11

Moral Justice: Retribution and Restoration

As I walked out the door toward the gate that would lead to my freedom, I knew if I didn’t leave my bitterness and hatred behind, I’d still be in prison.

—Nelson Mandela, after serving twenty-seven years in prison for his struggle against South African apartheid1

Have you ever thought about killing someone? I have. I’ve imagined it a number of times, and with a number of different people. Or, if not actually killing the particular bastard who’s inspired my wrath, at the very least I imagine dislocating his jaw with a crushing roundhouse knuckle sandwich that sends him reeling to the pavement. I think of cursing him all the way down for his malicious, backstabbing actions. In these fantasies I am Cassius Clay standing over Sonny Liston in their 1965 title bout, taunting my opponent to “get up and fight, sucker” after that first-round knockout. I am Billy Jack cutting down racist ruffians who dare to bully innocent Native American youths, burning a slow fuse that escalates into an explosive rage of martial-arts justice as “I just go berserk,” a moment of reckless heroism that made it a cult classic of indie film. It’s almost embarrassing to admit it, but such fantasies have brought me enormous pleasure as I imagine the feeling of justice being served up to those who have done me, and others, wrong. Of course, I’ve never done anything like this—nor would I unless I or a loved one were directly threatened with grievous bodily harm—but I can identify with Mark Twain when he quipped, “I didn’t attend the funeral, but I sent a nice letter saying I approved of it.”

I am not alone, and neither are you if you answered the opening question in the affirmative. In fact, the evolutionary psychologist David Buss, in his 2005 book The Murderer Next Door: Why the Mind Is Designed to Kill, reports that most people have harbored homicidal fantasies at some point in their lives. Who are these homicidal fantasists? “Not the gang members or troubled runaways one might expect to express violent rage,” Buss explained, but “intelligent, well-scrubbed, mostly middle-class kids.” The results shocked him. “Nothing had prepared me for the outpouring of murderous thoughts my students reported,” which led Buss to suspect “that actual homicides were just the tip of the deep psychological iceberg of murder. Could actual murder be only the most flagrant outcome of a fundamental human drive to kill?”2

To find out, Buss not only conducted his own studies, but also gathered the results of other related studies, which together comprised a database of more than five thousand people worldwide. The results illuminate the darker side of human nature: 91 percent of men and 84 percent of women reported having had at least one vivid homicidal fantasy in their life. One man who acted on these fantasies, from a group of Michigan murderers whom Buss studied, said he killed his girlfriend because “I was deeply in love with her and she knew that. It infuriated me for her to be with another guy.” Jealousy is a common motive, as evidenced in another case in which a man flew into a jealous rage during sex with his wife. Why? According to him, she asked him, “How does it feel to fuck me right after someone else has?” He strangled her to death in bed.3 The impetus behind jealousy is not hate, but attachment and fear of loss, as in this police confession by a thirty-one-year-old man after stabbing his twenty-year-old wife to death when she confessed to having sex with another man during a six-month separation:

I told her how can you talk about love and marriage and you been fucking this other man. I was really mad. I went to the kitchen and got the knife. I went back to our room and asked: Were you serious when you told me that? She said yes. We fought on the bed. I was stabbing her. Her grandfather came up and tried to take the knife out of my hand. I told him to go and call the cops for me. I don’t know why I killed the woman. I loved her.4

Even though most such murders are committed by men, there are enough women who do so—and with equally moralistic motives—to constitute a sizable database. For example, case S483 in Buss’s study, a forty-three-year-old woman, thought about killing her forty-seven-year-old boyfriend:

I had this vision of putting poison in his food. My imagination started from the moment when he is back home, and went for his bath. I would put the dinner on the table and take out 2 separate bowls for the soup. One bowl of his will contain rat poison. Without suspicion he will finish the soup. Then I visualize him suffering stomach pain, then white bubbles come out of his mouth, and the next thing he collapses.5

Case P96, a nineteen-year-old woman, wanted her ex-boyfriend dead after a series of events over the course of their year-and-a-half relationship:

The things he did to make me think about killing him were as follows: try to control who I saw, what I did, where I went, when I went. He tried to control every aspect of my life once we came to college together. He would say mean things, call me names, make me feel worthless or like I couldn’t find anyone else.… There were two main events that triggered my thoughts—1) he got in a huge fight with my mom, 2) he called me a whore.6

Buss’s point in recording the motives behind these cutthroat fantasies is to confirm the fact that most murders are moralistic in nature. In the mind of the fantasist or the perpetrator, at the time of the murder the victim deserved to die. Over the course of history there have undoubtedly been incalculable instances of abuse so violent that a violent reaction was called for; thus a case can be made that we evolved the capacity for such murderous retaliation out of self-defense. If you do nothing to defend yourself, the bully, abuser, or murderer gets away with it, thereby setting up a self-perpetuating system of brutality as a means to an end. Victims who fight back put the perpetrator (and bystanders) on notice that violence will be met with violence. For example, Buss cites the case of an Australian man named Don who was killed by his wife, Sue, after fourteen years of an abusive marriage:

Don had also become quite abusive, verbally and physically. The latter included many types of humiliation, and being hit across the head regularly, being threatened with death, being locked in a closet, and being forced to sit looking in a mirror while Don made derogatory comments about her. On the night of the killing, Don held a knife to Sue’s throat while threatening to kill her. He had also both locked her in a closet and urinated in her face. Later that night, after Don had gone to sleep … Sue struck him with an axe to the side of the neck about three times. She then stabbed him in the stomach about six times with a large carving knife.7

Is there anyone—aside from Don—who would not read this account with some sympathy and understanding for Sue? If someone hit me on the head, humiliated and derided me, locked me in a closet, urinated in my face, and threatened to kill me—or did this to someone I loved—I can easily imagine myself swinging that axe with my sense of moral righteousness dialed up to eleven. Moral righteousness appears to be what a woman named Susan felt when she responded aggressively to her abusive cocaine-addicted husband as he advanced on her with a hunting knife, screaming, “Die, bitch!” Susan kneed him in the groin and grabbed the knife—surely a rational response to a wigged-out maniac. At her trial she said, “I was terrified because he was gonna kill me. I knew the second that I stopped he was gonna get the knife back and then I was gonna be the one that would be dead.”

However, once she got started, Susan found that she couldn’t stop stabbing her husband, a phenomenon that the sociologist Randall Collins calls “confrontational tension.” This kind of exorbitant, rising psychological pressure can lead to a “tunnel of violence,” and in its most extreme expression a “forward panic”—an explosion of rage and anger that is released through aggression and violence, as in the beating of Rodney King by Los Angeles police officers who appeared on the bystander’s grainy video like a pack of wolves ripping apart their prey.8 While lost in her tunnel of forward panic violence, Susan stabbed her husband 193 times. “I stabbed him in the head and I stabbed him in the neck and I stabbed him in the chest and I stabbed him in the stomach, and I stabbed him in the leg for all the times he kicked me, and I stabbed him in the penis for all the times he made me have sex when I didn’t want to.”9

Such revenge emotions are common enough that authors and film directors count on them, as the postrape revenge scene in the film version of The Girl with the Dragon Tattoo demonstrates. As the main character, Lisbeth Salander, tasers her rapist, ties and gags him, and tattoos “I am a sadistic pig and a rapist” on his torso in giant letters, the audience in the theater in which I saw the film cheered loudly with righteous approval.

THE EVOLUTIONARY ORIGINS OF MORAL JUSTICE

Emotions evolved to direct behavior toward our own survival and flourishing, and specifically moral emotions (such as guilt, shame, empathy, contempt, vengeance, and remorse) evolved to guide our behavior in interaction with others. Anger leads us to strike out, fight back, and defend ourselves against predators, bullies, and abusers. Fear causes us to pull back, retreat, and escape from risks. Disgust directs us to push out, eject, and expel that which is bad for us, such as bodily excreta and other disease-carrying substances. Computing the odds of danger in any given situation often just takes too long. There is always the possibility that we may need to react instantly, and this is what emotions are “for” in an evolutionary sense.

We can track the evolution of the desire for justice through two lines of evidence: our primate cousins and our hunter-gatherer ancestors. We share a common ancestor with chimpanzees from a point about six million to seven million years ago, so we shall begin with the expression of the moral emotion of justice in chimps who, along with bonobos, are our closest living primate ancestors. In his book Chimpanzee Politics, the primatologist Frans de Waal describes behaviors that are clearly “direct payment for services rendered,” noting that, in general, “chimpanzee group life is like a market in power, sex, affection, support, intolerance and hostility.” As with humans, chimpanzees also show a dual system of reward and punishment, as de Waal notes, “The two basic rules are ‘one good turn deserves another’ and ‘an eye for an eye, a tooth for a tooth.’”10 In his follow-up study Peacemaking among Primates, de Waal records what happens after chimpanzees and other primates fight among themselves within their group—they make up. And they do so with a very humanlike hug or an arm-about-the-shoulder embrace.11 In Our Inner Ape de Waal explains the researcher’s procedure of waiting for a fight to happen between chimps, and then recording what they do next. “Bystanders often embrace and groom distressed parties.”12 Conciliation is the key to conflict resolution, and to grease the wheels of justice something must be done to make the peace—at least provisionally—so that everyone feels like they can go on living together without excessive resentment.

