Why do some offenders get a fresh start while others receive harsh, one-size-fits-all sentencing?

By Nancy Gertner

When Should Law Forgive?
By Martha Minow

Martha Minow is no stranger to tackling the most complex moral, legal, and political issues of our time, from dealing with post-conflict societies in Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, to addressing the consequences of the Supreme Court decision in her study In Brown’s Wake: Legacies of America’s Educational Landmark. In the encyclopedic When Should Law Forgive? she does it again—by considering forgiveness across contexts, from child soldiers in Africa and American gang members; to the process of forgiving the debt of individuals, businesses, even countries; and finally, to granting amnesties and pardons to avoid the legal consequences of a criminal violation. She explores “why a fresh start is permitted in some cases but not others.” Her unique approach connects otherwise unlinked areas and, in so doing, exposes inequities, misperceptions, and biases.

Of course, as I read When Should Law Forgive? I wanted answers, concrete and specific ones. I had been a United States district court judge for 17 years. In each case, as I told my clerks, I had to “land” somewhere, to resolve the case and come up with an answer. Minow doesn’t “land,” but what she does is extraordinarily valuable. First, she provides us with the questions regarding how to think about issues of forgiveness on the theory that unless we do, the answers we come to in a host of areas are bound to be wrong. Second, by looking across all of these settings—bankruptcy, war crimes, criminal justice—she makes clear that forgiveness is neither aberrant nor some touchy-feely exercise on the margins of a proper, formal, rule-bound justice system; rather, it is integral to it.

Minow pairs a discussion of child soldiers during the civil war in Sierra Leone in West Africa with an account of young American gang members, in the chapter “Forgiving Youth.” She describes the child soldiers who committed incontestably horrific crimes but were themselves the victims of horrific abuse. The young gang members she writes about, too, faced harm and trauma, threats from their peers and from older gang members, in circumstances where they believed they had no options.

This is a topic with special resonance for me. I am writing a book entitled Incomplete Sentencesabout some of the young men I sentenced over 17 years—what I knew about them when I imposed sentences which were disproportionate, what I have learned in interviewing them since I left the bench, and how they should have been treated in a humane system. These young men were not juveniles, but as neuroscience suggests, neither were they adults; they were between 18 and 27, their brains still developing. And while the conditions they faced were surely not as extreme as those of the child soldiers, there are painful similarities. I interviewed one man I sentenced who said that he would rather live in jail than die on the street; he had no confidence in the ability or willingness of the police in his neighborhood to protect him.

Minow’s observations also echo the work of sociologist Bruce Western, who writes in Homeward, his book about the Boston Reentry project, that the men he studied were both victims or witnesses of violence and perpetrators. In fact, in the “physical condition” section of the presentence reports that were written by probation officers to guide federal sentencing, there were often references to scars from a stabbing, a bullet wound, an assault, and in one case, a bullet still lodged in the man’s brain. How then to deal with these young men?

The questions Minow asks are perhaps the ones that judges, legislators, and prosecutors should examine today:

Should [these young men] be forgiven because others are also to blame? Should they be forgiven because of their youth and vulnerabilities? … Should these individuals be viewed solely as victims? Should evidence of their own agency or autonomy in part or entirely cancel out their status as victims? Should choice entail culpability even when available choices are remaining in terrorized poverty or leaving home …? Should victimhood be treated as irrebuttable, simply based on the age of the individual, or should evidence that the individual exercised choice … when performing violent acts matter in considering whether to hold the individual accountable? And should the conditions under which an individual entered the combat—often conditions of coercion—determine assessments of their conduct for years that follow?

The question she doesn’t answer relates to “how,” one which occupied my time as a judge: how to make distinctions about the degree of agency of these young gang members when almost all of their backgrounds were characterized by abuse and neglect. This is what Minow describes as the spectrum of agency, exercising degrees of choice under constrained circumstance. There were those who chose not to be in a gang even when everyone around them was in one. There were those who chose to be in a gang but not to carry a gun. There were those who carried a gun and used it but, as the child soldiers did, “aim[ed] incorrectly, otherwise permitting potential victims to elude harm,” and those who executed their rivals. Does the fact that some find it possible to do so raise questions about culpability for others who do not?

