Making Room for Forgiveness

One night in September 2018, in a gentrifying neighborhood just south of downtown Dallas, a twenty-six-year-old accountant named Botham Jean came home from work. Without locking his apartment door, he changed into shorts and a T-shirt, served himself two scoops of vanilla ice cream, and settled onto his couch to watch a football game. Before the ice cream began to melt, a stranger barged in, yelled, “Let me see your hands,” then shot him dead.

The stranger was an off-duty police officer, a white woman named Amber Guyger. Guyger lived in the apartment directly below Jean’s. She later said that she had accidentally entered the wrong apartment, mistaking Jean, who was Black, for an intruder in her home. In a New York Times story about the incident, the reporters Manny Fernandez and Marina Trahan Martinez noted:

The racial profiling of black men and women by white police officers [has] put new phrases into the American vocabulary—driving while black, walking while black, shopping while black. The shooting of Mr. Jean seemed to demand its own, even more disturbing version: being at home while black.

Guyger was not immediately arrested. She was not immediately fired. Three days later, she turned herself in to authorities on a manslaughter charge. Booked into the Kaufman County jail, she was freed on $300,000 bail the same day. Later that month, she was dismissed from the police department. Two months after that, a grand jury raised the manslaughter charge to murder.

When Guyger went to trial in the fall of 2019 most people familiar with the American legal system had little hope that she would be held accountable for killing the unarmed Black man. “Black Americans,” the activist Brittany Packnett wrote in Vox at the time, “were too wise and too weary to let ourselves believe, even for a moment, that this system would do anything but break our hearts once again.” So when, after five hours of deliberation, the jury found Guyger guilty of murder, Packnett wrote, “the shock was palpable.” Jean’s mother, Allison, raised her arms in exultation. “God is good. Trust him,” she said as she walked out of the courtroom.

Yet the most dramatic moment came the following day, during the sentencing phase, when Jean’s younger brother, Brandt, took the stand. Brandt, who was eighteen at the time, was there to make a victim impact statement, during which crime victims usually speak about the pain the defendant has caused, asking for the harshest punishment possible. But Brandt addressed Guyger in a hushed and intimate tone. “If you truly are sorry—I know I can speak for myself—I forgive you,” he said. He tugged at his collar. “I wasn’t gonna ever say this in front of my family,” he continued, “but I don’t even want you to go to jail. I want the best for you.” Then he looked at the judge and asked, with some urgency, “Can I give her a hug, please?” After a moment, the judge assented. Brandt stepped down from the stand and embraced Guyger for nearly a full minute as she sobbed.

Brandt’s words were widely celebrated. Even the county prosecutor, whose office had been arguing for a harsh penalty, called his embrace “an amazing act of healing and forgiveness that is rare in today’s society.” Guyger was sentenced to ten years.

Some observers did not welcome this act of forgiveness, objecting to a perception that Black people are too often expected to forgive. Others worried that such absolution might preclude a serious examination of police shootings in America. But there was something else in the response to Brandt Jean’s hug: a discomfort with the notion of forgiveness itself.

The United States has the highest incarceration rate in the world. Over 200,000 people are serving life sentences across the country. Because the tough-on-crime movement that began in the 1970s gave us ever-longer sentences, effectively decimated the parole system, and scared officials away from granting pardons, most of these incarcerated people have effectively no chance of being freed. Life sentences without parole are “virtually unheard of elsewhere in the world,” Ashley Nellis, the author of a 2021 study on lifetime imprisonment, told The Washington Post. “Imprisonment beyond 20 years is a predominantly American phenomenon.”

In the years I’ve spent working as a public defender and reporting on criminal justice, I have seen many incarcerated people, including those convicted of serious crimes, working to make amends with people outside prison and to serve their communities inside prison. Yet even if victims or their families decide to forgive, the law rarely does.

The American legal system routinely refuses to grant forgiveness to people who commit even minor infractions. On one typical day as a public defender, I stood in Bronx Criminal Court and listened to a prosecutor declare that my client, accused of trespassing for cutting through a city park after dark, faced a year in prison. I have seen dozens of people sentenced to years in prison for feeding their addictions, or having psychotic breaks. One of the first people I ever represented was a woman accused of shoplifting ingredients to make her children lasagna on Christmas Eve. After being arrested and taken from her children in handcuffs, she pleaded guilty to a noncriminal violation. She spent Christmas that year in central booking.