Bonobos—a type of chimpanzee known to be far more amorous than its chimp cousins and equidistant from humans on the branching tree of evolution—resolve conflicts with another human favorite, make-up sex, or at least lots of grooming and touching and petting. Anatomically, bonobos are more similar to that of our evolutionary ancestors the australopithecines, and compared to chimpanzees they practice more bipedalism, more face-to-face mating (missionary-style sex), more oral sex and tongue kissing, and have reduced limb and body proportions, smaller canines, consume a wider variety of foodstuffs, organize into larger group sizes, show less intragroup competition and aggression, and are closer to humans in levels of hormones that promote sociability and in brain regions that are associated with empathy.13

Making a broader argument for the evolutionary origin of such emotions, de Waal notes that such appeasing behavior is not restricted to chimpanzees and the other great apes, but also can be found among most social mammals: “Elephants are known to use their trunk and tusks to lift up weak or fallen comrades. They also utter reassurance rumbles to distressed juveniles. Dolphins have been known to save companions by biting through harpoon lines, hauling them out of tuna nets in which they got entangled, and supporting sick companions close to the surface so as to keep them from drowning.”

For a species of social animal to survive, individuals must have the cognitive tools and behavioral repertoire to resolve conflicts, keep the peace, and suppress their aggressive tendencies when they bubble up from below. And they do. Capuchin monkeys, for instance—a much smaller-brained and more evolutionarily distant cousin of humans—also display these same traits. In studies with both species, de Waal and his colleagues found that when two individuals work together on a task for which only one is rewarded with a desired food, if the reward recipient does not share that food with his task partner, the partner will refuse to participate in future tasks and will express emotions that are clearly meant to convey displeasure at the injustice. A peeved-off primate will show it by rattling his or her cage, throwing objects, and shrieking in anger.14

In an experiment conducted by the psychologist Sarah Brosnan, two capuchin monkeys were trained to exchange a granite stone for a cucumber slice, but then Brosnan introduced a devious injustice into the experiment by giving one monkey a grape instead of a cucumber. Monkeys prefer grapes to cucumbers because they’re sweet; thus the naturally evolved preference for sugary foods makes them more desirable. Under this condition, the slighted monkey who got the cucumber cooperated only 60 percent of the time, sometimes even refusing to take the cucumber slice altogether. In a third condition, Brosnan ramped up the sense of injustice even farther by giving only one of her capuchin subjects a grape without even requiring him to swap a granite stone for it. Under these terribly unfair conditions the snubbed monkey cooperated only 20 percent of the time, and in many instances became so agitated that the cucumber slice became a makeshift projectile, hurled out of the cage at the human experimenters.15 In a similar experiment at the University of Zürich with long-tailed macaques—another relatively small-brained primate cousin of ours—primatologists Marina Cords and Sylvie Thurnheer found that after two macaques had learned to cooperate with each other in a task that required both of their efforts in order to be rewarded with food, they were more likely to reconcile after a quarrel than those monkeys who had not learned to cooperate in the joint-effort task.16

So fairness and justice go hand in hand in the moral economy that trades in currencies such as food, grooming, conciliation, reciprocity, friendship, and alliances. De Waal discovered, for example, that chimps who have groomed one another are more likely to share food, and that capuchin monkeys tend to share food and grooming activities, and to conciliate more readily with those of their fellows with whom they’ve traded such currencies before.17 This is a literal example of the colloquial definition of reciprocal altruism—I’ll scratch your back if you’ll scratch mine. The ethologist Nicola Koyama and her colleagues at John Moores University in Liverpool discovered that chimps who groomed each other formed social alliances against other chimps. For example, if chimp A groomed chimp B, then chimp B would be more likely to support chimp A in a fight with others the next day. The researchers took this to mean that chimpanzees curry political favor through positive interactions with other chimpanzees in anticipation of a possible future need, even though they cannot articulate the exchange calculation through language in the same way that humans can.18

The research on primates supports the thesis of this book that we evolved the capacity to actually be moral animals—and not just give the appearance of being moral animals. It is not enough to fake being a good person because, if you act otherwise, in the long run your fellow group members may find you out. So you actually have to be a good person most of the time, by which I mean being pro-social, reciprocally altruistic, cooperative, and fair, and to do so in a way that feels good, feels right, and feels just.19 That is what the moral emotions give us—true and genuine morality even if we don’t always live up to our own or society’s moral standards. Without such moral emotions, our actions would be nothing more than a simple selfish moral calculation. And as de Waal notes, there is no evidence that nonhuman primates are calculating future payoffs for current kindnesses, so this fact strengthens my position because it means that they are doing so for an immediate reward of feeling good about helping others.20 So the moral emotions are a proxy for a moral calculation evolved through natural selection that leads us to assume not only that others of our group are really moral, but that we are as well. Morality is a real, biologically based phenomenon, and the desire for moral justice is as concrete an emotion as love.

These observations and experiments on conflict and resolution in primates are a window into our evolutionary past—emotional “fossils” that help to piece together what life might have been like in the environment of our ancient ancestry. The fact that both modern humans and present-day primates have a sense of fairness and justice points to a common response to unfairness and injustice that evolved in our distant past as a conflict-resolution tool, without which the members of such social species would be less likely to survive and flourish. If everyone only ever acted in their own self-interest with no concern for those around them in their band, the social community would disintegrate into anarchy and violence. We evolved emotions that lead us to care about the outcome of interactions with our fellow group members, most notably that these interactions and exchanges be fair. As Sarah Brosnan concludes from her studies on inequity in nonhuman primates, unequal social outcomes lead to antagonistic responses, and vice versa: “An aversion to inequity may promote beneficial cooperative interactions, because individuals who recognize that they are consistently getting less than a partner can look for another partner with whom to more successfully cooperate.”21 This leads to the natural selection of pro-social and cooperative behavior within groups and the selection of xenophobia and tribalism between groups, or more briefly, within-group amity and between-group enmity.

So the sense of justice evolved to deal with conflict resolution and to keep bullies, abusers, and murderers from overrunning a society and thereby decreasing the evolutionary fitness of everyone in the group, which otherwise could threaten extinction. There has to be some means of dealing with fellow group members who won’t play nice. Moralistic punishment is one such action driven by a desire for justice in an exchange, as when subjects in the ultimatum game rejected unfair offers with a sense of righteous injustice. The universal nature of moralistic punishment was found in studies that used the ultimatum game protocols all over the world, including in fifteen small-scale traditional societies. Compared to subjects in Western countries who typically propose and accept splits in the 50/50 to 70/30 range, interactions vary among small-scale traditional tribes, from a minimum of 26 percent for the Machiguenga tribe in Peru to a maximum of 58 percent for the Lamelara tribe in Indonesia. The variation appears to be associated with the primary occupation of the people, where those whose economies are large and more market-integrated tend to make fairer offers than those whose economies are at a more subsistence and less market-integrated level.22

In a comprehensive overview of the substantial literature on such experiments, the anthropologists Joseph Henrich, Robert Boyd, and their colleagues concluded that people everywhere in the world “care about fairness and reciprocity, are willing to change the distribution of material outcomes among others at a personal cost to themselves, and reward those who act in a pro-social manner while punishing those who do not, even when these actions are costly.”23 The anthropologists also noted that even though human cultures vary enormously, utilizing vastly different forms of social organization and institutions, kinship systems, and environmental conditions, there nevertheless remains a set of core features of our nature that have an evolutionary basis to them, including the fact that no human group consists of purely selfish individuals, and that all humans have a sense of fairness and justice.24

REVENGE AND JUSTICE AS DETERRENCE

The emotions driving the need for justice evolved for a number of good evolutionary reasons, one of which is to deter others from free riding, cheating, stealing, bullying, and murder. A perpetrator who is cognizant of the possibility of retribution may hesitate or even fail to act altogether, assuming that he (or, less likely, she) has the normal response of apprehension and fear of the threat of punishment. And for those who lack such sensitivities to the feelings of others—also known as psychopaths—brute force may be the only currency they understand. So an evolved sense of retributive justice is natural, and in many cases it may have been the only course of action available to our ancestors. Indeed, had we not evolved such emotions our Paleolithic ancestral tribes might have been overrun by toughs, bullies, and killers, and that might have spelled the doom of our species.

How human groups developed systems of justice is the subject of anthropologist Christopher Boehm’s enlightening—and in places shocking—book Moral Origins: The Evolution of Virtue, Altruism, and Shame.25 Boehm’s analysis is derived from a database that begins with 339 pure forager societies, then subtracts those that likely do not resemble our ancestors (mounted hunters, horticultural hunters, fur trade hunters, and sedentary-hierarchical hunters) to produce a working dataset of 50 Late Pleistocene Appropriate (LPA) societies from which to work. These are groups either still in existence today or groups that were studied within the past century by anthropologists, and who might reasonably be assumed to represent a close approximation to how our ancestors lived. These ethnographies, in conjunction with archaeological evidence, form the basis for theories on how our species lived before the rise of civilization.26

Boehm argues that moralistic punishment evolved, in part, to solve the problem of how altruism could evolve, and how these relatively equitable societies could be stable when free riders could game the system by taking more than they put in by, say, slacking off on a gathering expedition, hanging back during a dangerous hunt, or simply taking more than their fair share of food. Thus Boehm found that all of these societies had sanctions to deal with deviants, free riders, and bullies, which ranged from social pressure and criticism to shaming, ostracism, ejection from the group, and even—in extreme cases when nothing else worked—capital punishment. The sanctioning process begins with gossip as a private exchange of evaluative information about who is doing their fair share and who isn’t, who can be trusted and who cannot, who is a good and reliable member of the group and who is a slacker, cheater, liar, or worse. Gossip permits the group to form a consensus about the deviant that can lead to a collective decision about what to do about him (and it is almost always a male). Of course, the problem with hard-core bullies such as psychopaths is that they don’t care about being detected and talked about, so gossip also served as a means for subordinate band members to form coalitions based on the axiom that there is strength in numbers.

