that
rather than to sit
behind our own, you know,
in our separate chairs and say,
well, what you did was wrong.
And I do think having community helps.
And I think actually
being part of a community
that sees we have all made mistakes,
we can do something better.
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.
And you know, I've gotten criticized
because I call people
out for microaggressions.
I've also gotten criticized
for not doing enough.
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.
- So, there's another question over here.
- [Unknown] Nope.
- No?
- [Unknown] Yeah.
- Yes?
- Hi. Hello.
I'm Tori, I'm a freshman at NYU.
I have an interest in educational reform
and specifically in
racial justice as well.
So my question is, so how do we,
I wrote it down just in case I forgot.
How do we create just punishments without
continually feeding into
the criminal justice system?
Like, how do we find that
balance between punishing people
for the wrongdoing without, you know,
perpetuating the system
that has, you know,
oppressed so many people?
- Are you thinking
particularly about punishment
in the school context?
- No, no. Just--
- No, generally?
- Criminal justice, whatever.
- [Martha] Generally, generally.
- Generally, yeah.
- You know, one of the
most self-defeating aspects
of the legal system that
I've seen is the communities
that actually incarcerate people
who haven't paid child support.
What could be more self-defeating?
If people haven't paid child support,
often because they don't have the money.
So now you're not going to prevent
their ability to raise the money.
I mean, but that's just
a window onto, I think,
many self-defeating aspects of
the criminal justice system.
One way to maybe make
a turn is to, you know,
come up with a plan.
How is somebody going to
actually pay their debt
and acknowledge they did something wrong,
and yes, have some curb
on their liberty, maybe.
I don't know, but it would be
just a different conversation
than the conversation we have right now.
I do think that's the kind of conversation
that restorative justice invites.
And I'm very encouraged to
see parts of the country
where there are experiments,
and in some parts of the country
it's organized by prosecutors
to have restorative justice.
I mean, people in Texas from
across the political spectrum
are collaborating in
criminal justice reform
because it is broken.
It is not working.
And whether they're coming to
it as evangelical Christians
or as fiscal conservatives,
it's not working.
And I think that therefore,
there's an openness
for some of these alternatives
that I haven't seen in decades.
- And having them be community generated,
that's a big part of the
restorative justice circle.
- [Tori] Thank you.
- One last question?
- Yes. I was just wondering,
I'm a family defense attorney
and I was wondering your
thoughts on forgiveness
in the child welfare system.
It seems like in my experience,
it's in very short supply.
I think sort of in the, under the guise
that because children are involved,
we don't have the ability
to forgive or, you know,
their best interests are at heart.
And I was just curious to
know what your thoughts were
about how to bring forgiveness
into the child welfare system
or mercy in the child welfare system
or just and in how it exists right now.
- Oh boy, you and I need
a longer conversation.
You know, it so much depends.
If there's a child who's been brutalized,
a child who's been battered, safety first.
I just, for me, that's
where you got to go.
If it means actually
supervised visitation,
we can explore that,
but if that's something
that's good for the adult
but not for the kid,
I'm not for it.
So, but having said that, look,
we have punitive elements
of the child welfare system
really in the neglect context
that are just beyond imagination.
Blaming somebody because, you know,
they weren't in the house
when they had to go out
and do something and left the kid alone.
So there are lots and
lots of areas where yes,
we could use an overhaul of
the criminal justice system.
But, you know, I guess
I think about the issue
of violence in the home,
whether it's children
or it's even adults on adults,
as a context where safety first
has to be the way that we proceed.
Because again, if you're
dealing with, you know,
a spouse who's been battered,
very often the tendency is to forgive.
You know, she'll forgive him
and then there'll be
another round of battery
and until there's a restart
of a different nature,
I guess I don't think that's
a moment for forgiveness.
- Final question.
And this builds on
something that Rebecca said.
One of, 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 proliferating?
- It's an interesting question.
You'd think it'd be, it is,
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, you know, of music--
- And Potter.
- Harry Potter, movies,
great works of literature.
It is actually all over
our cultural materials
and honoring--
- [Melissa] Not necessarily--
- 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 summing 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.
- Right. So onward toward
a more forgiving culture.
Thank you so much for coming
out to hear this talk tonight.
Thank you to Martha Minow
for sharing this great work.
- Thank you.
(audience applauding)
Thank you for being here.
