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Shortly after the deadly riot at the Capitol, the press began to run articles with the ostensible goal of painting a more complete picture of the insurrectionists. As I have lamented elsewhere, most of these efforts were pitifully thin, but there has been one notable exception. On January 18, the New York Times profiled Klete Keller, the former Olympic swimmer who participated in the Capitol riot and has now been charged with various offenses.
Among the millions of people hauled into court on criminal charges every year, whom should we forgive?
The article paints the 6’6” Keller as a gentle giant. Former coaches and teammates recalled him as a “champion prankster” with “a foghorn laugh” who “lived to be liked.” Yet all was not frivolity and mirth, and those who knew him best saw the sadness behind the smile. They described “a melancholy side” to his personality that overtook him once his athletic career ended. “Great person, great soul, great teammate,” said one of his fellow Olympic swimmers. “But he just had a hard time finding his place in society outside the pool.” Attempts to build a new career “didn’t pan out.” His marriage collapsed, and an ugly divorce kept him from his three children “for long periods.” Without work and with no place to go, he spent months living out of his car, maintaining a membership at a local gym so he could have a place to shower.
Yet the core of the article is not the difficulty Keller has had since he retired from competitive swimming. It is the deep, searing regret he apparently feels over his involvement in the riot. (I say “apparently” because the journalist did not speak to Keller; she spoke to his friends.) The profile opens with a dramatic scene. One of Keller’s former coaches called him after learning he had been part of the mob. How would Keller react: Rage? Denial? Bluster?
The last thing he expected was for Keller, the decorated swimmer he had known as a merry prankster, to dissolve into tears. “He apologized to me,” said his former coach. “He kept repeating, ‘You’ve done so much for me, and I let you down.’ He kept saying over and over, ‘I didn’t mean for any of this to happen.’”
The article closes on the same apologetic note. Another former coach, who spoke with Keller the day he appeared in court, recalled that he “cried throughout their 15-minute conversation.” He said Keller “never thought about what could happen. He was at the wrong place, at the wrong time, with the wrong people.” In nearly 1600 words, the first and last image for the reader is a sobbing, remorseful Keller, whose role in this riot is shriveled to almost nothing, more accidental than intentional.
Indeed, while the article is long on apologies and personal history, it makes no mention of the roughly 140 officers injured in the riot, including one who, according to the chairman of the Capitol Police Officers union, suffered two cracked ribs and two crushed discs and another who was stabbed “with a metal fence stake.” Nor does the profile remind the reader of the police officer who died as a result of injuries sustained at the scene, the two officers who responded to the riot and later committed suicide, the woman who was shot and killed inside the Capitol, the woman who was trampled to death on the steps outside, or the members of Congress who barely escaped the melee. In fact, the only mention of the riot treats the victims as abstractions; it was “crowds that assaulted the Capitol,” and a “mob bent on disrupting . . . democracy.”
Forgiveness provides a background sense for the moral worth of the accused—the place he holds in society, and how social institutions should treat him.
Thus, on the front page of the paper of record, we are treated to a lengthy profile of a criminal defendant that trains the reader’s sole attention on a wholly sympathetic portrayal of the accused and that minimizes his culpability and the seriousness of the crime.
We don’t need profiles like this to remind ourselves that journalists who write about crime treat some people better than others, replicating the identical inequity that exists in the criminal justice system. If that were all the profile provided, we could brush it off as fluff. But the centerpiece of the article—Keller’s heartfelt, tearful apology—signals that something else is at play, something far more significant: what I call the (deeply unjust) politics of forgiveness.
• • •
We tend to think of forgiveness as a purely private, interpersonal gift: one person chooses to forgive another for the wrong they have done. But as Keller’s profile makes plain, that view is far too narrow: forgiveness is often a public act, not just a personal one. The Capitol riot was widely described as an attack on “the people’s house.” In a very real sense, Keller committed a wrong against all of us, and all of us—or at least, the readership of the Times—are asked to join in his forgiveness. As my work as a defense attorney has taught me, the same is generally true for all criminal cases. Though such cases often begin with a private wrong, they become criminal only when the state, ostensibly acting on behalf of the people, gets involved. Keller’s apology thus poses a vital question: Among the millions of people hauled into court on criminal charges every year, along with the millions more who were convicted in the past and now seek a second chance, whom should we forgive?
Forgiveness does not exclude the possibility of punishment. But in deciding whether to forgive, society may nonetheless adopt a forgiving orientation toward you, your conduct, and your future.
When society forgives someone who has been charged with or convicted of a crime, it does something exceedingly important that takes place separately from what occurs in the criminal justice system. In Keller’s case, the justice system will ultimately determine whether he committed a crime. But in deciding whether to forgive, society—or at least a large and powerful portion of it—may nonetheless adopt a forgiving orientation toward him, his conduct, and his future. That attitude is one of benevolent, empathetic compassion undergirded by the foundational, unwavering belief that Keller is “one of us.” It views him not as an alien or a monster, but as a flawed soul who strayed, as all of us might stray.
