Criminal - Learning How to Forgive

Episode Date: May 1, 2020

“I’ve been teaching law for almost 40 years. And I recently realized we don’t really teach people in law school about the tools of forgiveness that are built into the legal system.” Today, we���re talking with Harvard law professors Dehlia Umunna and Martha Minow about when and how the law should forgive. Martha Minow’s latest book is When Should Law Forgive. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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That's BotoxCosmetic.com. That's BotoxCosmetic.com. I don't subscribe to the idea that people are bad. And I don't subscribe to that because I believe that there's inherent good in everyone. I think that crime, it's all, to be honest with you, very relative. What might be criminal in some communities are excused in other communities. Delia Umunna was born in London and raised in Nigeria. Her mother is Nigerian and her father is from Sierra Leone. She went to college and law school in the United States, and then she became a public defender in Washington, D.C.

The main motivation for me is that throughout my time as a public defender, and as a Christian, I operate from the prism that if Jesus were on earth today, he'd be a public defender. He was always defending people who were accused of various nefarious activities, tax collectors and prostitutes and people that we will consider unsavory. But as a public defender, I got to learn and appreciate that each person has a story and that my role as an advocate was to tell that story in a way that was true to their lived experiences, to give voice to them. I learned to appreciate the fact that, but for the grace of God, right? And that human beings have the capacity for change. Today, we're talking about forgiveness. I'm Phoebe Judge. This is Criminal.

I'd like to ask you about where you grew up in Nigeria and how growing up you saw forgiveness and justice, criminality differently than we do here. Right. So we're a very communal society. And so compared to the US, where it seems that we exist in silos and a very much individual pull yourself up by your bootstraps sort of mentality. In Nigeria, it's sort of this mentality that if one person is going astray, we all collectively are going astray. And so the idea is, you know, we rally, people rally around you to make sure that you don't go astray. And that if you do, that there are resources, particularly human resources, to help you sort of recalibrate

your life's trajectory. And that's really critically important. I guess it's kind of a flip the whole idea on the head, which is in other communities, when someone does something bad, it looks bad upon the community. We failed as opposed to here where if someone does something bad, well, this person must be intrinsically bad or evil and let's remove them from the society. Oh, yes. Oh, absolutely. You are absolutely correct. Here it's you did something, something that you did. And in other communities, it's like, well, how did we fail? How could we have prevented this? And now that you have indeed done something,

what can we do to restore your humanity? What can we do to make sure that you become one of us? And the question becomes, when is enough, you know, enough? When is punishment enough? When can we say you have paid your dues? It's time to welcome you back into society because we still think you've got value. We still think there's much more that you can add to being a productive member of our community. In 2011, a 25-year-old woman named LaShonda Armstrong drove her car into New York's Hudson River with her three children inside.

Later, LaShonda Armstrong's neighbors came forward and said they knew she was in trouble. They often heard yelling. Her landlord later said that she asked him twice in six months to change the locks on her doors. Delia Umuna wrote about LaShonda Armstrong and other women who'd committed similar crimes. She asks, how is it that American society bears no social responsibility to support its most vulnerable members in raising their children. She proposes that we watch out for each other, not just watch each other, but really look out and offer help, as she says communities in Nigeria often do.

She writes, It's imperative that the legal system take steps to foster a sense of communal obligation towards the most vulnerable members of our society, single mothers and their children. In 2015, Delia Amuna was made clinical professor of law at Harvard, the law school's first Nigerian professor. She's also the deputy director of Harvard's Criminal Justice Institute, where third-year law students, under supervision, essentially work as public defenders.

We asked her to tell us about the cases that stay with her the most, and she says it's the ones where children are charged with crimes. She told us about representing a nine-year-old girl. And she was charged with assault with a dangerous weapon. And she was charged because while throwing a tantrum in a classroom, she picked up a book, a textbook, and threw it at a teacher, missed the teacher. The book hit the wall. The child was promptly taken to the principal's office. And when she got there,

she was then arrested, put in handcuffs. She was transported at the back of a police car and brought to the courthouse. She had to be placed in isolation, so in solitary, because she was nine years old. And I went in to speak with her. So she's this tiny little person, and I was trying to explain to her what my role was as her attorney and advocate, and she had no idea, just even processing what that meant. And she looked up at me and she said, where's my grandmother and when can she take me back to school?