It’s surprising to hear the term “capital punishment” used in the context of hunter-gatherer societies, but the death penalty is sometimes used to preserve group harmony in the case of an intractable thug who refuses to bend to the rules or respond to lesser sanctions. In the fifty LPA societies studied, Boehm found that twenty-four of them practiced capital punishment for crimes such as malicious sorcery, repeated murder, tyrannical behavior, psychotic behavior, theft, cheating, incest, adultery, premarital sex, a taboo violation that endangers everyone in the group, betraying the group to outsiders, “serious or shocking transgressions,” and unspecified deviance. The total comes to 48 percent but is probably higher because capital punishment is notoriously underreported in ethnographies, since it is generally hidden from snooping anthropologists—these modern hunter-gatherer societies know that execution is prohibited by the colonial administrators in their region, so they prudently hide it from outsiders. Figure 11-1 shows the accounting of crimes and sins and their accompanying punishments from Boehm’s database of traditional societies.

Figure 11-1. Crimes and Sins in Traditional Societies

The anthropologist Christopher Boehm has compiled a database of crimes and sins in traditional societies that result in punishments ranging from shunning to capital punishment.27

Boehm cites a gruesome example of an execution recorded by the anthropologist Richard Lee in his study of the!Kung Bushmen of Africa. The account involves a bully and murderer named /Twi, who had killed at least two people and for whom the group had decided that execution was the only solution. Lee interviewed /Twi’s father, mother, sister, and brother. “All agreed he was a dangerous man. Possibly he was psychotic.” The account also shows, sans modern effective weaponry, how difficult it can be to kill another human being who fights back, and the power of the collective to overcome even the strongest adversary. (Diacritical symbols represent the various phonemic “clicks” in the Bushmen dialect):

It was Xashe who attacked /Twi first. He ambushed him near the camp and shot a poisoned arrow into his hip. They grappled hand to hand, and /Twi had him down and was reaching for his knife when /Xashe’s wife’s mother grabbed /Twi from behind and yelled to /Xashe, “Run away! This man will kill everyone!?” And /Xashe ran away.

/Twi pulled the arrow out of his hip and went back to his hut, where he sat down. Then some people gathered and tried to help him by cutting and sucking out poison. /Twi said, “This poison is killing me. I want to piss.” But instead of pissing, he deceived the people, grabbed a spear, and flailed out with it, stabbing a woman named //Kushe in the mouth, ripping open her cheek. When //Kushe’s husband N!eishi came to her aid, /Twi deceived him too and shot him with a poisoned arrow in the back as he dodged. And N!eishi fell down.

Now everyone took cover, and others shot at /Twi, and no one came to his aid because all those people had decided he had to die. But he still chased after some, firing arrows, but he didn’t hit any more.

Then he returned to the village and sat in the middle. The others crept back to the edge of the village and kept under cover. /Twi called out, “Hey are you all still afraid of me? Well I am finished, I have no more breath. Come here and kill me. Do you fear my weapons? Here I am putting them out of reach. I won’t touch them. Come kill me.”

Then they all fired on him with poisoned arrows till he looked like a porcupine. Then he lay flat. All approached him, men and women, and stabbed his body with spears even after he was dead.28

Anthropologists have documented many forms of disruptive behavior, which Boehm roughly separates into two categories: intimidation and deception. Intimidation includes murder, sorcery, physical violence, and bullying. Deception includes stealing, the failure to share, lying, and cheating. Of the fifty societies in the database, 100 percent reported murder, sorcery, and stealing; 90 percent said people had failed to share; 80 percent had experienced physical violence; 70 percent had bullying as a problem; 60 percent said liars were among them, and 50 percent reported cheating. All of these behaviors generated gossip in the community, which led to group decisions concerning appropriate punishments.

These traditional societies also distinguish between reversible and irreversible sanctioning of deviants. Reversible sanctions are used when the group wants to be rid of an antisocial behavior but not of the perpetrator because he is an otherwise useful member of the group. Irreversible sanctions occur in the form of either permanent expulsion (which often means death by starvation or murder by another tribe) or execution, the latter only after reversible sanctions have failed or when a bully has proven to be a serious threat to the group.

In an evolutionary context, free riders and cheaters who respond to sanctions maintain their genetic fitness and pass on their genes for modest levels of free riding and cheating, which is what we see in all societies today. Of course, as in all human traits, bullying, free riding, and cheating are results of both genes and environment in interaction, so we are talking about propensities and probabilities here. In a world in which modest free riding happens—often deceptively, making detection difficult—we evolved cheater detection tools and the propensity to gossip about those whom we think might be trying to deceive us and cheat the system. Adding it all up, Boehm concludes that “what we have is a system of social control that can drastically reduce the genetic fitness of more driven free riders whose consciences can’t keep these dangerous traits under control, but that allows the more ‘moderate,’ would-be free riders to control themselves in matters that would otherwise bring punishment and still express their competitive tendencies in ways that are socially acceptable. It’s for this reason that free riders haven’t just gone away.”29

So an evolutionary arms race has left us with cheaters and cheating detection, free riding and free riding deterrence, bullies and bullying punishment. Out of this arms race evolved another feature of the human mind—a moral conscience—that acts as the “inner voice” of self-control. Because social sanctions allow for individuals to reform their bad behavior (before the ultimate form of punishment—banishment or execution—is employed), conscious self-awareness of one’s actions allowed for adjustments to be made of one’s behavior. “It was earlier types of social control that caused a conscience to evolve, and it’s an evolved conscience that makes individuals so adept at this important type of self-inhibition,” Boehm writes. Why, then, are there still modern hunter-gatherers being executed, banished, ostracized, and shamed by their groups for free riding? Because, says Boehm, “they hope they can get away with it.”30 In the long run, however, most don’t, but it’s a long enough run that they manage to reproduce in the meantime so their genes for such cheating and free riding have made their way to modern humans.

Fortunately our individual consciences are malleable and respond to social cues, approval, opprobrium, and punishments. It is the force of this ever-expanding conscience, working in concert with reason, that has been behind the historical development of criminal justice in the West.

LADY JUSTICE: FROM THE WILD WEST TO THE MODERN WEST

In the long history of civilization, self-help justice conducted by individuals has gradually been replaced with criminal justice conducted by the state. The former leads to higher rates of violence than the latter, due to the lack of an objective third party to oversee the process. States, for all their faults, have more checks and balances than individuals. This is why Justitia—the Roman goddess of justice—is often depicted wearing a blindfold, symbolizing blind justice and impartiality; in her left hand she carries a scale on which to weigh the evidence, a symbol for a balanced outcome, and in her right hand she wields the double-edged sword of reason and justice, symbolizing her power to enforce the law. Of course, it is not an either-or situation—nonstate vs. state justice systems; it is, rather, a sliding scale from small communities with no central authority or independent judicial system, to chiefdoms in which a single authority (the chief, or “big man”) resolves conflicts, to small and weak states where individuals employ self-help justice when they feel the state’s justice system has failed them, to large and strong states with relatively effective judicial systems, to totalitarian states where justice is whatever the authorities (or autocrat) say it is.

The modern West’s system of criminal justice was a big improvement over the medieval system of torturing first and asking questions later. In the eighteenth century, scholars such as Jeremy Bentham and Cesare Beccaria—the criminal justice reformer we met in chapter 1—made the case that “the punishment should fit the crime,” with the overall goal of “the greatest happiness of the greatest number” as the calculus for justice.31 As Beccaria argued in his 1764 work On Crimes and Punishments: “It is not only the common interest of mankind that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.”32

The goal of modern Western judicial systems is to prevent citizens of a nation from using force and committing violence against one another when disputes arise. When citizens undertake self-help justice it is a net loss to the state, since it often escalates into endless cycles of violence. Today this is conducted through two justice systems: criminal and civil. Criminal justice deals with crimes against the laws of the land that are punishable only by the state. Civil justice deals with disputes between individuals or groups, such as contract violations, property damage, or bodily injury, and the court’s say is final in determining right and wrong and appropriate damages. Criminal justice involves mostly retribution. Civil justice involves both retribution and restoration (through assessed damages). For both forms of justice, states claim a monopoly on the legitimate use of force, with the goal of deterring future crimes against citizens of the society. This is why criminal cases are labeled The State v. John Doe or The People v. Jane Roe. The state becomes the injured party. My home state of California, for example, continues to pursue charges against the filmmaker Roman Polanski for raping an underage girl in 1977, even though she—now a woman in her forties—has forgiven him and has requested that the state drop the charges, and even though Polanski lives in Switzerland and has no intention of ever returning to the United States.

