Forgive, but Don’t Forget
…and don’t always forgive
The first person President Donald Trump pardoned, in August 2017, was Sheriff Joe Arpaio. He was infamous for being brutal to undocumented immigrants and others in his shameful jails, and cheered on by neo-Nazis. The month before, a federal judge had found Arpaio guilty of criminal contempt, which carried a jail sentence of up to six months, for “flagrant disregard” of a court order. He had refused to stop harassing and arresting Latinos without any basis for suspicion that they had committed a crime. In the 2016 elections, Arpaio lost his race for a seventh term in Maricopa County, Arizona, apparently because the county no longer wanted a sheriff who engaged in what the Justice Department called “unconstitutional policing.” But in the presidential election, Arpaio helped push the county and the state for Trump, who advanced his own anti-immigrant crusade by saying Arpaio was in legal trouble for doing his job—rounding up people who were in America illegally.
In When Should Law Forgive?, 300th Anniversary University Professor and former Harvard Law School dean Martha Minow reckons with a list of ways the pardon was wrong: it rewarded a crucial campaign supporter; it signaled to current and former Trump aides that they should refuse to testify against the president—and, if they were convicted, the president would pardon them, too; it went to a man known for his racist ranting and haughty defiance of law; and it reveled in that defiance. As a result, Minow emphasized, that pardon was and “is a direct invitation for disobedience.” Appalling as Arpaio’s contempt was, Trump’s was even worse as an abuse of constitutional authority: “to pardon a law enforcement official who so thoroughly disdained the law is to excuse or honor that attitude of disrespect for law and for the courts.”
Minow’s book is full of similarly sharp answers to the hard question of its title. It is a compact yet panoramic addition to the literature about restorative, sometimes called reparative, justice—an old practice recently revived by a growing movement in American criminal justice. In matters involving young people, wrongful conviction, and other circumstances where fresh starts are possible for criminal offenders or defendants, victims and/or their families, and others in affected groups, this approach to justice focuses on repairing harm, not on meting out punishment. It brings these people together to work out a shared understanding of what happened and its consequences. The approach is restorative in being able to help everyone let go of grievances, overcome resentment, and resolve conflict, and to give victims the chance to ask for an apology or compensation. Minow ends her book with a piece of contemporary folk wisdom: “Forgiveness does not change the past, but it does enlarge the future.”
The account of Trump’s pardon of Arpaio shows what is different and notable about When Should Law Forgive? There are “acceptable and unacceptable grounds and circumstances” for granting presidential pardons and for other kinds of forgiveness, Minow writes, and she identifies and elaborates on both. What Trump did is not the only corrupt exception to a fresh, uplifting norm. The book is fundamentally a brief for forgiveness, but it presents tempering counter-examples that explain why forgiveness is sometimes an indefensible assertion of power, not an act of benevolence: some wrongs are unforgivable.
In three substantive chapters—“Forgiving Youth,” Forgiving Debt,” and “Amnesties and Pardons”—Minow explores a humane vision of justice and law, without saying exactly how to fulfill it systematically. The book reflects what I have described previously for this magazine (see harvardmag.com/minow-17): her disposition as a reformer, not a rabble-rouser; her encouragement of skepticism about law, including new fashions in reforming it; and her passion for exposing inequities embedded in it. In When Should Law Forgive? she addresses “why a fresh start is permitted in some cases but not others, and when and how forgiveness can be compatible with law’s demands of predictability and equal treatment.”
During the civil war in Sierra Leone, in West Africa, from 1991 to 2002, more than 50,000 people were killed; according to the United Nations, the combatants included about 10,000 child soldiers. Minow focuses on one she calls Emmanuel: abducted at seven years old and, for four years, used by his captors for the mundane (chores) and the savage (spying, fighting, and killing). Adults involved in such bloody conflicts turn children into soldiers “because they are more easily conditioned into fearless killing and unthinking obedience.” As many as 40 percent of child soldiers in some conflicts are girls, many forced to become sex slaves and prostitutes as well as killers. After the war, Emmanuel’s mother and grandmother forgave him. His uncle did not. Others in his community beat him. Minow: “He dropped out of school, became involved in theft, and fell into a cycle of social rejection.”