“Ours is an unforgiving age,” Martha Minow, a legal scholar and former dean of Harvard Law School, writes in When Should Law Forgive? An expert in international and domestic human rights, she examines how the American criminal system could become more forgiving, drawing analogies with others, both international (truth and reconciliation commissions, for example) and domestic (political pardons, bankruptcy court). Minow shows, writing with elegance and power, that there is nothing inevitable about our country’s “particularly punitive” approach to “defining, prosecuting, and punishing crimes, especially if the accused is a member of a racial minority.”

Minow compares the way the United States treats crime to the way it handles debt. America, she writes, “has a generally forgiving policy toward debt, especially business debt, with bankruptcy procedures allowing companies a fresh start.” Why should forgiveness be plentiful in one realm and scarce in the other? The comparison yields the central insight of her book: “Making more opportunities for forgiveness within law might help law grow toward justice,” she writes. This “might also nudge individuals and societies toward the respect and generosity expressed through apology, restitution, and forbearance from law’s most stringent demands.”

Other societies that we regard with admiration have considered forgiveness an important value; some have officially forgiven those who inflicted serious harm. In the summer of 404 BCE, for instance, after Sparta defeated Athens in the Peloponnesian War, a group known as the “Thirty Tyrants” led a coup that lasted eight months. They terrorized Athens, expelling half its population and killing between 5 and 10 percent of its citizens. When Athenian leaders were finally able to restore democracy, they granted the tyrants amnesty in order to forestall cycles of revolution and counterrevolution. They were also trying to demonstrate “evidence of admirable moderation and character,” Minow writes.

In 1998 Minow published Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, in which she examined responses to mass violence such as South African apartheid, ethnic cleansing in the former Yugoslavia, and the Holocaust, seeking a balance between too much memory, which can trap people in past traumas, and too much forgetting, which can prevent individuals and societies from healing. But why navigate between vengeance and forgiveness, some readers asked, when you could simply promote forgiveness? In her new book, Minow explores what it would mean to pursue only forgiveness, and to pursue it explicitly.

Within the law, Minow explains, forgiveness can take three forms. First, legal institutions can allow people to express remorse and ask for forgiveness from those they have harmed. Today, the law often prevents individual acts of forgiveness; apologies can be used as evidence against the person apologizing, and orders of protection make it illegal for most people accused of violent crimes to communicate with their victims.¹ Minow suggests that courts ought to “make room for voluntary expressions of apology and forgiveness, shielding those who make such interpersonal expressions from legal liability or even rewarding them.” Apologies could happen in meetings before or after official legal proceedings, or could even take the place of the proceedings themselves.

There are, Minow grants, drawbacks to these measures. She was a consultant for the South African Truth and Reconciliation Commission, in which victims and perpetrators of human rights violations during apartheid were invited to describe their experiences. She finds value in the airing of grievances but notes that one study found that only 10 percent of tribunal participants were willing to forgive wrongdoers who took responsibility for their deeds. And these kinds of processes, she worries, might place undue pressure on victims to forgive.

Second, legal systems could grant discretionary power to police, prosecutors, judges, presidents, governors, and other authorities, integrating forgiveness in the form of leniency. Minow encourages creating more opportunities for leniency and more practical use of the avenues that already exist. But she cautions that discretionary leniency “may be racially biased, disrespectful of potential victims of misconduct, or otherwise inconsistent and unfair.” She suggests expanding the use of pardons and commutations while implementing controls to guard against biases and corruption. She notes that some other nations give the pardon power to an independent council or allow for judges to veto clemency decisions. These controls would aim to prevent, for example, Donald Trump’s pardons of a long list of his cronies.

The third route Minow identifies is forgiving entire groups of people for certain offenses—for instance, young people who commit crimes under influence from adults, or draft-dodgers from the Vietnam War, to whom Jimmy Carter granted amnesty on his first full day in office in 1977. As leaders in ancient Athens recognized, blanket amnesties help societies move on from conflict and avoid cycles of retaliation. In individual cases, Minow applauds efforts to eliminate the collateral consequences of convictions that make it difficult or impossible to find jobs or housing, or to vote.