This is why in areas of Western nations where citizens do not feel that the law is fair to them—as in parts of the United States where the police and courts are perceived to be racist—people often take the law into their own hands. This is why it is called “self-help justice,” or sometimes “frontier justice,” or plain old “vigilantism.” Take the case of violence in inner cities, where crime rates are much higher than elsewhere. The primary reason for this violence is gang-related illegal drug trafficking. When a product that people want is made illegal, it does not necessarily eliminate the desire for the product; instead it shifts the economic transaction from a lawful free market to an unlawful black market—think alcohol during Prohibition, or drugs today. Because drug dealers cannot turn to the state to settle disputes with other drug dealers, self-help justice is their only option. As such, criminal gangs emerge (most famously the Mafia) that enforce a different sort of criminal justice.33

Occasionally conditions arise in which ordinary citizens feel pressed to take the law into their own hands, as Bernhard Goetz did on December 22, 1984, when four young men approached him on a New York City subway car in what he perceived to be a threatening manner. At the time of this incident, New York City was in the throes of one of the biggest crime waves in American history, having seen its rate of violent crime skyrocket nearly fourfold from 325 to 1,100 per 100,000 people in only a decade. In fact, three years prior to this incident, three young men had robbed Goetz of some electronic equipment and then tossed him through a plate-glass door. One of his attackers was caught, but was charged only with criminal mischief for ripping Goetz’s jacket and was released from the police station even sooner than Goetz was. The criminal went on to mug again, leaving Goetz skeptical of the criminal justice system and the police’s capacity to protect him from harm. So to protect himself, Goetz purchased a Smith & Wesson .38-caliber handgun.

On that fateful night in 1984, the four young men boarded the subway car carrying screwdrivers, intent (they later said) on knocking off video arcade machines in Manhattan. When Goetz attempted to exit the subway train, they surrounded him and demanded money. (In their trial they claimed that they had only been “panhandling” and had merely “asked” for the money instead of demanding it.) Given his prior experience, his awareness of the crime wave, and the gun in his pocket, Goetz was conditioned for confrontation. He shot the men and exited the train.

Not long afterward, Goetz became known as the “Subway Vigilante” and was the topic of a national debate on crime and vigilantism. In response, and to show that it would not tolerate a return to the Wild West form of vigilante justice, the state criminal justice system came down hard on Goetz, charging him with four counts of attempted murder, four counts of reckless endangerment, and one count of criminal possession of a weapon. Living in what was essentially a lawless subsection of a civil society—New York City subways—Goetz reacted, in his own words, like an animal. “People are looking for a hero or they are looking for a villain. And neither is the truth. What you have here is nothing more than a vicious rat. That’s all it is. It’s not Clint Eastwood. It’s not taking the law in your own hands. You can label that. It’s not being judge, jury and executioner.”34

In a civilized society, in fact, it is the state’s duty to provide judge, jury, and executioner, but the public disagreed, most siding with Goetz, and several groups established legal defense funds on his behalf. In his criminal trial he was acquitted of the attempted murder charges but served eight months for carrying a loaded but unlicensed weapon in a public place.35 As Goetz reflected: “What happens to me at this point is unimportant. I’m just one person. This has at least raised issues in New York. One thing I can do to show the legal system what I think of it.”36

Why do people in civilized societies with justice systems and police forces nevertheless choose not to work within the law? The sociologist Donald Black attempted to answer this question in an article titled “Crime as Social Control,” in which he takes the well-known statistic that only 10 percent of homicides belong in the category of predatory or instrumental violence, arguing that most homicides are moralistic in nature. Most murders, for example, are a form of capital punishment in which murderers are judge, jury, and executioner over a victim they perceive to have wronged them in some manner deserving of the death penalty. Black provides examples that are as common as they are disturbing: “a young man killed his brother during a heated discussion about the latter’s sexual advances toward his younger sisters,” another man who “killed his wife after she ‘dared’ him to do so during an argument about which of several bills they should pay,” a woman who “killed her husband during a quarrel in which the man struck her daughter (his stepdaughter),” another woman who “killed her 21-year-old son because he had been ‘fooling around with homosexuals and drugs,’” and several involving disputes over automobile parking spots.37 Most violence, in fact, is a form of moralistic punishment.

RETRIBUTIVE JUSTICE AND RESTORATIVE JUSTICE

The theory of justice that considers proportionate punishment to be the most effective means of deterring crime is called retributive justice. In the context of the evolutionary origins of human emotions, retributive justice is based on the completely understandable desire for fair play. We feel, instinctively, that if people commit crimes it’s only right that they get their just deserts. No one should be allowed to get away with murder—or with rape, burglary, embezzlement, kidnapping, or driving with fewer than two vehicular occupants in an HOV lane. We feel that if we can’t take hostages or park on the steps of the Lincoln Memorial, no one else should be allowed to; and if anyone does get away with these things, our moral emotions go into overdrive and we naturally want to see justice served—unless, of course, we identify with the antihero of a story, say, and then we actively want to see Ferris Bueller get away with skipping school.

The criminal justice system as practiced by most modern societies evolved over centuries primarily under the rubric of retributive justice. And for good reason—to keep the peace and maintain a relatively smoothly functioning society, a state must maintain a monopoly on the legitimate use of force and do so through the enforcement of the law by punishing the rule breakers. However, complementary to retributive justice is restorative justice (also called reparative justice), in which the perpetrator (which might be an individual or even a nation) apologizes for the crime; attempts to set to rights the situation; and, ideally, initiates or restores good relations with the victim. Retributive justice is more emotionally driven and comes from a desire for revenge (though retribution should be distinguished from vengeance), while restorative justice is more reason-driven and grows out of the necessity to get along with our fellow group members after a crime occurs.

In the past couple of decades a restorative justice movement has been building on the foundation developed first in New Zealand and based on the indigenous Maori society’s method of justice, which focuses on repair instead of punishment (captured in the Maori proverb “let shame be the punishment”). In New Zealand in the 1980s there was a crime wave sweeping through the society—as there was in most Western nations—and thousands of young people, including and especially Maori children and teenagers, were caught in the nets of law enforcement and put into foster homes or institutions. Despite New Zealand’s having one of the highest juvenile incarceration rates in the world, its crime rate remained high; clearly the criminal justice system just wasn’t working. Maori leaders responded by explaining how in their tradition instead of condemnation and incarceration they focused on problem solving and damage repair.

In 1989 landmark legislation was passed in the form of the Children, Young Persons, and Their Families Act, which revamped the focus and process of juvenile justice and which led to the development of Family Group Conferences (FGC), used either in addition to or instead of court, primarily focusing on the rehabilitation of troubled youths. “Organized and led by a Youth Justice Coordinator, a facilitator who is a social services professional, this approach is designed to support offenders as they take responsibility and change their behavior, to empower the offenders’ families to play an important role in this process, and to address the victims’ needs,” explain Allan MacRae and Howard Zehr, pioneers of this system.38 In the past two decades there have been more than one hundred thousand FGCs, with high rates of victim satisfaction reported. New Zealand’s Ministry of Justice recorded a 17 percent reduction in imprisonment, a 9 percent decrease in recidivism measured after two years, and a 50 percent reduction in the seriousness of offenses where participants did reoffend.39

New Zealand politicians are also recognizing both the moral and the cost benefits to restorative justice programs. New Zealand’s minister of finance, for example, called the country’s prison system a “moral and fiscal failure,” adding that prisons are “the fastest rising cost in government in the last decade and my view is that we shouldn’t build any more of them.” New Zealand District Court judge Fred McElrea, after applying the principles of restorative justice for twenty years, concluded, “For those seeking a more satisfying, less damaging, and cheaper form of justice, the way forward, in my view, is clear. It is not suitable in all cases, but with some principled support and seed funding, restorative justice could easily change the landscape of the criminal justice system in most common law jurisdictions.”40

A study comparing two teenagers—one from the United States and the other from New Zealand, who each killed their abusive fathers—is highly instructive. The teen from the United States ended up in prison with a sentence of twenty-two years to life, while the teen from New Zealand (now age twenty-two), after going through New Zealand’s special court for minors and the Family Group Conference, earned an education and ended up working for New Zealand’s forest service as a free, contributing member of society.41 Allan MacRae recounts another case that he mediated involving a young refugee who had come to New Zealand with his grandmother and an aunt. They had no money and survived on a tiny benefit from the New Zealand government that barely covered food and housing. In desperation, the young man assaulted his grandmother and stole their rent money for his own use. His aunt turned him in to the police, but instead of incarcerating him they referred the case to MacRae for an FGC, who set up a meeting with all affected parties, which unfolded as follows:

The Conference started with a prayer in their native language, and all parties used interpreters to ensure full understanding. The grandmother told her story in much detail, as did the young person. As the young person began to understand the impact he was having on his grandmother, tears came to his eyes. The young man eventually told of his life in a refugee camp before the three arrived in New Zealand, what he had to do to survive, and how in his new community he felt he could not mix with others if he did not have money. Clearly, loneliness, anger, and hurt were shared by both the young man and his grandmother.

The young person agreed to pay back in full all the money he had stolen, and he was given help in finding part-time employment. He could not live with his grandmother until she felt safe being around him, and he was assigned a mentor from his own culture to help him complete his community work and attend school. “The plan was successful,” MacRae writes. “The young man did no further offending, and he completed all his outcomes. Most valuable of all, both he and his grandmother found new friends and support that stayed with them, well beyond the Family Group Conference plan, and assisted them in starting their new lives in New Zealand.”42

According to Howard Zehr—one of the innovators of the movement—restorative justice is not just about forgiveness or reconciliation (although that is a positive by-product enjoyed by many who have tried it); instead, it begins with an acknowledgment by the wrongdoer, who must take some level of responsibility for the offense, and builds from there to include the victims’ losses and a plan for restoration. The stakeholders in restorative justice include the victims, their families, and the community affected by the crime. Restorative justice is meant to be a complement to retributive justice, not a replacement of it.