Child soldiers are victims, but also perpetrators. Some abduct other children. Some join a side without being abducted, “drawn by the ideology, or by chances for action and responsibility, or even by the thrill of the violence or being part of a political effort that could offer better opportunities.” Yet those who make that choice don’t have the same level of accountability and blame as competent adults, because “growth toward adult maturity takes time” and “adolescents under the best of circumstances can both think like adults and be gripped by impulses and fears.” Minow continues, “There are problems with viewing former child soldiers or child sexual slaves” as suitable recipients of forgiveness, because “forgiveness by definition first needs acknowledgment of wrongdoing” and child soldiers may lack “the degree of psychological and moral responsibility to be treated as wrongdoers.”
As victims and perpetrators, Minow writes, child soldiers make conventional legal mechanisms for dealing with them “overly simplistic blanket assertions of innocence or overly stringent assignments of blame.” She regards restorative justice as a valuable alternative for them, “some kind of public process to acknowledge their participation in violence and lawlessness” and “help individuals forgive themselves and construct new and productive chapters in their lives.” Through this nuanced case study of children caught up in distant wars of other nations, Minow makes it easier to see the similar dual nature of “American youth involved in gangs, drug trafficking, and other criminal activity,” who can’t evade legal responsibility as child soldiers often do.
In both instances, she observes, “legal forgiveness should be less concerned with particular victims than with remaking the rules and institutions that constrain the choices and opportunities of young people.” Child soldiers and gang members “may not be entirely innocent, but neither are they responsible for the social conditions in which they make their choices.” Minow expands this point in her chapter about forgiving debt—of individuals with consumer and other debt or student loans, and of nations and cities in debt, too. Forgiving gang members who ravage a convenience store may seem morally different from forgiving the hospital debt of a family buried financially by the cost of a breadwinner’s catastrophic illness, but the “spirit of second chances embedded in bankruptcy shows a long-standing legal and cultural embrace of forgiveness.” She writes, “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 premise of Minow’s book is that while bad things happen when people flout the law, they can also happen when the government strictly enforces it. The most regular result of American criminal justice is punishment, whose main product is more crime. Recidivism—a relapse into criminal behavior—is a national disgrace. The Justice Department’s Bureau of Justice Statistics found that of 401,288 inmates released from state prisons in 2005, 68 percent were arrested within three years and 83 percent within nine years—with almost two million arrests among the inmates released, an average of five arrests per inmate. Retributive justice, the retaliatory, dominant form in the American legal system, as Rachel Elise Barkow, J.D. ’96, explains in her new book Prisoners of Politics (Harvard University Press), is a dual failure in not improving public safety and in not preparing prisoners for sustainable re-entry into the world outside. Or as Minow puts it, “Fully enforced criminal laws produce much punishment but not necessarily better people or a better society.”
The promise that the restorative-justice movement has been realizing is helping perpetrators, victims, and others shaken by wrongdoing find their way to a better future. It has been helping “law grow toward justice,” in Minow’s words. But her book teaches that forgiveness will contribute its full potential—without overstepping its bounds—only if justice grapples with the requirements of law.
One effort she proposes is developing a jurisprudence of pardons, including “a needed check against abuses and unequal treatment.” The worst abuse would be for a president to pardon himself (which Donald Trump, in June 2018, tweeted that he has the power to do).
The Constitution explicitly limits the president’s pardon power “in Cases of Impeachment,” which arguably bars a self-pardon. But the prospect of a disgraced president forgiving himself, Minow warns, underscores the need for defining the limits of forgiveness in this now-prominent field. Otherwise, self-forgiveness would be the ultimate denial of wrongdoing. It would ridicule the idea of law providing meaningful forgiveness.