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  • Would you ever forgive a person who kills a member of your family?

  • In September of 2019,

  • Dallas police officer Amber Guyger was sentenced for murder,

  • and then the brother of the victim

  • forgave her.

  • Brandt Jean was 18 years old,

  • and I joined the rest of the country watching on television in awe

  • at that act of grace.

  • But I also worried.

  • I worried that people who are African American like Brandt Jean

  • are expected to forgive more often than other people.

  • And I worried that a white police officer like Amber Guyger

  • receives a lesser sentence

  • than other people who commit wrongful killings.

  • But because I'm a law professor,

  • I also worried about the law itself.

  • The law leans so severely towards punishment these days

  • that it's part of the problem.

  • And that's what I want to talk about here.

  • The powerful example of one individual's forgiveness

  • makes me worry that lawyers and officials too often overlook the tools

  • that law itself creates to allow forgiveness,

  • when the principle should be the cornerstone of a thriving society.

  • I worry that lawyers and officials do not adequately use the tools of forgiveness,

  • by which I mean letting go of justified grievance.

  • And those tools are many.

  • They include pardons, commutations, expungement,

  • bankruptcy for debt

  • and the discretion that's held by police and prosecutors and judges.

  • But I also worry -- I worry a lot --

  • (Laughter)

  • I worry that these tools, when used, replicate the disparities,

  • the inequities along the lines of race and class and other markers

  • of advantage and disadvantage.

  • Biases or privileged access are at work

  • when United States presidents pardon people charged with crimes.

  • Historically, white people are pardoned four times as often

  • as members of minority groups for the same crime, same sentence.

  • Forgiveness between individuals is supported by every religious tradition,

  • every philosophic tradition.

  • And medical evidence now shows

  • the health benefits of letting go of grievances and resentments.

  • As Nelson Mandela led South Africa's transition

  • from apartheid to democracy,

  • he explained,

  • "Resentment is like drinking a poison and hoping it will kill your enemies."

  • Law can remove the penalties for those who apologize and seek forgiveness.

  • For example, in 39 states in the United States

  • and the District of Columbia,

  • there are laws that allow medical professionals to apologize

  • when something goes wrong

  • and not fear that that statement could later be used against them

  • in an action for damages.

  • More actively, bankruptcy law offers debtors, under some conditions,

  • the chance to start anew.

  • Pardons and expungements sealing criminal records can, too.

  • I have been teaching law for almost 40 years, hard to believe,

  • but recently, I realized

  • that we don't teach law students about the tools of forgiveness

  • that are within the legal system,

  • and nor do law schools usually explore

  • the potential for new avenues for forgiveness

  • that law can adopt or assist.

  • These are lost opportunities.

  • These are lost obligations, even,

  • because the students that I teach

  • will become prosecutors, judges, governors, presidents.

  • Barack Obama, my former student,

  • used his power as the President of the United States to give pardons.

  • That released several hundred people from prison after the law changed

  • to provide shorter sentences for the same drug crimes

  • for which they had been convicted.

  • But if he hadn't used his pardon power, they would still be in prison.

  • Legal tools of forgiveness should be used more,

  • but not without reason and not with bias.

  • A "New Yorker" cartoon shows a judge with a big nose and a big mustache

  • looking down at a defendant with the exact same nose

  • and exact same mustache

  • and says, "Obviously not guilty."

  • (Laughter)

  • Forgiveness could undermine the commitment that law has

  • to treat people the same under the same circumstances,

  • to apply rules evenly.

  • In this age of resentment, mass incarceration,

  • widespread consumer debt,

  • we need more forgiveness, but we need a philosophy of forgiveness.

  • We need to forgive fairly.

  • Contrast the treatment globally of child soldiers

  • with the treatment of juvenile offenders in the United States.

  • International human rights condemn and punish adults

  • who involve children in armed conflict

  • as those most responsible,

  • but treat the children themselves quite differently.

  • The International Criminal Court,

  • now with 122 member nations,

  • convicted Thomas Lubanga, warlord in the [Democratic Republic of the] Congo,

  • for enlisting, recruiting and deploying children, teens, as soldiers.

  • Many nations commit to ensuring that people under the age of 15

  • do not become child soldiers,

  • and most nations treat those who do become soldiers

  • not as objects of punishment

  • but as people deserving a fresh start.

  • Compare and contrast how the United States treats juvenile offenders,

  • where we severely punish minors,

  • often moving them to adult courts, even adult prisons.

  • And yet, like child soldiers,

  • teens and children are drawn into violent activity in the United States

  • when there are few options,

  • when they are threatened

  • or when adults induce them with money or ideology.

  • The rhetoric of innocence is resonant when we talk about child soldiers,

  • but not when we talk about teen gang members in the United States.

  • Yet in both settings, youth are caught in worlds that are made by adults,

  • and forgiveness can offer both accountability and fresh starts.

  • What if, instead, young people caught in criminal activity and violence

  • could have chances to accept responsibility

  • while learning and rebuilding their lives and their own communities?

  • Legal frameworks inviting youth to describe their conduct

  • could also involve community members to hear and forgive.