And then she said to me, do you have any food? I'm hungry. And so there I was trying to figure out, you know, how to advocate for this child in light of the very serious thing that she'd been charged with. I mean, assault with a dangerous weapon book. But clearly this child had other issues that were contributing to her behavior in class that day. And it really will have been a very cruel and capricious thing for the legal system to continue its prosecution of her. It's easy to forgive a child and to consider all the social factors in play in their behavior. It's not always so easy to forgive an adult.

Well, that's correct. You know, it's easy when you paint a picture of a very vulnerable child. But what about those evil adults and evil men and women who do such terrible things. Well, the truth is an evil adult or a terrible adult just didn't, you know, pop up from, just didn't become that way. They've had most likely a terrible childhood, a childhood where they were likely abused or likely neglected. And so you have children who, once that's happened to them, will indeed grow up to be adults who then commit crimes. I don't ever believe that an adult just takes actions without something being the catalyst for whatever it is that they've done. And so it might be easier to forgive a child, but if you delve deeper into the experiences, the lived experience of an adult, I think it

makes it easier to forgive them once you understand what it is that they've been through, the prism through which they view life, and sort of what's happened to them. This is the idea that some defendants need help, not punishment. Oh, absolutely. I can't think of anyone that I have represented who says, you know what, I will wake up today and I will make this probably the worst day of my life. I'm just going to go out there and do something to get myself arrested and get myself in the criminal justice system. A lot of our clients, the behavior is really more that if

they are hungry, they might steal. If they have no place to stay, especially when it's cold, they may trespass, and that's a crime. If they have mental health issues that have not been diagnosed, they may act in ways that might be considered criminal. And yet, when you really put it all in context, it's simply just a cry for help, quite frankly. And our default position shouldn't be one that's hypercarceral. And we tend to be that way.

Our default position should be, what can we do to help? Will you say what you mean by hypercarceral? So hypercarceral is this notion that we incarcerate people in numbers that really are just unbelievable. So America, the United States of America, makes up 5% of the world's population, and yet we incarcerate 25% of the world's population, and yet we incarcerate 25% of the world's population. At any given time, we have over—we spend about $80 billion on our criminal justice system annually. We have millions of people who on any given day are under the jurisdiction of the jails and prisons. In America, you're more likely, particularly if you're a person of color,

more likely to go to jail than you are to graduate, than you are to get married, than you are to engage in any of the other, you know, sort of experiences that you will have in life. And so compared to other developed nations, we incarcerate people at a far greater rate and on crimes, quite frankly, that don't require us to incarcerate people at that level. So if you, a lot of these crimes are drug-related, non-violent crimes, property crimes, and you have us incarcerating people. Our default position is to be as punitive

as possible. And it's really sad compared to other developed countries. Are there some instances where forgiveness in a legal sense should not be an option? I can't think of one. And I have pondered the question about, you know, and the pushback will be, well, what if you have somebody who's, for example, raped and murdered a child? And, you know, that's awful and that's egregious. And when I think of forgiveness, I don't think of forgiveness as a complete bar to punishment. Punishment can be part of forgiveness. And so even with the most egregious situation,

where the person has committed the most heinous of crimes, I will say go ahead and have them have their just punishment because that is part of this forgiveness arc. It might be that punishment for a person like that is life in prison, or it might be that it's a term of imprisonment. But once they've paid their due, forgiveness, I think, mandates that we then figure out ways to restore them. So I can't think of an instant where someone is beyond redemption, because everybody does have a potential for reform. Do you consider yourself a forgiving person? Oh my goodness. I would love to think so.