Minow lays out the general approaches to evaluating these young men, whether to treat any minor in the role of a soldier or gang member, or a youthful offender, as categorically beyond blame, or to engage in case-by-case assessment, or to “devise a special approach combining blame and forgiveness.” The categorical approach would put child soldiers or gang members into the box of either perfectly autonomous actors, facing the full brunt of the criminal law regardless of their background, or the opposite, treating them as people completely impaired by their backgrounds, without independent will and responsibility.

American sentencing over the past 30 years has, especially in the federal courts, chosen the categorical. With mandatory minimum sentencing and mandatory federal guidelines, there has been a one-size-fits-all approach. We treated the man who started to deal drugs for school supplies the same way as we treated the man who dealt drugs to supplement his lifestyle. We ignored meaningful differences in background, mental health, addiction, and role in the offense. It created a false uniformity.

The case-by-case approach would enable discretion, allowing the judge to make distinctions among those in the group. But unless we can provide real guidance to inform that discretion— fleshing out in more detail answers to Minow’s questions—discretion has its own risks. There is the risk of unequal treatment between races, men and women, and individuals of different economic backgrounds.

Minow is clear in this chapter that she is not counseling forgiveness for everyone or every crime, if that means there is no accountability for a criminal act. She believes that accountability is critical in criminal law, to deter other wrongdoers, to lay down the norms defining acceptable and unacceptable conduct. And accountability is critical to the wrongdoers themselves. She cites the work of psychologist Cecilia Wainryb, who argues that engaging in violence disrupts the offender’s basic neurological regulatory processes; the failure to hold them accountable in any way may well exacerbate that impact.

Still, while Minow believes that the state has to say that the conduct is wrong, that can’t be all that the state says or, more importantly, all that the state does. Here Minow refers—again, generally—to punishment and its alternatives: conviction without punishment; noncriminal proceedings; specialized juvenile programs; support for economic, social, and psychological programs offered to promote reintegration; and especially, restorative justice. Danielle Sered, in Until We Reckon: Violence, Mass Incarceration, and a Road to Repair, provides the details that Minow does not in this book. She links restorative-justice approaches to creating the opportunity for an offender to be really accountable to his victim and his community. Sered writes that the criminal justice system is “like kryptonite to accountability,” which is critical both to survivors of violence and for offenders. At no point in the current system, except for the defendant’s perfunctory expression of remorse when he is about to be sentenced, is the offender asked to really reckon with what he has done or repair the harm he has caused. Sered has created a program called Common Justice that focuses on what she describes as the five steps of accountability:

(1) acknowledging responsibility for one’s actions; (2) acknowledging the impact of one’s actions on others; (3) expressing genuine remorse; (4) taking actions to repair the harm to the degree possible, and guided when feasible by the people harmed, or ‘doing sorry’; and (5) no longer committing similar harm.

Once the party responsible for the harm has fulfilled all their obligations to the harmed party, the felony is taken off their record and they do not go to prison. While there are limitations in who participates and the sample is still relatively small, the program has been successful; “fewer than 6 percent of Common Justice participants had been terminated from the program for being convicted of a new crime,” a far better record than prison.

One of the more interesting juxtapositions is Minow’s discussion in the chapter following “Forgiving Youth” entitled “Forgiving Debt.” She contrasts the way our legal system deals with criminal punishment—in which “the supply of forgiveness is deficient”—to the way we address debt. We are, she notes, generally forgiving about debt, especially business debt, but not necessarily so about the fees and fines heaped upon criminal defendants. Likewise, the Supreme Court has been scrupulous in evaluating excessive monetary punitive-damage awards from juries, less so with cases permitting life imprisonment and outrageous imprisonment for minor offenses.

Minow’s next chapter, “Amnesties and Pardons,” continues the theme of the limits of forgiveness, when forgiveness is an indefensible assertion of power, not an appropriate act of empathy. She cites President Trump’s 2017 pardon of Sheriff Joe Arpaio, who had been found guilty of criminal contempt for his “flagrant disregard” of a court order. The court order required that he stop harassing and arresting Latinos without any grounds for believing that they had committed a crime. This, to Minow, was a bridge too far. It was an invitation to disobey the law, a complete denial of Arpaio’s wrongdoing, eschewing any accountability for it at all.