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Martha Minow: How Can Restorative Justice Create A More Equitable Legal System?

Jul 10, 2020
Originally published on July 10, 2020 9:12 am

Part 2 of the TED Radio Hour episode Making Amends

Our justice system is flawed and inequitable, says Harvard law professor Martha Minow. She calls for a reset to emphasize accountability, apology, and service, rather than punitive punishment.

About Martha Minow

Martha Minow is a professor at Harvard Law School, where she has been teaching since 1981. Previously, she served as the Dean of the Law School between 2009 and 2017.

She is an expert in human rights and advocacy for members of racial and religious minorities, women, children, and persons with disabilities. She also writes and teaches about privatization, military justice, and ethnic and religious conflict. Minow is the author of several books. Her most recent title is When Should Law Forgive?

Minow received her undergraduate degree from the University of Michigan, her master's degree in education from the Harvard Graduate School of Education, and her JD from Yale Law School.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

MANOUSH ZOMORODI, HOST:

On the show today, making amends for past wrongs. We've been looking at U.S. history, but how do we think about our present? Should we reconsider justice in this country and how we ask individuals to make amends if they've committed a crime?

MARTHA MINOW: Oh, I'm so glad you put it that way. I've been thinking a lot about...

ZOMORODI: This is Martha Minow.

MINOW: And I teach at Harvard Law School, where I have been since 1981.

ZOMORODI: She studies the U.S. criminal justice system and international law.

MINOW: I've been so compelled by this story of people who, at a young age, have been either forced into the role of being a child soldier or drawn into conflicts and how international law treats such individuals.

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LUIS MORENO-OCAMPO: Mr. President, Your Honors...

MINOW: The very first case was against Thomas Lubanga...

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UNIDENTIFIED PERSON #4: Thomas Lubanga Dyilo...

MINOW: ...For drawing minors, children...

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MORENO-OCAMPO: Children.

MINOW: ...Juveniles into armed conflict.

(SOUNDBITE OF ARCHIVED RECORDING)

MORENO-OCAMPO: Some of the most serious crimes for the international community.

ZOMORODI: This is a recording of Lubanga's trial before the International Criminal Court.

(SOUNDBITE OF ARCHIVED RECORDING)

MORENO-OCAMPO: Thomas Lubanga systematically recruited children under the age of 15.

MINOW: And he was convicted of that activity as a violation of crimes against humanity.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON #4: The prosecution has proved that Mr. Thomas Lubanga Dyilo is guilty of the crimes.

MINOW: The question that then emerges - what about the minors themselves? - because many of them do commit horrible crimes. They kill people. They rape. They conscript other minors.

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MORENO-OCAMPO: They cannot forget what they suffer, what they saw, what they did.

MINOW: And in international law, the approach is very much to say, well, they deserve another chance. They are not the ones most responsible. The people most responsible are the adults who created the conflicts and drew or forced the minors into it.

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ZOMORODI: I mean, that's pretty remarkable that international law sees child soldiers as victims and gives them another chance.

MINOW: You are right. And how different that is from the way we talk about juvenile justice in this country...

ZOMORODI: Yeah.

MINOW: ...Where very similar elements are present. Young people are drawn into conflicts - drug dealing, for example - that is not of their creation, people who haven't yet had a chance to have a childhood, to develop a sense of right and wrong. What a different approach it is, as many countries have developed for child soldiers, to say, OK, we know you have that challenge, and we're going to help you. And you're going to learn some skills, as well as have some therapeutic opportunities, as opposed to what we do with juvenile offenders in the United States.

(SOUNDBITE OF TED TALK)

MINOW: 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.

ZOMORODI: Martha Minow picks up this idea on the TED stage.

(SOUNDBITE OF TED TALK)

MINOW: 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.

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ZOMORODI: So this is really about finding a way for them to move forward.

