48 Forgiveness: A New Rhetorical Strategy for Creating an Equitable Criminal Justice System

Faculty Mentor: Kendall Gerdes (Writing and Rhetoric Studies, University of Utah)

With the increase in police brutality demonstrated in the killings of George Floyd, Breonna Taylor, and Tamir Rice, the criminal justice system is under the microscope of public scrutiny, and institutional change is demanded. Within the criminal justice system people of color are disproportionately affected by overly harsh administrative laws such as minimum mandatories, and racial prosecutorial rhetoric, leading to an increase in imprisonment and a decrease in equitable justice. The administrative laws responsible for the current climate within the criminal justice system were created in response to the Civil Rights movement in an effort to limit judicial discretionary power. Before the Civil Rights movement of the 1940’s to the 1960’s, judicial discretionary power was the means by which justice was delivered in the courts; essentially, judicial discretionary power allowed judges to use their own reasoning to determine the timeline and severity of the sentence. This method gave way to racism, as many judges used their power to favor white people while simultaneously suppressing people of color.

Post-Civil Rights movement, in an effort to rid the criminal justice system of the inequity rampant throughout, congress standardized sentencing law by instituting strict administrative laws know as minimum mandatories. With the adoption of these administrative laws, equality, at first, seemed to increase, as power was taken from judges. However, after decades of use, it is apparent that these laws may actually be more arbitrary, more violent, and more suppressive than discretionary power. Carol Steiker, Rachel Barkow, Azia Huq, and Julia Shaw, all legal scholars striving to address inequity in the criminal justice system, have advocated extensively for the abandonment of arbitrary, overly strict laws in favor of laws that force the criminal justice system to examine each case and each person individually. They claim to varying degrees that this will eliminate racial bias and increase mercy in the criminal justice system. However, if there is to be lasting and equitable change within the criminal justice system, it requires more than changes in policy.

It is clear now, that changes in policy without a change in rhetoric failed as the state transitioned from judicial discretionary power to administrative laws – because the rhetoric driving the criminal justice system had not changed, the policies had no effect in the long term in alleviating racial biases. I use the legal research of Steiker, Barkow, Huq, and Shaw to create a new rhetorical driving force within the criminal justice system, namely the rhetorical theory of forgiveness. Building upon legal principles, the theory of forgiveness allows for an increase in discretionary power while eliminating racial bias by holding judges and prosecutors accountable for racial rhetoric and acts of inequality. Rather than basing the success of prosecutors and judges on the number of people punished and the severity of those punishments, the theory of forgiveness institutes restoration and reintegration as the new standard of success. Prosecutors and judges will now be motivated to focus on helping individuals find restoration and reintegration through individualized sentencing practices that consider the circumstances of each case. As the theory of forgiveness becomes the underlying rhetoric of the criminal justice system, actors will feel a greater sense of responsibility to individuals and their unique circumstances; in essence, each person will receive the help – not punishment – they need to return to society. This will have long term effects in reducing the racial disparities evident within the criminal justice system.

My research advocates for the adoption of the theory of rhetoric within the criminal justice system by exploring current constitutional legal research. This research is indicative of where the criminal justice is going but fails to address more than the policy changes that must be made. However, applying rhetorical principles to the legal concepts advocated for allows one to see the criminal justice system through a new lens. I address the true issues facing the criminal justice system: the rhetoric that determines how policies are applied. With changing policies, I advocate for changing rhetoric; this cross-disciplinary research creates an environment in which true change can occur.