The problem with the criminal justice system is that crime is defined as being against the state, which often leaves the actual victims of a crime out of the loop. Recall the highly publicized criminal trial of O. J. Simpson for the murder of his wife, Nicole Brown Simpson, and her friend Ronald Goldman. O. J. was found not guilty (as in Johnny Cochran’s memorable line “if the glove doesn’t fit, you must acquit”), but even if the glove had fit and he’d been found guilty and sent to jail, the families of the victims would have received no compensation from either the Simpson estate or the state that tried him (California). For a modicum of restorative justice, the families had to file a lawsuit against Simpson, and in a less-publicized civil trial, O. J. was found guilty of wrongful death and battery and was ordered to pay the families $33.5 million in compensation. Naturally, in such an adversarial system, Simpson did what he could to hide assets and avoid payment. The Goldman family managed to collect a measly $500,000 from the sale of Simpson’s Heisman Trophy and other personal belongings,43 and they have pursued other avenues of collection of monies he earned from signing autographs and the sale of memorabilia.44

Since it is based primarily on retribution, the criminal justice system neglects the needs of victims in at least four areas that Zehr says must be addressed for a restorative system to work: (1) Information. Victims want to know the deeper reason for a crime—the intent by the perpetrator—and this can only come from looking into his eyes and listening to his voice with facial expressions and body language. (2) Truth telling. Victims feel the need to tell perpetrators how the criminal acts affected them. This is occasionally done at the end of a criminal trial when the victims or their families can face him and have their say just before the perpetrator is sent out of the room in handcuffs. (3) Empowerment. “Victims often feel like control has been taken away from them by the offense—control over their property, their body, their emotions, their dreams.” In the criminal justice system the victims have next to no control or power, since by definition the state has taken on that role. (4) Restitution or vindication. “Restitution by offenders is often important to victims, sometimes because of the actual losses but just as importantly, because of the symbolic statement implied. When an offender makes an effort to correct the harm, even if only partially, it is a way of saying, ‘I am taking responsibility, and you are not to blame.’”45

In the criminal justice system, not only are these four areas neglected, but also the adversarial nature of the legal process encourages offenders to keep their mouths shut, “lawyer-up,” “take the Fifth,” never acknowledge any wrongdoing, and plead guilty only if their attorney can plea-bargain them to a better outcome or spare them a death sentence. And punishment is not accountability. What pleasure a victim may get from the punishment meted out to the offender fades when the losses from the crime remain unrestored. For restorative justice to work, offenders need to acknowledge their wrongdoing and be held accountable for the losses sustained by their victims. In short, the retributive justice system is focused on what offenders deserve, whereas restorative justice is concerned about what victims need; retributive justice is about what was done wrong, whereas restorative justice is about making it right; retributive justice is offender-oriented, whereas restorative justice is victim-oriented.

Let’s look more closely at how restorative justice has been practiced around the world, starting with a traditional society in Papua New Guinea.

TOK-SORI—RESTORATIVE JUSTICE IN TRADITIONAL SOCIETIES

In his epic work The World Until Yesterday, the evolutionary biologist Jared Diamond recounts his experiences living among traditional societies in Papua New Guinea, drawing from those experiences lessons for how we can improve our own society. In his discussion of how justice is handled among these communities, Diamond tells the story of a Papua New Guinean man named Malo, who accidentally struck and killed a young boy named Billy on a small-town road. It was an accident. Billy had darted behind the school bus he’d just exited, which blinded Malo to the boy’s presence until it was too late. Billy suddenly bolted across the road in front of the bus to meet his uncle, and Malo could not stop his bus in time. Instead of waiting for the police to arrive, as we would do in the West (unless we want a hit-and-run conviction), Malo beat a hasty retreat because, as Diamond explains, “angry bystanders are likely to drag the offending driver from his car and beat him to death on the spot, even if the accident was the fault not of the driver but of the pedestrian.”

Heightening tensions was the fact that Malo and Billy were from different ethnic groups (Malo was local but Billy was from the lowlands), which, according to Diamond, elevated emotions: “If Malo had stopped and gotten out to help the boy, he might well have been killed by lowlander bystanders, and possibly his passengers would have been dragged out and killed as well. But Malo had the presence of mind to drive to the local police station and surrender himself. The police locked up the passengers temporarily at the station for their own safety, and escorted Malo for his safety back to his village, where he proceeded to remain for the next several months.” What happened next, Diamond says, “illustrates how New Guineans, like many other traditional peoples living largely outside the effective control of systems of justice established by state governments, nevertheless achieve justice and peacefully resolve disputes by traditional mechanisms of their own. Such mechanisms of dispute resolution probably operated throughout human prehistory, until the rise of states with their codified laws, courts, judges, and police beginning 5500 years ago.”46

The key to restorative justice, says Diamond, is compensation. Not all wrongs can be made right through compensation, of course—death being the ultimate example—so in this case what Papua New Guineans mean by compensation is “sorry money,” or payment made to the victim’s family out of a deep sense of sorrow by the perpetrator. “The goal of traditional New Guinea mechanisms of justice is fundamentally different from that of state justice systems,” Diamond explains. “While I agree that state justice offers big advantages and is absolutely essential for resolving many disputes between citizens of states, especially disputes between strangers, I now feel that traditional justice mechanisms have much to teach us when the disputants are not strangers but will remain locked in on-going relationships after the dispute’s settlement: e.g., neighbors, people connected by a business relationship, divorcing parents of children, and siblings disputing an inheritance.”47 For several days Malo laid low, full of dread, as he anticipated the grim fallout from the accident. What happened next was remarkable. Three large men appeared at Malo’s window, including the father of the deceased boy, Peti. Malo didn’t know whether to face them or run. Running could result in the death of his family, so he let the men in. Diamond picks up the story there, as it was related to him by a man named Gideon, who was the office manager of the company that employed Malo and witnessed what happened next:

For a man whose son had just been killed, and who was now confronting the killer’s employer, Peti’s behavior was impressive: clearly still in a state of shock, but calm respectful, and direct. Peti sat quietly for some time, and finally said to Gideon, “We understand that this was an accident, and that you didn’t do it intentionally. We don’t want to make any problems. We just want your help with the funeral. We ask of you a little money and food, in order to feed our relatives at the ceremony.” Gideon responded by offering his sympathies on behalf of his company and its staff, and by making some vague commitment. Immediately that afternoon, he went to the local supermarket to start buying the standard food items of rice, tinned meat, sugar, and coffee.

So far so good, but there was still the matter of Billy’s extended family, who would certainly be feeling the sting of Billy’s death and might well seek retribution. Gideon thought Malo should go to them straightaway and offer an apology, but a senior member of the company, a man named Yaghean, who had experience in negotiating compensations, advised otherwise. “If you yourself, Gideon, go there too soon, I’m concerned that the extended family and the whole lowlander community may still have hot tempers. We should instead go through the proper compensation process. We’ll send an emissary, and that will be me. I’ll talk to the councilor for the ward that includes the lowlander settlement, and he in turn will talk to the lowlander community. Both he and I know how the compensation process should proceed. Only after the process has been completed can you and your staff have a say-sorry [tok-sori in Tok Pisin] ceremony with the family.”

A meeting was arranged for the next day, and even though emotions were still running high, Yaghean was assured there would be no violence. Yaghean then negotiated a compensation payment of 1,000 kina (about $300) from the company to the family. Malo also arranged to give to the victim’s family a pig as another form of compensation called bel kol, or “cooling the belly,” intended to attenuate feelings of revenge. The next day the compensatory process began when all parties concerned met together in a tent on the grounds of the victim’s family home. Diamond narrates the rest of the ceremony:

The ceremony began with an uncle speaking, to thank the visitors for coming, and to say how sad it was that Billy had died. Then Gideon, Yaghean, and other office staff talked. In describing the event to me, Gideon explained, “It felt awful, just awful, to have to give that talk. I was crying. At that time, I, too, had young children. I told the family that I was trying to imagine their level of grief. I said that I was trying to grasp it by supposing the accident to have happened instead to my own son. Their grief must have been unimaginable. I told them that the food and the money that I was giving them were nothing, mere rubbish, compared to the life of their child.” … Billy’s mother sat quietly behind the father as he spoke. A few others of Billy’s uncles stood up and reiterated, “You people won’t have any problems with us, we are satisfied with your response and with the compensation.” Everybody—my colleagues and I, and Billy’s whole family—was crying.48

After this the families exchanged food and ate … in peace. It worked, not because the perpetrators paid compensatory money and food to the victim’s family (although that helped), but because the perpetrators deeply and genuinely felt and acknowledged the pain of the victim’s family.

What if Billy’s death was not an accident and Malo had intentionally killed him? As Diamond’s interlocutors explained, in that case the compensation would have been much higher (10,000 kina instead of 1,000) and a lot more food exchanged, and if this—in conjunction with the appropriate tears of genuine remorse—did not satisfy, it could very well have degenerated into a payback killing. Likely Malo would have been targeted, but, if not he, then a close relative. This in turn could have led to a revenge killing for the payback killing, which may then have escalated into a generations-long feud, with the two sides raiding and murdering each other, possibly resulting, ultimately, in an all-out war.

