On Forgiveness
Purely by coincidence, within a span of about ten years, I represented three different clients in different industries in different types of class actions filed in South Carolina. One client was a major retailer sued in state court over wage and hour claims, another was a building products manufacturer sued in federal court over product liability claims, and the third was a national bank sued in federal court over consumer claims. I appeared in court in all three cases – in a rural state court for the wage and hour case, in federal court in Charleston for the products case, and in federal courts in both Greenville and Charleston for the bank case.
Most of my time in Charleston was spent in the federal courthouse. I appeared there for a hearing in the building products case, and for hearings and two full-day mediation sessions in the bank case. Driving in from the Charleston airport to the downtown area, we passed a side street from which we could see the Emanuel African Methodist Episcopal Church. According to Wikipedia, the “church is one of the oldest black churches in the United States, and it has long been a center for organizing events which are related to civil rights.”
On June 17, 2015, the church was the site of a horrific hate crime, the mass murder of nine African-Americans who had gathered for a Bible study. Twenty-one-year-old Dylann Roof, a white supremacist, had posed as someone who wished to participate in the Bible study, and was graciously welcomed into the church by the loving people he soon would kill. He was charged and convicted of federal hate crimes and sentenced to death.
The criminal trial took place in the Charleston federal courthouse and was presided over by the same judge who had presided over my building products case. In the mediation sessions for my other Charleston case (drawn to a different judge), my team and I spent hours in a large room in the courthouse that just a few months earlier had been used by the AME church victims’ families during some portion of the hate crime trial. Learning that they had been there made me feel a little closer to the unimaginable pain and grief that they experienced.
I was reminded of the Charleston shooting recently when I read the small but important book, “When Should Law Forgive?” written by former Harvard Law School Dean Martha Minow. In it, she briefly recounts the state of mind of some of the victims’ family members:
[I]t is hard not to be in awe of the extraordinary and memorable public demonstration of forgiveness made by some family members of the nine people killed during a 2015 prayer session at the Mother Emanuel AME Church in Charleston, South Carolina: they offered their forgiveness to shooter Dylann Roof. Others expressed condemnation, one saying she hoped he would go to hell. As Roof remained unrepentant about both firing seventy-seven shots and his stated intention to start a race war, some family members of the victims said they were still working on forgiving him; others said their forgiveness did not mean he should avoid punishment. The daughter of murdered Ethel Lance said, “I will never talk to her ever again. I will never hold her ever again. You hurt me. You hurt a lot of people. But God forgives you. I forgive you.” Reflecting disciplined religious practice, another surviving relative explained, “We have no room for hating, so we have to forgive.”
Minow goes on to describe the criticisms of some that racial and gender disparities exist in what is expected about forgiveness (specifically, that blacks are expected to forgive more than whites, and women are expected to forgive more than men). She also points out that “some individuals, due to their religious tradition or personal beliefs, find forgiveness to be a worthy aspiration. By forgiving, individuals may express their faith and reclaim their dignity and power over the burdens of grief and victimhood.”
The strength and courage of some family members who found within themselves the power to forgive the shooter for his horrific crime is almost unfathomable, yet it was deeply rooted in their faith. Jesus spoke a great deal about forgiveness, and his last words from the cross included a prayer for the forgiveness of those responsible for his death. At some point, every Christian learns the Lord’s Prayer, and every time they recite it, they are both asking for forgiveness and acknowledging their responsibility to forgive. According to Richard Rohr, the Franciscan priest whom I have quoted before, “forgiveness is the beginning, the middle, and the end of the whole gospel, as far as I can see.” Rabbi Jonathan Sacks, whom I have also quoted before, points out that “[t]he forgiveness in Christianity has its origins in the forgiveness set out in the Hebrew Bible,” citing Joseph’s reconciliation with his brothers who had sold him into slavery, and that “[t]he most sacred day in the Hebrew calendar, Yom Kippur, the Day of Atonement, is the festival of divine forgiveness.” No doubt other religious traditions with which I am less familiar are also built on a pillar of forgiveness.
Forgiveness of the heart and forgiveness of the law may go hand-in-hand, but they are not the same. While the former is limited only by the victim’s capacity to forgive, the latter must take into account the consequences that legal forgiveness can have on societal norms. Minow talks about the consequential nature of legal forgiveness in a chapter about amnesty and pardons. She explains that one “concern about the use of pardons and amnesties is that it risks encouraging others to disobey the law.” She also points out that “[f]orgiveness judgments must always consider the jeopardy to the rule of law and to the fair treatment of others who obey the rules.” We can forgive a criminal on a personal level while still insisting that they pay a just penalty for their crime.
The ability to forgive is born from the recognition that we all are human, that we all at times act in wrongful ways that hurt others, and that no one should be completely defined by the worst thing they do. It requires the person who was harmed to recognize their own need for forgiveness for their own bad and hurtful behavior, even if their behavior doesn’t sink to the level of the wrongful acts of others that they are being asked to forgive. Forgiveness is least difficult when the wrongdoer exhibits genuine remorse, but as the Charleston families have shown, it is not impossible when they do not.
Despite its centrality in religion and in law, forgiveness is easier to understand in the abstract than to put into practice. Few of us have experienced loss that even comes close to the loss of the Charleston victims’ families, but we all know people who have hurt us in smaller ways, and we all carry grudges that can last our entire lives. Forgiving those who have hurt or offended us is hard, and it can especially take a super-human ability to rise above our anger and our pride to forgive someone who has inflicted a deep and painful wound. I don’t know that I could do what the people in Charleston did, but if they can forgive their loved-ones’ killer, how can I not forgive those who have hurt me in far less significant ways?
I fear that, as a society, we are witnessing an erosion of our capacity to forgive. With the aid of new technologies, we are able to capture and preserve video of people’s transgressions, or find offensive comments on twitter or other social media platforms. These new capabilities have both positive and negative implications. On the positive side, the cell phone has become a useful tool for exposing crimes and other heinous acts, as we will be reminded this week at trial of George Floyd’s killer in Minneapolis, and as we saw last year in a racist encounter in Central Park. On the negative side, modern technology may at times amplify less egregious acts of otherwise good people and contribute to what some now call our “cancel culture,” where one bad moment, even one that neither causes nor threatens physical harm, can end a person’s career or reputation and undo all of the good that they may have done and might have continued to do.
Of course, violent crimes should be punished, and malicious wrongdoers should face the consequences of their actions. But if some family members of the Charleston church victims can find it in their hearts to forgive the hateful killer who stole their loved ones from them, perhaps the rest of us can try a little harder to forgive those whose far less serious wrongful acts have exacted far less grievous tolls. In doing so, we all may find the one thing we most need in times of pain -- a mutual path to healing.
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In an earlier draft of this post, I referred to Victor Hugo’s Les Miserables and the pivotal moment in the book when the bishop forgave Jean Valjean for stealing his silver, an act of forgiveness that was transformative for Valjean and, consequently, salvific for the people he would later encounter. As I was fact-checking my draft, I came across a series of posts entitled “Religious Reflections on Religion and Law” at the website for the Center for the Study of Law and Religion at Emory University. The first post in the series, like my draft, cited both Hugo’s novel and Martha Minow, and gave an example of personal (but not legal) forgiveness being extended to an apparently remorseful white person who had killed an innocent black man. For anyone interested, the series can be found here.