Building a Forgiving Society

Posted in: Criminal Law

I am hard at work on a new book. It begins at the end. It imagines we have created a world that is considerably more forgiving than our own. Where society has neither the right nor the inclination to treat a human being as a monster, indelibly branded as unworthy of membership, and where no transgression, no matter how severe, permits society to dissolve the bonds that all humans share, simply because they are human. A world where punishment proceeds from the premise that wrongdoers were, are, and will always remain one of us, and that the goal of punishment is not to cast out but to bring back. Where people are not entombed in their past.

This is the world I want to live in. I come to it after (and because of) a long career as a criminal defense and civil rights lawyer. For more than three decades, I have defended people charged with the most vicious crimes. All were poor, most were people of color, and many faced the death penalty. I have also been at the forefront of challenges to the government’s post-9/11 detention regime and have represented prisoners held by the United States in Guantanamo, Iraq, and secret CIA black sites, all of whom were tortured horribly by their American captors. For my entire adult life, I have defended people whom others denounce as monsters.

But I have also seen the very thin and permeable line between offender and survivor. It is not always true, but it true enough to be a truism: Today’s victim is tomorrow’s perpetrator. I have never represented anyone charged with great violence who has not lived a life thick with trauma. Physical trauma that leaves a child quaking with fear that his life will end if the beating doesn’t. Sexual trauma that tears what should remain untorn, in body and soul. Psychological trauma that carves a hole that vats of alcohol and drugs will never fill.

And I have seen the tangled connection between choice and conditions. A child falls out of a tree and hits his head. A neighbor might tell me something like this: ‘He was in the hospital so long after that. I remember his momma rocking back and forth on that stoop right over there, clutching herself like that boy was still in her arms. Just praying so hard, ‘Please God don’t take my baby. Don’t take my baby. Don’t take my baby.’ God didn’t take him, but he was never the same after that.’ These few lines hint at a history that the papers never uncover. A history that leads to tragedy not in a direct way, like dominoes or Hollywood, but in a messy and complicated way, like life. Where the head injury leads to headaches. Because there’s never enough money or the insurance runs out, the headaches lead to weed. Weed leads to opioids. Opioids to robberies. In and out of work. In and out of jail. In and out of rehab. ‘I mean it, mom. This time is different. I can feel it.’ But this time isn’t different. Broke. Desperate. Shaking. ‘The man in the liquor store wouldn’t give him the money and he snapped. The paper says he shot him for $47 but it’s not like that.’

In this world, the real world, choice and circumstance coil together in a Gordian knot of infinite complexity that mocks armchair concepts like free will. In the real world, events unfold on the undulating terrain between planned and accidental, today closer to one pole and tomorrow the other, but never far from either. Yet an unforgiving society closes its eyes to this complexity. It pretends that transgressions are simply events floating free in time and space, an act undertaken by those whose choice is unfettered by the memory of what was or the prayer of what might be. In this make-believe world, a person is stripped of everything that makes them human. They do not live so much as exist, a soulless being without fear or hope. Whatever this thing is, it is not human.

All of this work has led me to a deeply personal moral philosophy, which I long ago distilled to eight words: There is no them, there is only us. This is a more challenging philosophy than it might seem and means far more than the familiar observation that everyone is equal before the law. My philosophy links me, at a level of shared humanity, to people who have caused and endured great pain. In every way that matters, I know that I am no different from them and they are no different from me. We do not make the same choices and do not share the same thoughts. But nothing in their thoughts or choices deprives them of the dignity and respect that is theirs to enjoy simply by virtue of their humanity. I do not believe in monsters; I do not believe in the other.

Because of my work, you may think I have in mind the distinctly American infatuation with incarceration. Prison is certainly the most obvious site of our unforgiveness but it is not the only one. When I decry the tendency to imprison people in their past, I do not mean simply the two million people behind bars or the five million more under some form of carceral supervision, or even the tens of millions who have a criminal record. Imprisonment takes many forms and no one needs to spend a night in jail to feel the sting of an unforgiving society; ostracism and banishment have more in common with incarceration than many people care to acknowledge.

When I describe society as unforgiving, I mean much more than the workings of the criminal justice system. An unforgiving society approaches transgressors and transgressions in a particular way. It is dogmatic and moralistic, quick to condemn but slow to inquire. It is uncurious, ungenerous, and unyielding. The root of this behavior is a belief that society is weak and besieged, which leads it to treat real or imagined threats with, yes, unforgiving ferocity. Because an unforgiving society believes the future always hangs in the balance, it polices its real and metaphorical boundaries with terrified zeal, ever on the lookout for the monsters who imperil its existence and certain, in a childish way, that “we” are safe only once “they” are purged. And because monsters cannot change, their exile cannot be softened.

If you are content with life in an unforgiving society, then you will not like my book, since we aspire to live in very different places. But if you are attracted to the idea of a forgiving society, then I think my book will speak to you. Yet I caution you that the journey to get from here to there is more difficult than you might think. We live in an age when demonization is a first impulse rather than a last resort. Society has become singularly adept at creating monsters and casting them out. We have become this way because the inclination to treat a fellow human being as irredeemably unworthy of membership is, for many people, irresistibly seductive. It is a temptation that today seduces the left as much as the right, the rich as much as the poor. In a world where Americans seem to agree on nothing at all, they agree on this: We are surrounded by monsters.

But we aren’t. There is only us, and that is challenge enough.

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