TAMING THE WOOLF WITHIN—RESTORATIVE JUSTICE IN MODERN SOCIETIES

Such meetings between perpetrators and victims are exercises in the application of the principle of interchangeable perspectives, as each can see the crime through the eyes of the other. Consider two men named Peter Woolf and Will Riley—burglar and burgled, respectively. Woolf was a career criminal from Norfolk, England, with a drug habit that led him to theft to feed his addiction. Riley walked in on Woolf raiding his home one day, resulting in a physical struggle in which the two ended up in the street, leaving Riley traumatized and Woolf apprehended and sent to prison. When given the opportunity to confront Woolf, Riley sat across a table and unleashed upon him not hate but an impassioned explanation of how Woolf’s break-in had utterly traumatized him. As he told Woolf, “You broke into my house. You destroyed my one belief that I had in my ability to protect my family, my house, from people like you, and you did it in one fell swoop.” Riley went on to explain that every time he came home and turned the key in the door, his mind was flooded with fears that a criminal was on the other side.

In response, Woolf recounted, “A flood of emotions started coming out. When you hear the harm you have caused, you’ve got to be a very very bitter and twisted human being if this doesn’t affect you—you’ve got to be a sicko. I was fully expecting these people I did a lot of harm to, to say ‘lock him up … and throw away the key, we don’t care.’” That was not how Riley responded. Instead he said of Woolf: “He was genuinely—genuinely—affected by what we’d said. And we start conversing and Peter starts talking from his heart, from his real core of his existence.” Thus, Riley concluded about Woolf’s incarceration: “You can’t just leave him there. You’ve got to help him help himself.” Woolf did get the help he needed, and he has been out of prison since 2003 and has not reoffended. He went on to pen an autobiography in 2008—appropriately titled The Damage Done—and toured prisons giving victim-awareness training to inmates. For his part, Riley founded Why Me?, an organization set up by victims who have benefited from such programs.49 The reason this meeting worked is that Woolf was genuine in his emotional contrition. “Here was a man showing remorse,” Riley explained, “not because his lawyer told him ‘you’ve got to show remorse in order to get time off.’” Later he reflected:

Now, six years later, it’s clear the meeting wasn’t simply about Peter, but had a huge impact on me too. Talking is the only way forward. People who don’t talk (which is the majority of victims) are delaying and even maintaining the pain. Luckily, Peter and I are still talking. He’s a great man, very clever, has a lovely sense of humour, a genuine raw presence and I’m hugely fortunate to be able to count him as a friend.50

Victim restoration is just the beginning. In this case, not only did both offender and offended profit from the exchange, but the community did as well as it led to other such meetings. In all, the program that brought Woolf and Riley together has an 85 percent victim satisfaction rate, and 78 percent of them said that they would recommend it to other victims and offenders.51 Another of the benefits can be clearly seen in this pair of statistics: two-thirds of convicts leaving prison are reconvicted within two years, but with the restorative justice program in place, rates of reoffending plummeted by half.52 Is this moral progress? Is reducing recidivism rates by 50 percent in a community good for the people who reside there? In light of the data, the question answers itself.

Restorative justice can even work with homicide, as evidenced by the case of a twenty-one-year-old from Wyoming named Clint Haskins, who, in September 2001, while driving so drunk he couldn’t even remember what had happened, plowed into a vehicle carrying eight members of a student cross-country running team, killing them all. One of those who died was Morgan McLeland. At the sentencing of Haskins—who pleaded guilty to all eight counts of homicide so he could serve his thirteen-to-twenty-year sentence for each concurrently instead of consecutively—the other families of the victims read impact statements in protest, preferring that Haskins be locked away for 104 to 160 years. But Morgan’s mom, Debbie, offered a challenge to Clint instead:

Across the court I asked him if he would be willing to come with me and address young people about the dangers of drunk-driving. When he had an opportunity to speak, he said he would like to. Finally, three years later, after a lot of hard work, I got to see Clint. I found him to be very subdued and remorseful. We both cried and I hugged him, and then we talked about what we could do together to help people make better decisions about drinking and driving. I believed in his sincerity. We first spoke to a room of 900 young people at the National Rodeo High School Finals in Gillette, where Clint had been a rodeo cowboy. It was enormously effective. Later we spoke at the University of Wyoming where all eight of the dead, and Clint, had been students. There was some opposition to this event, as some of the families didn’t agree with what we were doing. I still feel bad about that. We’ve all had a lot of pain and I don’t want to add to it. But I also truly believe that our presentations can save lives.53

Those other parents’ desire for retribution is totally understandable, but as Debbie McLeland reflected: “I wanted to go to court for justice—not revenge,” adding, “Hate is a large burden to carry.” Instead, she mustered up the courage and character to forgive Haskins and turn the tragedy into something constructive. “Some people think that forgiveness is being disloyal to your loved one; that the only way to honour and remember them is to keep anger and bitterness in your heart, because negative emotion is so much more intense. But that doesn’t work for me.… Forgiving Clint seems a logical step to me, as this tragic experience is something we both share.”54

Debbie McLeland thinks that forgiveness is logical, and she’s right. Forgiveness, in the sense of letting go of retribution fantasies, moving on, and trying to make something positive come from the tragedy, is the rational approach given the right set of circumstances, which includes genuine and heartfelt contrition by the offender and an honest attempt at righting the wrong.

THE POWER OF FORGIVENESS

On the night of July 29, 1984, in Burlington, North Carolina, a twenty-two-year-old college student named Jennifer Thompson was held at knifepoint and raped. Despite the emotional trauma of the event, as it was unfolding Thompson focused intently on the details of her rapist’s face so that one day justice would be served on him. “I’m going to get this guy who did this to me,” she told police investigators, who presented her with a photo lineup of suspects. She pointed to a black man named Ronald Cotton as her rapist. He was brought into the station and lined up with others for Thompson to scan through a one-way mirror. Once again she fingered Cotton. In court, Thompson was asked if she was certain that the man on trial was her rapist. She replied that she was 100 percent certain that Cotton was the perpetrator. After only forty minutes of deliberation, the jury agreed and convicted Cotton. He was handcuffed, shackled, and sent to prison for life.

You might well be thinking that this is a heartwarming, true-life tale in which a rape victim learns to forgive the man who raped her—but no. Jennifer Thompson never forgave Ronald Cotton because, as it turned out, there was nothing to forgive. If there was to be any forgiveness, it would be coming from Ronald Cotton because, in her absolute and unwavering certainty, Jennifer Thompson had accused the wrong man.

Three years later, a new prisoner, named Bobby Poole, who looked an awful lot like Cotton, was incarcerated for rape. In time, and in conversation with Poole in the prison yard, Cotton figured out what had happened and won a new trial in which Jennifer Thompson faced her real rapist for the first time. Instead of identifying Poole and setting free the wrongly convicted Cotton, when she was confronted by the original investigator on the case, Thompson said she thought, “how dare you question me, how dare you paint me as someone who could have forgotten what my rapist looked like, the one person you would never forget?” With the real memory of her rapist now erased and the new memory of Cotton as the perpetrator, Thompson made clear to the jury in no uncertain terms that the right man was in prison. Once again, the jury agreed and put Cotton away, this time for two life sentences.

And then something remarkable happened—DNA testing was invented. Eleven years after Ronald Cotton was sent to prison, his lawyer convinced investigators to apply the new science to a fragment of evidence left over from the crime scene. He was promptly exonerated and Poole, already in jail for raping another woman, was correctly identified as the culprit. And yet, so certain was Thompson in her memory, that when police investigators told her that the wrong man was behind bars, she was incredulous to the point of denial. She told the police investigator and the district attorney on the case, “That’s not possible. I know it was Ronald Cotton who raped me.” To get past the false memory, and the overwhelming, crippling shame of having put an innocent man behind bars, Thompson asked Cotton to meet with her for reconciliation and forgiveness. She was terrified and immediately began to cry when Cotton entered the room. Nevertheless: “I looked at him and said, ‘Ron, if I spent every second of every minute of every hour for the rest of my life telling you how sorry I am, it wouldn’t come close to how my heart feels. I’m so sorry.’” Did Ronald Cotton walk away in disgust, thanking Jennifer Thompson very much for stealing eleven years of his life? A lesser man might have, but as Thompson tells us, “Ronald just leaned down and took my hands and he looked at me and said ‘I forgive you.’ The minute he forgave me it was like my heart started to heal. And I thought this is what grace and mercy are all about. Here was this man that I had hated; I used to pray every day of those eleven years that he would die, that he would be raped in prison—that was my prayer to God. And here was this man with grace and mercy who forgave me.”55

Restitution from the state for Ronald Cotton came in the form of $10,000 per year of his incarceration, or $110,000 total, and he and Thompson wrote a powerful account of their saga together called Picking Cotton, which has led to some success in initiating reforms in the criminal justice system.56 In North Carolina, where the crime occurred, for example, legislation was passed requiring investigators to show pictures of possible perpetrators one by one instead of grouped together, and to add a clause emphasizing that none of them may be the guilty party, and to have the process be conducted by someone who doesn’t know who the suspect is, or even by a computer that says “the suspect may or may not be included”—all to avoid the numerous cognitive biases inherent in the process that contaminates the memories of a victim or an eyewitness.

I met Jennifer Thompson and Ronald Cotton at a conference in Spain (see figure 11-2), where they spoke before a packed audience about the need for reform and, most affecting, on the power of restitution, forgiveness, and friendship to heal wounds and restore justice. When Jennifer turned to Ronald—tears in her eyes and a crackle in her voice—you could hear a pin drop in the hall when she pronounced, “Ronald Cotton is my friend. He taught me that love and hate cannot coexist in the same human heart. You cannot be an angry person and be a joyful person. You cannot be someone who lives in peace and be someone who is out looking for revenge. And it was Ronald who taught me that.” This is a different form of self-help justice, and when the two of them hugged onstage after recounting their harrowing story, it was one of the most moving things I had ever witnessed, a testimony to the human spirit to rise above our baser instincts.