I try. I've mentioned this several times about my faith and what it instructs me to do. And, you know, the Bible talks about forgiving many times. And there's a verse in the Bible where this gentleman is asking Jesus, how many times should we forgive? And Jesus says, you know, 70 times 7. And so the idea of forgiveness is one that I try to live out daily. Do I fail sometimes? Of course. But it's something that I am intuitively aware of

that should be a part of the way I live my life and conduct my affairs and and and because of that I'm then able to ask others to forgive the people that I represent yeah so to answer that question I I think of myself as. I have not always been very good at it, but I try. At Harvard, Delia Umuna met Martha Minow. Martha Minow has been teaching at Harvard Law School since 1981. Before that, she served as a law clerk at the U.S. Court of Appeals for the D.C. Circuit, and then at the Supreme CourtS. Court of Appeals for the D.C. Circuit,

and then at the Supreme Court for Justice Thurgood Marshall. She says she went to law school to get a seat at the table. She was the dean of Harvard Law School, and now she's the 300th anniversary university professor, the highest honor a Harvard faculty member can receive. She's written many books. In her latest, called When Should Law Forgive, she's asking, quote, Why is it so hard to forgive?

Oh, boy. That's a big question. I think that there are good reasons even hard to forgive. Oh, boy. That's a big question. I think that there are good reasons even not to forgive. I think it's hard to forgive because when you have been wronged, when you have been harmed, when you have been demeaned, when you've been violated, actually your very sense of worth is at stake, your sense of well-being, your sense of equality and dignity. And I think that we are rightly outraged. And again, I think there's a kernel of our sense of justice and injustice in that very response. I also think for many of us, and I include myself in this, it's very hard to forgive if the other person has not made amends, has not taken responsibility, has not said, I did wrong and I'm going to be different. Some religious traditions say, nonetheless,

individuals should try to forgive. Others actually say, no, forgiveness is an exchange in response to the actions by others. There's a quote in your book that says, forgiveness is that act of admitting that we're like other people. What does that mean? I don't think it's by accident that every religion, every civilization, every philosophy has found a way to support and encourage forgiveness between human beings, and often at a societal level. I think that the reason that there is such widespread recognition of the value of forgiveness, by which I think we can mean

letting go of justified grievances, there's such a value given to it because interpersonally it allows people to move on, even though we have all participated in one way or another in problems, in violations of trust, even in violence, certainly misbehavior. And at the same time, to build the strength to get along with each other, because we're all imperfect in one way or another. I think that, you know, civilizations advance when what was once viewed as a misfortune is understood as an injustice. So don't get me wrong. I do think justice matters and being very clear about when there are violations of laws and rules is very clear. But punishment isn't always the best response. And letting go of justified resentment. That's what forgiveness is.

And I do think that it is a recognition that every society, every community, indeed every person, is imperfect. Thank you. a seven-part series that follows journalist Tristan Redman as he tries to get to the bottom of a ghostly presence in his childhood home. His investigation takes him on a journey involving homicide detectives, ghost hunters, and even psychic mediums, and leads him to a dark secret about his own family. Check out Ghost Story, a series essential pick, completely ad-free on Apple Podcasts.

Hey, it's Scott Galloway, and on our podcast Pivot, essential pick, completely ad-free on Apple Podcasts. out, we are joined by Kylie Robeson, the senior AI reporter for The Verge, to give you a primer on how to integrate AI into your life. So tune into AI Basics, How and When to Use AI, a special series from Pivot sponsored by AWS, wherever you get your podcasts. When the South African government implemented apartheid in 1948, segregating white South Africans and non-white South Africans, the result was incredible violence and brutality. It took more than 40 years for the apartheid system to be dismantled, and then South Africans had to figure out how to move forward. Starting in 1996, victims were invited to give statements about their experiences of human rights violations, and perpetrators were asked to speak about what they had done. Many of these hearings were public and broadcast live on television.