  • Called "restorative justice,"

  • such efforts emphasize accountability and service

  • rather than punishment.

  • Many schools in the United States have turned to use restorative justice methods

  • to resolve conflicts and to prevent them,

  • and to disrupt the school-to-prison pipeline.

  • Some American high schools have replaced automatic suspensions

  • with opportunities for victims to narrate their experiences

  • and for offenders to take responsibility for their actions.

  • As they describe their experiences and feelings about a theft

  • or hateful graffiti or a verbal or physical assault,

  • the victims and offenders often express strong emotions.

  • And other members of the community take turns

  • describing the impact of the offense on them.

  • The leader is often a student peer, who is trained to deescalate the conflict

  • and orchestrate a conversation about what the offender can do

  • that would help the victim.

  • Together, they come to an agreement about how to move forward,

  • what the wrongdoer can do to repair the injury

  • and what all could do to better avoid future conflicts.

  • Consider this example, recently in a publication.

  • A young woman named Mercedes M. transferred, in California,

  • from one high school to another

  • after she was so repeatedly suspended in her old high school

  • for getting into fights.

  • And here in her new high school,

  • two other young women accused her of lying

  • and called her the b-word.

  • A counselor came over and talked to her and earned enough trust

  • that she acknowledged she had stolen the shoes of one of the other classmates.

  • Turns out, the three of them had known each other for a long time,

  • and they didn't know any other way to deal with each other

  • other than to fight.

  • The facilitator invited them to participate in a circle,

  • a confidential conversation about what happened,

  • and they agreed.

  • And initially, each of them expressed a lot of emotion.

  • And then Mercedes apologized.

  • And she said she had stolen the shoes,

  • but she did so because she wanted to sell them

  • and take the money to pay for a drug test

  • so that her mother could show she was clean

  • and try to regain custody of two younger children

  • who were then in state protective care.

  • The other girls heard this,

  • saw Mercedes crying

  • and they hugged her.

  • They did not ask her to return what she'd stolen,

  • but they did say they wanted a restart.

  • They wanted a reason they could trust her.

  • Later, Mercedes explained

  • that she was sure she would have been suspended

  • if they hadn't had this process.

  • And her high school has reduced suspensions by more than half

  • through the use of this kind of restorative justice method.

  • Restorative justice alternatives involve offenders and victims

  • in communicating in ways

  • that an adversarial and defensive process does not allow,

  • and it's become the go-to method

  • in places like the District of Columbia juvenile justice system

  • and innovations like Los Angeles's Teen Court.

  • If tuned to fairness,

  • forgiveness methods like bankruptcy would be available

  • not only for the for-profit college that goes belly-up

  • but also for the students stuck with the loans;

  • pardons would not be given to campaign contributors;

  • and black men would no longer have 20 percent longer criminal sentences

  • than do white men,

  • due to how judges exercise discretion.

  • Forgiveness across the board is one way to avoid such biases.

  • Sometimes, a society just needs a reset

  • when it comes to punishment and debt.

  • The Bible calls for periodic forgiveness of debts

  • and freeing prisoners,

  • and it recently helped to inspire a global movement.

  • Jubilee 2000 joined Pope John Paul II

  • and rock star Bono and over 60 nations

  • in an effort to seek the cancellation and succeed in canceling

  • the debt of developing countries,

  • amounting to over 100 billion dollars

  • of debt canceled,

  • resulting in measurable reduction in poverty.

  • In a similar spirit, there are people who are copying the techniques

  • of commercial debt collectors

  • who purchase debt for pennies on the dollar

  • and then seek to enforce it.

  • Late-night television host John Oliver partnered with a nonprofit group

  • called RIP Medical Debt,

  • and for only 60,000 dollars,

  • they purchased 15 million dollars' worth of medical debt,

  • and then they forgave it.

  • (Applause)

  • That allowed nearly 9,000 people to have a restart in their lives.

  • This kind of precedent should trigger and encourage more such actions.

  • It's time for a reset,

  • given mass incarceration,

  • medical and consumer debt

  • and given indigent criminal defendants

  • who are charged and put in debt

  • because they're expected to pay for their own probation officers

  • and their own electronic monitors.

  • Forgiving violations of law

  • or promises to pay back loans

  • does pose risks.

  • Forgiveness may encourage more violations.

  • Economists even have a name for it.

  • They call it "moral hazard."

  • Should there be amnesty for immigration violations?

  • Should a president offer pardons to protect himself

  • or to induce lawbreaking?

  • These are tough questions for our time.

  • But escalating resentments hold their own dangers.

  • So does attributing blame to individuals

  • for circumstances largely outside their own control.

  • To ask how law may forgive is not to deny the fact of wrongdoing.

  • Rather, it's to widen the lens

  • to enable glimpses of the larger patterns

  • and to enable new choices that can go forward

  • if we can wipe the slate clean.

  • Thank you.

  • (Applause)

Would you ever forgive a person who kills a member of your family?

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赦しは、より公正な法制度を作成することができますどのように|マーサ-ミノフ (How forgiveness can create a more just legal system | Martha Minow)

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    林宜悉 に公開 2021 年 01 月 14 日
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