Figure 11-2. Ronald Cotton and Jennifer Thompson

A false memory led Jennifer Thompson to pick Ronald Cotton out of a police lineup as the man who raped her, leading to his incarceration for eleven years until exonerated by DNA evidence. The two now give lectures on the need for judicial reform and the power of restitution and forgiveness.57

RETRIBUTION AND THE DEATH PENALTY

We have a long way to go if we think that restorative justice can ever be applied to psychopaths and serial killers. But if the offender is not a serious criminal—maybe just a kid who made a tragic mistake or who has a troubled home life—then restorative justice may be just the thing. In general, let’s not abandon the goal of reducing crime and violence through better science and technology. For retributive justice to be effective, punishments must be applied judiciously and only to those who can react in a socially desirable manner. Both restorative and retributive justice can benefit from a more rigorous science of understanding how people respond to rewards and punishment (experimental psychology), internal psychological states (cognitive neuroscience), external social conditions (social psychology and sociology), positive and negative incentives (behavioral economics), the way in which incentives could be employed to deter would-be criminals from their future selves acting badly (neurocriminology), and how to prevent current criminals from becoming repeat offenders (criminology). Here again we see a smooth transition from is to ought.58

We are, in fact, in the middle of a profound shift in the criminal justice system, which is most noticeable in the decline of the death penalty. I’ve made the transition myself, from being in favor of the death penalty—primarily out of sympathy for the victims’ families—to being against it. Why? In a word, power. Power corrupts in many ways, but the power of the state over its citizens can be absolutely corrosive. In the bad old days when judicial torture and cruel-and-unusual punishments were routinely meted out to suspects and convicted prisoners for dozens of different offenses—most of which today would be considered misdemeanors or less (such as robbing a rabbit warren, poaching, sodomy, gossiping, stealing cabbages, and disrespecting parents)—retributive emotions went unchecked by restorative reason.

Replacing one form of retributive justice (of individuals against each other) by another (of states against individuals) reduced the violence of self-help justice, but it also gave states an alarming amount of power over their citizens. This is yet another effect of the civilizing process brought about by the Enlightenment’s emphasis on reason. Emotionally, punishment feels like it helps balance the scales of justice, but rationally it fails as a solution to a problem because it does not help restore justice to the victim. The state has been one of the major abusers of human freedom and dignity over the centuries, but fortunately the same forces that have propelled moral progress in other areas have tugged the state justice system up with it. Judicial torture was common among European states, and its abolition did not come about until the end of the eighteenth century, when the rights of the individual began to take precedence over the rights of the monarchy and, in the case of democracies, what John Adams called “the tyranny of the majority.”59 Figure 11-3 tracks this form of moral progress over two centuries as the Rights Revolution took off and as checks on state power began.

Initially, the death penalty seemed like a good idea as a replacement for self-help justice and as a crime deterrent. It may in part have been responsible for the former, but probably not the latter, since most criminals do not think long-term and most crimes that result in the death penalty are not the type that are planned well in advance in anything like a moral calculus. As evidence that the death penalty does not deter crime, consider the well-known fact that nineteenth-century public hangings in England and the United States were frequented by pickpockets working the crowd who were too preoccupied with the spectacle on the gallows to notice the crime unfolding right in front of them.61

Figure 11-3. Judicial Progress on the Abolition of State-Sponsored Torture

The abolition of legalized torture by states from 1650 through 1850.60

An additional problem with giving the state the power over life and death was succinctly summed up by the renowned US District Court judge and legal scholar Learned Hand in 1923 when he wrote, “Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.”62 The problem is that the justice system is flawed and makes mistakes. Innocent men are convicted, and more often than Judge Hand could have known. The assault on liberty is too high a price to pay for security. Cognitive psychologists, for example, have conducted experiments in which subjects who are tasked with being jury members and who are exposed to an audio recording of an actual murder trial do not wait to form an opinion and pass judgment only after all the evidence has been presented to them. Instead, most people concoct a story in their minds about what happened, make a snap decision of guilt or innocence, and then sort through the evidence presented to them, selecting the bits that most closely fit the verdict they’d already rendered in their minds.63 This is a quirk of human psychology known as the confirmation bias—where we look for and find confirming evidence for what we already believe and we ignore or rationalize away disconfirming evidence. The cognitive pathway from legitimate suspicion to confirmed guilt is very much shorter than we think. It is why kangaroo courts of autocratic governments and the old drumhead trials of battlefields—in which a drumhead was upended to serve as a makeshift bench where summary judgment against the accused could be hastily dispensed right there in the field—are no longer practiced.

The problem has spawned organizations such as the Innocence Project and the Innocent Network, which use DNA evidence to exonerate wrongfully convicted people. To date, since these organizations opened their doors and DNA labs, they have freed 311 wrongfully convicted people (all male, 70 percent minority), including 18 who were on death row awaiting execution.64 The Justice Brandeis Innocence Project estimates that 10 percent of America’s 2 million prisoners may have been wrongfully convicted, which translates to 200,000 innocent people in prison. As the University of Michigan law professor Samuel R. Gross noted about the larger problem, “If we reviewed prison sentences with the same level of care that we devote to death sentences, there would have been over 28,500 non-death-row exonerations in the past 15 years, rather than the 255 that have in fact occurred.”65 Such estimates were reinforced by a 2014 study published in the Proceedings of the National Academy of Sciences that estimated that if all prisoners who were sentenced to die remained on death row in the United States indefinitely, at least 4.1 percent of them would be exonerated. Based on this statistical method of estimation, the authors conclude that since 1973 as many as 340 American prisoners were wrongly sentenced to death. Tragically, the authors conclude, “The net result is that the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.”66

The case of Michael Morton is illustrative of the problem. Convicted in 1987 for the murder of his wife in Austin, Texas, he was sentenced to life in prison. In an interview by investigators the day after the murder, Morton’s three-year-old son said he witnessed the crime, saw and described the murderer as “a monster,” and most significantly said that his father was not home at the time of the attack. The county prosecutor, Ken Anderson, failed to provide Morton’s defense attorney or the jury with the transcript of that interview, along with other exculpatory evidence that might have planted a reasonable doubt in the minds of the jurors. Tragically, while Morton was rotting away in prison for a quarter century, the real killer—a man named Mark Alan Norwood, who was later caught and convicted—struck again, murdering another woman in the same manner and in the same area of Austin, where he lived.

In 2011, Morton was exonerated based on DNA evidence found on a bandanna at the crime scene that was smeared with Norwood’s blood. Morton’s attorneys then asked the Texas Supreme Court to convene an inquiry into misconduct by Anderson, and on April 19, 2013, the court of inquiry ordered Anderson to be arrested, saying, “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.” Nevertheless, despite the fact that Anderson was found to be in contempt of court, he was fined a mere $500 and received a sentence of ten days in county jail, of which he served only five. Compared to Morton’s twenty-five years in jail and the murder of another woman, plus the devastation to all families involved, where is the justice in the criminal justice system? When asked if he harbored any ill will toward those who took almost half his life away from him, Morton replied in what has to be one of the most rational arguments ever made against vengeance, “Revenge is like drinking poison and hoping the other guy dies from it.”67

*   *   *

For these reasons, and more, the death penalty has been abolished in most countries of the world, and in those where it is still legal (as in some states in these United States), it is on death row—rarely practiced, and when it is administered it is only done after lengthy, often multidecade, appeals and delays and stays of execution. In my home state of California, for example, the death penalty is automatically appealed, and prisoners on death row are more likely to die of natural causes. According to the Death Penalty Information Center, the eighty death sentences handed down in the United States in 2013 came from only 2 percent of counties, more than half of all thirty-nine executions that were carried out in 2013 took place in Texas and Florida, executions are down 60 percent since 1999, and 85 percent of all counties have not executed anyone in half a century.68 On the rare occasion when it is dispensed, lethal injection is the primary means because it is considered humane, at least compared to hanging and the electric chair. Still, many American and European pharmaceutical companies are now refusing to sell to individual states the lethal injection drug pentobarbital, leading to a scramble to fulfill needed stockpiles, and the 2014 mishandled execution of Clayton Lockett by Oklahoma prison medical staff shows that even when the drugs are available they are not always properly used.69

The trend downward in the death penalty since the mid-1990s is unmistakable, and US Supreme Court justice Harry Blackmun’s dissent in a 1994 case is emblematic of the tenor of the times. The case from which he was dissenting was the appeal by Bruce Edwin Callins for a stay of execution by the state of Texas, where he was on death row. He lost his appeal and was executed on February 23, 1994. Blackmun’s description of what was about to take place is a haunting reminder of what is at stake when the state has the power of life or death over its citizens:

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel—someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights—even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.…

Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.70

Figures 11-4, 11-5, and 11-6 track this form of judicial progress in the decline and abolition of the death penalty around the world and within the United States.