MINOW: It is a focus on the future rather than the past. So often our legal system, our criminal process, even school discipline processes focus entirely on what happened in the past. It's retrospective. Restorative justice has a view that actually the community, the people who are involved, are going to have some kind of a future.

(SOUNDBITE OF TED TALK)

MINOW: 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' Teen Court. 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.

ZOMORODI: So what does restorative justice look like in schools? Can you give us an example?

MINOW: I'd be glad to. It's an example, and it's a true story, about how restorative justice processes can work. And this involved a young woman named Mercedes who attended a public high school in California. And there were two other students who called her names, and they were almost getting into a fight. And a counselor took her aside and earned enough trust so that she admitted that she had stolen shoes from one of the other students. And the three of them agreed to have a conference - a restorative justice-style conference - which means that they each had a chance to describe their version of what happened. Turns out, they had known each other for a long time in childhood and had never found a way to talk without coming to blows. But suddenly, Mercedes apologized. And she said that, indeed, she had stolen these shoes. But she did so, she said, because her mother needed money. And she wanted to sell the shoes in order to get enough money so her mother could get a drug test and hopefully show the state that she was clean and then regain custody of two other children.

The other girls were moved, and they did not exactly forgive Mercedes, but they said they didn't expect her to pay the money back. And they wanted to go forward, and they just wanted assurances that they could trust her going forward. And later on, Mercedes said that if this process had not taken place, she was sure she would have been on the road to suspension and maybe expulsion and maybe out on the street. But the school might also refer the matter to the criminal justice system, especially if there were blows landed, and that could lead to charges, a hearing, even to penalties as severe as incarceration.

ZOMORODI: I mean, not to sound naive, but it seems unbelievable that if Mercedes' school didn't have this program, that pair of shoes could have landed her in prison.

MINOW: Sadly, there are more kids in the criminal justice system now, particularly girls. There's been a real increase in the numbers of girls who are involved in criminal justice. We are the most incarcerating country in the history of human beings. And I think that this is a wake-up call for people across the political spectrum that something's not working in our criminal justice system and the institutions that feed into it, which include schools. That's why we call it the school-to-prison pipeline, unfortunately, particularly for people of color.

ZOMORODI: You mentioned these restorative justice experiments happening in LA and D.C. But this isn't really about one school here or a couple juvenile courts. I mean, it sounds like you're really advocating for a broader mindset shift across the entire criminal justice system and society - that we need to rethink what constitutes a crime and why someone might commit it in the first place.

MINOW: I think we need a reset in this country. And yes, it is a mindset shift. So for example, the contrast between bankruptcy and criminal law is so striking because, you know, with bankruptcy, we say, yes, you have a chance for a second...

ZOMORODI: Right.

MINOW: ...A second chance. You can have a clean slate. You can start over. And we don't do that when it comes to crime. You know, even people who've served their entire sentence - you know, people lose the right to vote in many states. They lose the ability to get credit, to get jobs, to actually start a new life. And we need a mindset change. We absolutely need a mindset change.

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ZOMORODI: Yeah. And I guess that would mean that all of us would actually need to put greater value in the act of someone taking responsibility for their actions.

MINOW: I think the word responsibility in English is such an interesting word, because it - on the one hand, it certainly implies, you know, blame or guilt or who caused something. But I think it also carries with it the idea of ability to respond. And sometimes getting hung up on who caused what can get in the way of, you know, people assisting the turn from the past to the future, causes of why does a conflict occur. If that the example of Mercedes is one that we can point to, you know, why did her mother not have the ability to get money for a drug test? Why did this young girl think that she had to steal in order to help her mother?

ZOMORODI: Right. Right.

MINOW: Can we address that? And so if you really take restorative justice seriously and making amends seriously, it includes not just in this particular situation what do we do, but how do we understand what leads to these conflicts, and making a ground for building a different kind of society.

ZOMORODI: That's Martha Minow. She's a law professor at Harvard University, and you can see her whole talk at ted.com. Transcript provided by NPR, Copyright NPR.