“Forgiveness need not bar prosecution or other legal consequences for the wrongdoer,” Minow writes in her introduction, as if to assure the reader that no radical changes will be advocated in the book. It is strange and somewhat startling for Minow to emphasize the limits of her suggestions (most of which already exist in some form or are already espoused by activists) so early on—she is comfortable entertaining some progressive ideas, but less comfortable advocating for their use. Even when she proposes ideas that could, in theory, make the justice system more just, she seems unwilling to take what would seem like the next logical step: calling for a broad implementation of those ideas. When discussing how forgiveness might engender “respect and generosity,” the verb she uses is not “revolutionize” or “overhaul” but “nudge.”

Minow devotes considerable space to reasons for caution, noting that official forgiveness might leave a hunger among individuals for accountability, or that forgiveness might be doled out inequitably or treat victims insensitively. These reservations and a general aversion to transforming the current system limit Minow’s vision. At times, it seems a more fitting title for the book would be “When Shouldn’t Law Forgive?”

When she focuses, for example, on reasons to limit the power to grant pardons and commutations—in a book about forgiveness in a country where pardons are desperately needed and severely underused—the emphasis seems off. Some of her concerns are valid, but too much forgiveness is not a problem our criminal system is likely to face anytime soon. (I should note that public defenders reject the term “criminal justice system,” for its implication that justice occurs within it.)

Our system is retributive, meaning that it holds central the idea that those who commit wrongful acts deserve to suffer a proportionate punishment. The word is casually used to mean punitive, or even vengeful, but philosophers employ a narrower definition: that those who commit wrongs deserve to suffer a proportionate but not excessive punishment, and that imposing those punishments is intrinsically good. Minow, in her emphasis on intent and just deserts, settles on retribution as a guiding principle. “A wrong should be made right; an intentional harm should be met with a consequence,” she writes. “This idea is central to law: pursuing rights and correcting wrongs are law’s heartland.”

Her vision is similar to the system we have today, only somewhat less harsh: shorter prison sentences and fewer collateral consequences. But by protesting the severity of prison sentences without questioning the entire basis for them, she is, in a sense, arguing that our system is not retributive enough—that punishments meted out are not proportionate, and could be recalibrated with greater fairness. This holds Minow back from a radical rethinking of criminal justice in America. In many ways, retribution is antithetical to forgiveness—which means forgoing punishment even when it’s deserved.

Retribution is so ubiquitous that it can be hard to envision any other way of handling problems—it is the water in which we swim. But there are important alternatives. Minow gives credence to restorative justice, describing, with apparent admiration, processes that “tend to focus on the future more than the past and on the community as well as on the immediate victim and offender.” Unlike retribution and rehabilitation, restorative justice is centered on meeting the needs of the victim while also seeking to hold offenders accountable for the harms they have caused. It is often a community process involving multiple stakeholders who know one another well. But noting the spotty success of the Truth and Reconciliation Commission in South Africa and other restorative programs in achieving forgiveness, Minow writes that in the US they have been used “largely for minor crimes such as vandalism.” She certainly does not recommend we do away with our adversarial legal system and scrap jury trials.

Consequentalism, the idea that the morality of an act is determined solely by its consequences, is another alternative to retribution. A consequentialist system would punish a wrongdoer only if the punishment resulted in more good than harm, rather than mete out punishment for its own sake. Consequentialism would likely mean investing in social services and forgoing most prosecutions currently brought. This philosophy appears when Minow discusses debt, but less often when she discusses criminal justice.

Tacitly proceeding from the retributive assumption that intentional criminal harms should, broadly speaking, be met with a proportionate punishment, Minow ends up separating those worthy of forgiveness from those unworthy of it. One thorny application of this logic comes in a case study about child soldiers in South America and Africa. Many child soldiers, Minow recognizes, did not join entirely of their own free will: they were kidnapped, pressured by financial hardship, aggressively recruited, or coerced to fight. They are not responsible for the larger forces that caused the conflict and led to their involvement. Even if the harm child soldiers caused was not exactly involuntary, Minow recognizes that they were used as “tools of violence organized by adults.”