Figure 11-4. Judicial Progress on the Abolition of the Death Penalty

The decline of the death penalty by states from 1775 through 2000.71

Figure 11-5. The Decline in the Number of US Executions per Year

The decline of annual executions in the United States from 1977 through 2013.72

Figure 11-6. The Decline in the Number of US Death Sentences per Year

The decline of annual death sentences imposed by US states from 1977 through 2013.73

RESTORATIVE JUSTICE BY NATIONS

In late 2013 the United Kingdom’s Queen Elizabeth II issued an official royal pardon and apology to the British scientist Alan Turing, whose work in cracking the Nazi Enigma Code arguably did more to secure the Allies’ victory than any other single contribution by an individual during World War II. What was the queen apologizing for and why did Turing need a pardon? He was gay, which in England was a crime punishable by imprisonment, chemical castration, or both. After his code-breaking work and his pioneering efforts in the late 1940s and early 1950s in the nascent field of computer science, Turing was caught, tried, and convicted of “gross indecency” because he admitted to a sexual relationship with another man. In addition to being injected with a synthetic estrogen that caused the enlargement of breast tissue, the British government stripped him of his security clearance, and his career subsequently nose-dived, along with his will to live. In 1954 he took his own life at age forty-one, an incalculable loss to humanity of one of its greatest minds. “Dr. Turing deserves to be remembered and recognized for his fantastic contribution to the war effort and his legacy to science,” said the British justice secretary Chris Graying. “A pardon from the queen is a fitting tribute to an exceptional man.”74

The case is interesting for another reason related to legal justice and moral progress. The plan to pardon Turing was met with resistance from legal scholars based on the principle that no one is above the law, and at the time the law clearly stated that Turing’s actions were criminal. Former justice minister Tom McNally explained the reasoning this way: “It is tragic that Alan Turing was convicted of an offense which now seems both cruel and absurd. However, the law at the time required a prosecution, and, as such, longstanding policy has been to accept that such convictions took place and, rather than trying to alter the historical context and to put right what cannot be put right, ensure instead that we never again return to those times.” Agreed, but the only way to do that is to change the law, rebuke the reasoning behind it, and make right the wrongs done to those who were victims of this “cruel and absurd” law. In fact, Turing is just the most famous of those so hurt by this unjust law: scholars estimate that as many as fifty thousand men were convicted of gross indecency and that as many as fifteen thousand are still alive and carrying with them a criminal record for being homosexual.75 True restorative justice calls for a blanket pardon and apology to everyone who was harmed.

Such apologies and admissions have a checkered history, and so it is understandable that current governments are reluctant to go down the path of restoring harms done by someone else to someone else, particularly if restoration involves reparations. After World War I, Germany was forced to sign a war-guilt clause, despite the fact that most historians agree that all of the major powers were equally to blame for the war.76 Documenting the primordial desire for vengeance, in addition to massive payments that Germany could not afford to make, the Allies foolishly demanded 120,000 sheep, 10,000 goats, 15,000 sows, and 43.5 million tons of coal. This sowed the seeds of resentment that sprouted two decades later into the weeds of National Socialism.77 In his many speeches as he came to power, Adolf Hitler pounded his audiences with the injustice of the Treaty of Versailles, and when he subsequently conquered France he forced his vanquished enemies to haul out the same train car in which the World War I–ending German surrender had been signed, and in moral righteousness made the French sign their surrender to him then and there.

After World War II, when the world came to grasp the full reality of the extent of the Nazi genocide, an International Law Commission was born out of the Nuremberg trials of German war criminals for their “crimes against humanity,” which it defined as follows: “Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.”78 From the start, US Supreme Court justice Robert Jackson—who oversaw the initial trials of top Nazi leaders such as Hermann Goering and Rudolf Hess—insisted on a fair trial for all, noting in his opening statement, “To pass these defendants a poisoned chalice is to put it to our own lips as well.”79

The Nuremberg trials were one of the greatest contributions to expanding the moral sphere of justice on a global scale, signaling to dictators and demagogues everywhere that the world was watching and would hold them accountable for their actions. That accountability today falls on the shoulders of the International Criminal Court (ICC) in The Hague, but as David Bosco shows in his book Rough Justice, the ICC has been limited in its scope and reach by the great powers of the world, who would rather not have outsiders poking around too closely into their internal affairs. (In the murky world of distant proxy fights and support of Third World dictators, Franklin Roosevelt purportedly said about Nicaragua’s Anastasio Somoza, “He may be a son of a bitch, but he’s our son of a bitch.”) As Bosco notes: “The court has, for the most part, become an instrument in the toolkit of major powers, responding to instability and violence in weaker states,” while leaving untouched the leaders of the great powers.80 Still, the principle, if not the practice, of holding people accountable for their actions across state and national borders is moral progress in the globalization of justice based on universal principles of human nature and morality.

Attempts at reconciliation between nations are the subject of a comprehensive study by the political scientists William Long and Peter Brecke and presented in their book War and Reconciliation: Reason and Emotion in Conflict Resolution. Their database consists of 114 pairs of countries that had been engaged in a conflict between 1888 and 1991, plus another 430 civil wars. Reconciliation is a mixed bag of results. Some nations who have fought one another on and off for centuries, such as Germany and France, England and France, Poland and Russia, Germany and Poland, and England and the United States, have reconciled to the point where war seems risibly ridiculous. Others, such as the eternally in conflict Israel and Palestine, seem capable of erupting into all-out war at any time. Still others, such as India and Pakistan, have managed to keep the peace but also seem quite capable of breaking it given the right (or wrong) circumstances.

Of the many factors that go into the making of a successful reconciliation after a conflict between two nations, the two most effective are similar to those that work for restorative justice between two individuals: (1) public acknowledgment of harm done and (2) acceptance of imperfect justice. “In all cases of successful reconciliation,” Long and Brecke note, “retributive justice could neither be ignored nor fully achieved.… Disturbing as it may be, people appear to be able to tolerate a substantial amount of injustice wrought by amnesty in the name of social peace.”81 And as with reconciliation between individuals, forgiveness in the name of moving forward is key, even if neither side is fully satisfied with the outcome of the reconciliation efforts. The American Civil War is the prototype. At the war’s end, with a death toll in excess of 650,000, when so many Northerners wanted President Lincoln to mete out a harsh peace to the Southerners, he chose instead the more conciliatory approach of welcoming the South back into the Union with these memorable words: “With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”82

Reconciliation between oppressor and oppressed has been progressing since World War II. In 1970, West German chancellor Willy Brandt fell to his knees at the site of the Warsaw ghetto to express the guilt, sorrow, and responsibility of Germany for the Holocaust. This was on top of compensation West Germany had provided to Holocaust survivors and to the State of Israel to help build a Jewish nation.83 Germany goes far beyond political statements and payments. In many towns and cities one literally stumbles across what are called “Stumbling Stones” (designed by the artist Gunter Demnig) in front of homes and buildings where Jews, Roma, Sinti, and others once lived but who were relocated from their homes and perished in concentration camps.84 They’re a striking feature of the cityscape that speak volumes to remembrance and reconciliation. Figure 11-7 shows a pair of such Stumbling Stones I happened across in the bustling city center of Köln. The translation reads:

Here Lived

Julius Levi

Born 1885

Deported 1941

Lodz

Murdered

Here Lived

Henriette Levi

Maiden Schönthal

Born 1885

Deported 1941

Lodz

Murdered

Other countries express their own forms of conciliatory remembrances. In 1998 Australia launched National Sorry Day to remember and acknowledge the maltreatment of the aboriginal population by the Australian government, whose policies, among many abuses, resulted in a “Stolen Generation” of aboriginal children who were taken from their families in an attempt to convert them into “white” Australians. The movement arose when a 1997 report titled “Bringing Them Home” was tabled in Parliament and Prime Minister John Howard said he refused to apologize to the “stolen generations” because he “did not subscribe to the black armband view of history.” It took a decade of activism, but finally, on February 13, 2008, Prime Minister Kevin Rudd issued a formal apology to Australian aborigines for the Australian government’s laws, policies, and practices of the past regarding them.85

Figure 11-7. Stumbling Stones of Holocaust Remembrance in Germany

Memorials to those from Köln, Germany, who perished in the Holocaust. Thus they shall be remembered. Source: Author collection.

Great Britain apologized for its mistreatment of New Zealand’s Maori people and of subcontinental Indians. Canada apologized to the First Nation (Native Americans in Canada) survivors of the residential school fiasco, a program of deliberate cultural genocide—an attempt, boasted the minister of Indian affairs at the time, Duncan Campbell Scott, “to kill the Indian in the child.”86 Canadians have been especially receptive to restorative justice strategies and national apologies (apologizing also for Japanese internment camps during World War II and the Chinese head tax), to the point where one wag wrote that Australia’s National Sorry Day “differs from Canada’s National Sorry Day, in which Canada apologizes for existing.”87

Saying sorry is one thing; paying reparations for the sins of prior generations is quite another. Yahweh may visit “the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me” (as instructed in the Second of the Ten Commandments), but Western jurisprudence holds one responsible for one’s own sins and no one else’s, much less the present generation paying (literally) for the sins of generations in centuries past. As bad as most of us now feel about the decimation of Native American populations by European guns, germs, and steel, and the enslavement of Africans by American whips, chains, and shackles, there’s a reason why attempts to pass an act that gives every living Native and African American a cash payoff have failed. There’s a moral bright line that gets crossed in even the most enlightened of us who care deeply about rights and justice. And given the abuses and usurpations of one people against another, or one tribe, chiefdom, state, or nation against another over the past ten millennia, the apologies and reparations would never end. The best we can do is what we’ve been doing to fight for equal rights and opportunities for all peoples in all walks of life, and to fight against discrimination, prejudice, and injustice wherever we find it.