When Should Law Forgive?

July 15, 2019
Minow (Between Vengeance and Forgiveness), former dean of Harvard Law School, offers a thoughtful and well-reasoned treatise on forgiveness as an alternative to traditional legal remedies. She begins with the question of forgiving youth, specifically child soldiers in Africa and American gang members. Minow explores a number of perspectives, considering young offenders’ individual responsibility and the knowledge that they are also victims who have often been coerced, seduced, or kidnapped. Taking as a legitimate goal the opportunity for young offenders to have a constructive future, she advocates for the development of separate juvenile justice systems, restorative justice mechanisms, and truth commissions. In a similar vein, she argues that forgiving unmanageable debt loads owed by governments and individuals alike can yield better economic results than exacting payment at any cost, despite the risk that it could make some consumers act recklessly. On the topic of amnesty, she weighs the societal gains and risks, using as examples the amnesty for Vietnam draft avoiders and Gerald Ford’s pardon of Richard Nixon. Though her theories are abstract in some ways, she connects them to topical subjects including presidential self-pardons, immigration, and the legalization of marijuana. Minow’s compassionate, knowledgeable, and nuanced examination of the gains that may follow policies that substitute forgiveness for rigid legal remedies is groundbreaking and should provide a useful framework for future policy makers.

A Harvard Law School professor examines when it is appropriate for the law, that instrument of punishment, to show mercy through forgiving misdeeds. The law in this country, writes Minow (In Brown's Wake: Legacies of America's Educational Landmark, 2010, etc.), is already inclined to forgive legal misbehavior in the matter of debt, allowing for bankruptcy proceedings in the place of erstwhile debtors' prisons. That there is stigma attached and that those who go through the process may find their credit ruined for years does nothing to diminish the fact that those with legitimate claims against the debtor are forced into a system that may pay them pennies on the dollar. Thus, while's there no reason to take joy in bankruptcy, at least it's a possibility that all parties settle on. Things are different when it comes to murder, individual or mass, as with the genocidal killings in parts of Africa a generation ago, when Archbishop Desmond Tutu and other leaders organized campaigns that forgave while not forgetting. Minow examines when it is appropriate for legal institutions to press for forgiveness rather than punishment. For example, what of the case of child soldiers, kidnapped and pressed into service in terrible campaigns in conflicts throughout the world? "To ask how law may forgive is not to deny the fact of wrongdoing," writes the author of this and other problems. "Rather, it is to widen the lens to enable glimpses of these larger patterns and to work for new choices that can be enabled by wiping the slate clean." Throughout, Minow writes evenhandedly. She observes that in the instance of presidential pardons, one vehicle for forgiveness, it all hinges on lack of corruption--lack that could not be demonstrated in the instance of Donald Trump's pardon of disgraced Arizona lawman Joe Arpaio, nor by Bill Clinton's pardon of big-ticket donor Marc Rich. Forgiveness works, Minow holds, but only when it is clean, unforced, and willingly extended. A solid, accessible contribution to the literature of restorative justice.

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August 1, 2019
Law professor Minow closes this measured exploration of legal forgiveness by quoting the aphorist Paul Boese: Forgiveness does not change the past, but it does enlarge the future. Her book examines the ways that remedies like pardons and restorative justice can expand the future?not only for those who have run afoul of the judicial system, but for society as a whole. The book considers three avenues where law has endeavored to temper justice with mercy: reintegration of child soldiers, wiping out unfair or unpayable debt, and government amnesty. In each case, legal institutions must balance the risk of incentivizing future wrongdoing against the societal benefits of welcoming offenders back into the fold. Minow gives weight to both sides of the moral equation, while emphasizing the culpability of the corrupt and flawed institutions that contextualize individual wrongdoing. Though not without lapses in insight (Minow is troublingly equivocal about the moral fault of a caregiver who murdered his disabled child), this book will help readers understand the thorny complexities of forgiveness under law.(Reprinted with permission of Booklist, copyright 2019, American Library Association.)