But what of their agency as individual actors? The same question applies to young Americans in gangs. “Like child soldiers,” Minow writes, “children and teens are drawn into violent activity in the United States and elsewhere when they have few other options, when they are threatened, and when adults induce them with money or ideology.” Her comparison challenges the reader to think not only sympathetically but also pragmatically. “Perhaps a new concept could be devised to acknowledge the complexity of individuals who have been both victims and perpetrators,” she suggests in one of the book’s more innovative sections.

As a public defender, I have found the adage “hurt people hurt people” to be almost universally true. Minow’s concept of a victim-perpetrator might help bridge the gap often left in our adversarial system between the narrative of the prosecution (the defendant deserves condemnation) and that of the defense (my client deserves sympathy). All of my clients are alleged perpetrators and, in other ways, also victims. Creating a new category to encompass those messy truths could be revolutionary: it could prioritize rehabilitation over punishment and shift the focus toward changing the circumstances that lead people to commit crimes in the first place.

And yet Minow stops notably short of suggesting sweeping changes. She recommends relatively limited reforms that would, in theory, yield a less destructive system, if properly applied. But these solutions are ill-matched to the scale of the problem.

One way Minow would integrate forgiveness into criminal cases is through increased judicial discretion. These days, such discretion often manifests in specialized “problem-solving courts,” which require defendants to engage in certain therapeutic programs, submit to regular drug screenings, and abide by other court rules, sometimes including whom they can live with and where they can travel. If the defendants successfully abide by these rules over the course of months or years, they can avoid incarceration, and the charges are reduced or dismissed; if they are unsuccessful, they avoid neither. The goal of these courts is to address the root problems that lead people toward repeated encounters with law enforcement, such as drug or alcohol use, trauma, homelessness, and mental illness.

I have practiced in such courts as a public defender, and they don’t always play out the way Minow and others anticipate. In 2013 New York established twelve Human Trafficking Intervention Courts. Judge Fernando M. Camacho of the Queens Criminal Court helped bring about this innovation after noticing that many sex workers who came before him were trapped in a cycle: they would solicit clients, be arrested, get criminal records, and then have an even harder time finding work outside the sex trade. “My gut told me they were not criminals,” Camacho told the Times. “They were not doing this voluntarily.” He began informally connecting people he believed to be sex-trafficking victims to volunteers, an experiment that eventually became the Human Trafficking Intervention Courts. Instead of sending defendants to jail, the courts send them to individual counseling and group therapy to help them leave the sex trade, and, in exchange for their compliance with court-mandated programs, dismiss their charges and seal their records.

Courts like these, which have proliferated nationwide, appear to present a softer, less adversarial, and less retributive approach to criminal justice. But in practice, these largely unregulated courts grant individual judges enormous power that leaves room for them to act arbitrarily or reinforce their own biases.² In her recent article “The Problem of Problem-Solving Courts,” Erin Collins, an assistant law professor at the University of Richmond, demonstrates that the data on the efficacy of these courts is not convincing and that the courts might actually create “resistance to alternatives that might truly reform the system”—alternatives like decriminalizing sex work entirely.

When I practiced in human trafficking court in the Bronx, the judge often seemed determined to take a kind, nonadversarial stance toward my clients. But my clients were acutely aware that there were criminal charges pending against them, and those charges could be reinstated if they deviated in any way from the court’s requirements, many of which they found personally intrusive. Testing positive for substances (including alcohol or marijuana), missing a counseling appointment, living with a partner the court deemed unsuitable, or any new arrest, even an unjustified one, could result in the entire deal unraveling, jail time, and a criminal record.

The whole agreement was conditioned on the defendant’s willingness not to fight any aspect of the charges against them. The power imbalance between my clients and the court informed their every decision. The best option for them, in most cases, was to play along submissively, accepting whatever diagnosis and treatment the court dictated. Most clients told me that they felt degraded by the process.

