America on the Brink   /   Fall 2020   /    Book Reviews

To Forgive Us Our Trespasses…

What is the role of forgiveness in the law?

Nancy Isenberg

Nadine Collier (in green dress), the daughter of Ethel Lance, one of nine victims in the 2015 shooting at Emanuel A.M.E. Church, Charleston, South Carolina, forgave the perpetrator Dylann Roof; photograph by David Goldman AP.

Harvard law professor Martha Minow would have found a kindred soul in John R. Lewis, the Georgia congressman who died this past July. One story in particular captures his generous spirit. In 1961, Elwin Wilson was the leader of a gang of young white men who beat up Lewis for entering the whites-only waiting area in a South Carolina Greyhound bus station. A practitioner of nonviolence, Lewis did not fight back. He never pressed charges. Forty-eight years later, Wilson arranged to meet the congressman, and Lewis forgave him. The civil rights champion recalled, “He started crying, his son started crying, and I started crying.” The two men appeared on the Oprah Winfrey Show. Wilson explained himself in a way that challenged the political logic of those conservatives who refuse to admit wrongdoing: “Well, my daddy always told me that a fool never changes his mind and a smart man changes his mind. And that’s what I’ve done and I’m not ashamed.”

Although this story does not appear in Minow’s book, it would fit nicely. She defines forgiveness as “a conscious, deliberate decision to forgo rightful grounds of grievance against those who have committed a wrong or harm.” The challenge involves separating and then expelling the demons of resentment and the desire for revenge, while maintaining a “recognition of the wrong.” Wary of going too far afield of legal traditions, Minow focuses on the well-established jurisprudence of bankruptcy, pardons, and amnesties, taking up international law only when discussing the “odious debt” of nations or the plight of child soldiers in war-torn African countries.

Religion can be a minefield, and Minow avoids endorsing any one creed. (Most of the religious discussion appears in the endnotes.) The one symbol she does find useful, however, is the biblical practice of jubilee: Every fifty years, rulers forgave all debts and freed debt slaves. Although the year of jubilee was about atonement and mercy, the word atonement never appears in When Should the Law Forgive? (Mercy comes up only eight times.) The only cleric to get sustained attention is Archbishop Desmond Tutu, whose central role in South Africa’s Truth and Reconciliation Commission makes him hard to ignore. Minow tries to carve out a neutral position, seeing a place for a view of forgiveness that respects the barrier between church and state. The words of retired Supreme Court justice Anthony Kennedy capture this balance in his observation that “a people confident in its laws and institutions should not be ashamed of mercy.”

Forgiveness played a part in the drafting of the U.S. Constitution, since the main reason for calling the 1787 Constitutional Convention was the looming danger of Shays’s Rebellion, a debtors’ uprising in Massachusetts. Many of the participants in the uprising were arrested, convicted, and ultimately pardoned by the state’s new governor—none other than the president of the Second Continental Congress, John Hancock. For a few of the Shaysites, forgiveness was granted as they stood at the gallows with the noose around their necks. A moratorium was placed on the debts. The men went from veterans to traitors, then back to full citizens; several ran for political office and won. President Washington’s pardon in 1795 of the participants in the Whiskey Rebellion and President John Adams’s pardon five years later of the men who took part in Fries’s Rebellion likewise treated forgiveness as an “act of grace.”

In pardoning the Whiskey rebels, Washington acknowledged the need for “moderation and tenderness.” Forgiveness and mercy were not alien concepts, but part and parcel of mending the social fabric in the face of genuine grievances. Heavy (or unfairly applied) taxes and debt went hand in hand in the early days of the United States. So did the belief that mercy should take account of the social background of the rebels, their suffering, their likely lack of legal recourse, and their degree of contrition. The American tradition of pardons is rooted in debt relief. Professor Minow largely ignores this extended prequel, without which the modern experience makes less sense.