The entire country was watching. The Truth and Reconciliation Commission offered amnesty to some perpetrators willing to tell the whole truth about their crimes. Martha Minow says this interested her very much because it was an institutional response that wasn't a criminal trial. in particular seemed to me to strike a very unusual and important balance between holding people to account, but also trying to build a constructive future and creating a setting where individuals could forgive, weren't forced to forgive, but where society as a whole could come up with a way to move on and not focus on punishing people. After all, people in South Africa had been through so much for decades,

and there were wrongs on all sides. There were wrongs committed by the apartheid government, for sure, but there were also killings committed by the African National Congress and others in the struggle. So finding a way to let go and move on was very important at that time. Tell me about the story of the Google 827 in South Africa. Totally fascinating story. So alongside the Truth and Reconciliation Commission were many informal interactions. Individuals who had committed violations of law and crimes against humanity, could seek amnesty if they had warned them, he had told them that there was a bus coming that had some individuals on it, and he said they were activists and they were terrorists

and they were dangerous. They were activists. There's no evidence they were terrorists. They were all young men. And the apartheid government arranged for that bus to be blown up, and they were all killed. Well, the Truth and Reconciliation Commission process is going forward, and this individual comes forward seeking amnesty. And one of the psychologists who was working for the commissioners, Pumla Gaboto Madika Zillow, she organized a meeting for the mothers of the victims to meet with this young man who really was a traitor. And the mothers in advance all said they could never forgive him. What he had done took their children away, and they were also furious that he was himself a black South African and was turning on their brethren, and most of all that they'd lost

their children. And they met with him, and he apologized, and he actually prostrated himself, and he showed great respect for these women. And it's captured in film, actually, an amazing documentary called Long Day's Journey Into Night. And you can see the women one by one forgive him. It's just an extraordinary moment. And I think the fact that he took responsibility, he apologized, he showed great respect, he participated in the process set up by the country through the Truth and Reconciliation Commission. That all played a role, but I think a huge role was played by just the personal strength and religious beliefs by those women who felt this was the right thing to do.

They wanted to allow this man to reclaim a place in society. Do we sometimes expect women to forgive more easily than men or black people over white people? Yes, and I think this is a serious concern than not just about the inequality and who gets forgiveness, but also the inequality and who is expected to forgive. And it's hard not to speculate that forgiveness, while a powerful tool for one who's been victimized to reclaim dignity, to reclaim a position of the power to forgive or not forgive, it's hard not to see that often it's people in relatively less power who've developed the capacity to forgive and who may be expected to forgive. You know, when I went to South Africa to study the Truth and Reconciliation Commission, I was so interested to hear people say that they were willing to forgive the individuals responsible

for killing or torturing their loved ones until the individual walked forward with their hand outstretched expecting forgiveness. And to fail to recognize that forgiveness is something to be voluntarily bestowed by those who've been victimized as opposed to something that's a right of the one who has committed a wrong. It's not. So I think that that's an important reminder about forgiveness has to be a choice. It seems to me that forgiveness is one of the few things on earth that a human can't actually be forced into in a genuine way? If it's forced, it's not forgiveness. To forgive is to have actually the power not to forgive. And it's not forgiveness if there is no such power to decline to forgive. So I think that's absolutely right. And at the same time, of course, it is really

quite an extraordinary power. You know if you've ever been forgiven what a difference it makes in your life. And you know if you've forgiven someone else that you feel lifted up. You feel that you are relieved of a big burden. So it's an extraordinary act between individuals. It's more complicated when it's done at a social level. Who has the right to forgive on behalf of anyone else? You know, when you had, you know, President Bill Clinton apologized for the Tuskegee experiments on black Americans who weren't told that they

were being made part of medical experiments. Some of them actually became ill and died. And he apologized, and that's a good thing that he did. But, you know, who's he to apologize on behalf of people who acted long ago? These are tough questions about who can stand in the shoes of anyone else an eye, let's say, or harsh punishments than they are for stories of pardons or commutations? I mean, we seem, as you say, to be more interested in the pardoning of the Thanksgiving turkey than we are someone who has been wrongly imprisoned or rightfully imprisoned for a number of years. You know, I think that the old adage for local news is if it bleeds, it leads. You know, we may be just structured to be more drawn to the extreme and to punishment than we are

to the hard work of reconciliation and forgiveness. But I also think there's something to blame here of our public institutions. You know, we don't really teach people in schools how to apologize and how to forgive, how to give a real apology rather than the kind of fake apology that says, if anyone was hurt, you know, too bad, I'm sorry, as opposed to really taking responsibility. And, you know, I've been teaching law for almost 40 years, and I recently realized we don't really teach people in law school about the tools of