In New York, human trafficking courts have become part of a larger debate over whether sex work should be considered a crime. If Judge Camacho believed that sex workers are not criminals and should not be treated as such, why are they in a criminal court, facing criminal charges? Why not just offer the services without the handcuffs, the arrest, the looming threat of jail? Why not implement a more comprehensive alternative to the prison system—the kind of vision articulated by academics and activists such as Mariame Kaba, Allegra McLeod, Angela Y. Davis, Ruth Wilson Gilmore, and Leigh Goodmark?

McLeod, for example, would expand a broad range of social services to avoid imprisonment, including decriminalizing less serious infractions, increasing restorative adjudicative systems, and creating safe harbors for people fleeing violence. Goodmark, in her book Decriminalizing Domestic Violence (2018), argues that criminalization “does little to prevent intimate partner violence.” Counterintuitive as it may seem to some, Goodmark’s research shows that over the past three decades, criminalization of domestic violence has increased incarceration but has not reduced domestic violence. Financially empowering people vulnerable to domestic violence, and giving more economic stability to those who might commit violence, might help prevent it. To be clear, none of these are politically mainstream ideas, but why should a book of legal theory concern itself with polling numbers?

To help the law “grow toward justice,” as Minow hopes, more radical thinking is necessary. In Becoming Abolitionists the civil rights lawyer Derecka Purnell writes of her realization that “in reality, the police were a placebo…. They could not heal relationships or provide jobs. They did not interrupt violence; they escalated it.” Purnell does not seek to replace police with another group, but rather proposes that we examine why people in crisis call the police in the first place. If a community could meet those underlying needs—with, for instance, “street violence interrupters, mediators, and resources for families of victims as proactive measures for conflict resolution and de-escalation”—this could erode the need for police. It could also, more fundamentally, prevent harm: harm among members of the community, and harm inflicted by law enforcement. This would obviate the need for forgiveness in the first place.

Last year, after George Floyd’s murder, protests against police misconduct fanned out across the country—and many peaceful demonstrators found themselves beaten, pepper-sprayed, and arrested by the police. A number of officials did, in the following weeks, adjust their response following widespread calls for reform. The police chief in Fort Worth, Texas, dropped criminal charges against dozens of protesters. In Los Angeles, officials agreed not to prosecute thousands of protesters who were arrested for violating curfew or failing to disperse. In Philadelphia, Mayor Jim Kenney waived all code violations issued to protesters, saying, “My decision to waive these violations is not a statement on the validity of the individual citations. Rather, it is a recognition of the core concerns that caused thousands to demonstrate on the streets of Philadelphia.”

These actions may seem like the sort of thing Minow argues for: an appropriate, even generous, application of forgiveness to the law—shifting attention away from individual cases and toward the bigger picture (in this case, racism). But many of the protesters who were thus forgiven were not practicing civil disobedience. Some were detained, at times wrongly, for violating administrative codes and curfews. Others were rounded up for no apparent reason other than exercising their First Amendment right to speak out against police violence. Some of them were assaulted by armed officers. What sense does it make to drop the spurious charges against them and call this forgiveness? Why not call it an apology, and ask for forgiveness?

In 2015 Chicago became the first city in the US to approve municipal reparations for police violence. From the early 1970s to the early 1990s, former Chicago police commander Jon Burge and other officers tortured more than 125 individuals, most of them Black, into confessing to crimes, many of which they had not committed.³ Included in the reparations package was a formal apology from the mayor, financial compensation to survivors and their families, waived tuition to city colleges, a mandatory Chicago Public Schools curriculum to educate students about police torture under Burge, and the creation of a permanent public memorial.⁴ Official public recognition of past wrongdoing, along with reparations, can be part of abolition; the law can apologize, and seek forgiveness.

Two years ago, Botham Jean’s younger brother Brandt was celebrated for the grace he demonstrated in embracing Amber Guyger. But he alone could not forgive her on behalf of everyone who has ever been treated unfairly by the American criminal system—he could forgive her only for the pain she caused him personally by killing his brother. There remains a need for such a wider reckoning. “I have preached #forgiveness for 25 years,” former NAACP president Cornell Brooks wrote in a tweet above a photo of Jean hugging Guyger. “BUT using the willingness of Black people to forgive as an excuse to further victimize Black people is SINFUL.” For continually asking African Americans to forgive police brutality, he wrote, “America should ask Black people forgiveness.”