The Constitution recognized bankruptcy law, and many early nationalists, including Revolutionary War financier Robert Morris, ended up in debtor’s prison. Thomas Jefferson and Alexander Hamilton died deeply in debt. Among ordinary Americans, the modern option of filing for Chapter Seven bankruptcy is most likely to be used by women, age forty-five or older, who earn under $30,000 and live in a southern state. As the 2008 subprime mortgage crisis showed, corporations and their management are a different matter. The men at the top got off scot-free, because the banks, “too big to fail,” were treated as a national resource that needed government protection. Donald Trump’s businesses have declared bankruptcy six times, while a typical, unprotected middle-class family loses its entire savings if hit with one medical crisis. A 2015 Pew Charitable Trust Research Report found that eight of ten Americans struggle with a never-ending cycle of debt, which means the problem is systemic.

Minow’s discussion of debt reform is disheartening, to say the least. The sources of today’s crushing personal deb are, of course, unemployment and medical expenses, along with credit card debt, the costs related to divorce, and mortgages. Student loans were a key issue in the Bernie Sanders and Elizabeth Warren 2020 presidential campaigns—these do not escape Minow’s analysis. She makes an eloquent case for the poor who are threatened with jail time for their inability to pay what she describes as “byzantine layers of charges.” In the state of Washington, she notes, a “defendant with a single conviction is subject to twenty-four fines and fees.” During the presidency of Ronald Reagan, states reinvigorated the strategy of scapegoating criminals, passing laws denying felons the right to vote, followed by the elimination of parole and implementation of punitive fees, so as to punish them twice over—politicians knew the public had little sympathy for them.

If debt is, as Minow writes, a “moral hazard,” it is also part of a larger structural pattern of class inequality. Life is an obstacle course for most, but in what resembles a rigged game of Monopoly, some citizens already hold property, hotels, and a “get out jail free” card before they even roll the dice. Children of the wealthy don’t need to take out college loans. Instead of relying on higher property taxes to fund operations, states use regressive sales taxes and unfair court and prison fees. Predatory lenders (like all practitioners of predatory capitalism) target vulnerable populations: the desperate, the unemployed, the elderly. Corporations hire teams of lawyers that individuals can’t afford. Senator Warren’s student loan bill is a good corrective step, as Minow notes: Individuals are granted the same privileged rates offered to banks to refinance loans. Nonprofit groups have provided some relief by purchasing debts, then forgiving them. Yet private charities are not enough.

Recessions, depressions, and the expanding class divide create debt and dislocation. That’s bad enough. Wars draw attention to a host of military and legal subjects: refugees, POWs, war criminals, and child soldiers. Minow states that in 2012 the nongovernmental organization Human Rights Watch identified fourteen countries that were using child soldiers (boys as combatants and girls as sex slaves). The list included Sierra Leone, Uganda, Chad, Sudan, Liberia, and the Democratic Republic of Congo. Outside of Africa, child soldiers also have been used in Colómbia, Burma, Nepal, and Sri Lanka. This is nothing new: 100,000 boys under the age of fifteen (and 250,000 to 420,000 under 17) were recruited during the American Civil War. Today, the United States remains one of the few nations that permit the recruitment and enlistment of seventeen-year-olds.

Minors invoke feelings of sympathy and innocence, but their transgressive acts of murder and other forms of brutality cause them to be reviled in the societies they tear apart. The child soldier debate has revived the discredited concept of brainwashing, previously used to explain the confessions of American POWs during the Korean War. Child soldiers are more than coerced captives, Minow observes, in that their captors act as surrogate families. She suggests that cleansing rituals may work better than legally enforced public confessions exacted by truth commissions. The Acholi people of northern Uganda allow an individual to shed his or her past and adopt a new identity; contrition is part of the ritual.

As a society, we have tragically given up on reforming criminals. Prison populations are growing because incarceration has become a profitable business. If Minow’s prognostication reflects an emerging consciousness, forgiveness may shift public opinion back to reform by reviving older rituals of atonement and contrition. The criminal should not be reduced to the crime he or she committed, as social justice lawyer Bryan Stevenson explained in a 1994 interview; such labels make it easy to condone harsh punishments, and even death sentences. Forgiveness is never easy. But forgiveness, more widely applied, might just dim the scarlet letter that wrongdoers are obliged to wear, and restore some part of a lost humanity.