forgiveness that are built into the legal system. And those tools include pardon power that the executives have, but also methods of exoneration and ways in which a criminal sentence can be commuted, or the use of amnesties, for example, in immigration violations. You know, President Reagan famously inaugurated an amnesty. These are tools that the legal system has, and we don't teach about it. So I think there's partly some responsibility at the heads of our formal institutions, whether it's courts or schools, that we don't spend as much time cultivating awareness and expertise in the techniques of forgiveness. And we spend more time on the kind of the raw response to wrongdoing that is a tit for a tat or an eye for an eye.

Part of your book that was so interesting is the time you spend talking about bankruptcy. How is debt forgiveness related to crime? I know it may seem a little unusual. It's certainly a different area of life, different area of law. But I don't think it's by accident that we use the same words. We talk about forgiving a debt the same way we talk about forgiving a crime. There's a possibility of forgiveness that the legal system recognizes through bankruptcy. It's actually built into the

United States Constitution. Thomas Jefferson, someone who fell into debt repeatedly during his lifetime, so he knew a lot about it, was one of the founding fathers who insisted that there be a provision in the Constitution that authorized Congress to create a national law allowing people to declare bankruptcy and start over. And it shares with forgiveness in the criminal system this idea of a restart, a fresh start, a clean slate. The clean slate is an idea that actually came from pubs in England where the bartender was keeping a running tab of who owed money and periodically sometimes would forgive the debts and wipe it clean and say, oh, you have a clean slate. You can start over. This possibility of starting over, we make much more available right now in this country for many people who have financial violations, who have debt, than for people who have crimes. So even people who have served their

criminal sentences in this country often face what we call the collateral consequences of crime, like they can't vote, or they can't have a professional license, or they can't get credit, they can't live in public housing, and they don't have a fresh start. Whereas people who declare bankruptcy and are able to start over financially, they have to rebuild their credit rating, but they actually can go on with their lives again. The last question I have for you is, when you see this huge explosion of true crime that we're seeing on TV and in movies and in podcasts like this one, what do you make of this great fascination with wrong and right and crime?

Well, the sense of justice and injustice is one of the great traits of human beings. But so is the interest in stories, you know, and the stories of true crime are among the most compelling. The stories of a wrong and a wrong that either is never made right or where there is a response. There is a kind of reckoning, a kind of justice mechanism. You know, think about how many plays and movies, at least in Western society, end up with a courtroom scene. You know, it is a huge part of our storytelling traditions that we use the justice system for the compelling power of adversarial processes, competing truths, you know, who will be punished and who will be punished, who will survive and who will go free. I also think, though, that there's a great concern,

and I share this concern, about when punishment and when forgiveness are done fairly and unfairly. When are they reflecting the biases and the allocation of power in a society? Do we trust the justice system? Is it racially biased? Is it class biased? Same with forgiveness. Are pardons given unfairly? And I think, again, this deep human need for fairness, you hear it among children, you know, that's not fair. This is an important quality that we have, a normative quality, a quality that says, I'm valued. I should be treated fairly. I think that there's something arresting about forgiveness, and it's a theme in, again, every culture, every tradition has deep, important stories about forgiveness. So I think it's compelling, but I also think it takes hard work.

It's not something that people just do automatically. You have to learn to forgive. Martha Minow. Her latest book is When Should Law Forgive? Thanks to Martha Minow and to Delia Umuna. Criminal is created by Lauren Spohr and me. Nadia Wilson is our senior producer. Susanna Robertson is our assistant producer.

Audio mix by Rob Byers. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at thisiscriminal.com. We're on Facebook and Twitter at Criminal Show. Criminal is recorded in the studios of North Carolina Public Radio, WUNC. We're a proud member of Radiotopia from PRX, a collection of the best podcasts around. One of those podcasts is the other show we make.

It's called This is Love. It's stories all about love and family and friendship and forgiveness and this season, it's all about animals. You can find out more by searching for This Is Love wherever you're listening to this right now. I'm Phoebe Judge. This is Criminal. Radiotopia.

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