Social forgiveness does not exclude the possibility of punishment. But the belief that he is one of us will exert a powerful influence on everything that happens within the criminal justice system, from the language used to describe him and his crime and the charges he might face, to the rules employed to adjudicate his guilt, the view a judge or juror takes toward him, and the kind and quality of punishment he receives. To approach him with a forgiving attitude means that his treatment in and by the criminal justice system will be leavened by the certainty that he was and will remain a valued member of society—one who will be welcomed back into the fold once his punishment, if imposed, ends.
Social forgiveness thus operates alongside the criminal justice system even as it shapes it. It provides a background sense for the moral worth of the accused, the place he holds in society, and how social institutions should treat him. In this way, social forgiveness is not just an interpersonal gift. It is a public good with the power to change everything. And like any public good, it is doled out unevenly.
• • •
Researchers have identified three behaviors that most reliably activate what the social psychologist Michael McCullough calls “the forgiveness instinct”: apology, self-abasement, and compensation. Presented with these behaviors, our attitude toward a transgressor softens noticeably. We become less vengeful, less apt to view them as outsiders, and less eager to see them punished.
Forgiveness is often a public act, not just an interpersonal one. But like any public good, it is doled out unevenly.
Consider how these features play out in the profile of Keller. While it makes no mention of compensation—I haven’t seen anything to suggest that Keller, or any rioter, has offered to pay for the damage they did and the pain they caused—the Times article supplies a textbook example of apology and self-abasement. At least according to his coaches, Keller apologized unequivocally, with no attempt to deflect responsibility or place blame onto others. And his is not the reluctant apology of the unrepentant (“I’m sorry if my actions upset you”). At the same time, the image of his uncontrollable sobbing in two separate conversations functions as a display of self-abasing behavior.
All of this sends powerful signals to the rest of society. To begin with, Keller’s behavior reaffirms his attachment to the values and norms of the group. By acknowledging that he has done wrong, he declares his commitment to play by the rules in the future. This serves as both a plea that he not be cast out as a pariah and a reassurance that he poses no threat. By his actions, in other words, he says, “I am one of you, I can be trusted despite this lapse, I am not dangerous.” This portrait is then reinforced by the editorializing of his friends and coaches. The people “who know [him] best,” we read, found it “nothing less than bizarre” to see him at the Capitol and made a determined effort to diminish his culpability. Keller, they said, “didn’t mean for any of this to happen,” “never thought about what could happen,” and was simply “at the wrong place at the wrong time with the wrong people.” These statements defang Keller’s behavior by draining it of its purposefulness. And his wracking torment—the picture of sobbing—activates the sense of empathy that many people feel when faced with the suffering of others. Empathy, as McCullough and his colleagues have shown, is a primary pathway to forgiveness.
As much as his apology and abasement help Keller in his quest to be forgiven, they are not the only things that work in his favor. There is, perhaps above all, the matter of his race. Keller is white, and a picture of him appeared in the article. His whiteness likely lends his plea at least an implicit boost. Researchers have long found that white people tend to associate blackness (but not whiteness) with criminality and to believe that Black people are more prone to violence than white people. As the psychologist Jennifer Eberhardt and her colleagues have observed, the “mere presence of a Black man . . . can trigger thoughts that he is violent and criminal.” In short, some people are apt to view Keller empathetically simply by virtue of his race.
Many people dragged into the criminal justice system regret what they have done. Few can hope to see their regret empathetically broadcast to an audience in the tens of millions.
Yet the role of whiteness in this claim to forgiveness should not be overstated. The overwhelming majority of the rioters at the Capitol were white, and by and large, the Times, like most other mainstream media outlets, has tarred the entire crowd with insurrectionist feathers. Another factor besides Keller’s race—though not totally unrelated to it—is his social stature. He is not simply an average Joe, an arbitrary middle-aged white man. He swam in three Olympic games and won two gold medals alongside the storied Michael Phelps. In the United States, there are few titles that are more universally honored than “Olympian.” Even the titles that often confer the most status and respect in today’s society—doctor, first responder—do not conjure the same image of talent, dedication, sacrifice, and patriotism. In these fractious times, even soldiers may not stir the same feelings, particularly as news comes out of the many veterans who participated in the riot January 6. Perhaps more than anyone else, Olympians are revered as American heroes—or as the Times put it, “the personification . . . of American greatness and success.”
This rarefied perch makes Keller’s story irresistible. The media always loves an Icarus tale: How could someone who flew so high fall so low? But more than that, Keller’s status magnifies the impact of his tearful, heartfelt apology. Psychologists have found that people tend to be particularly impressed with apologies by high-status offenders and are more apt to forgive their transgressions than those of people who do not enjoy the same social status. Though Keller no doubt behaved the same as many other rioters, his apology touches many people much more deeply precisely because it comes from a place of privilege.
Then there is the benefit that Keller enjoys from the people who vouch for him. As a former elite swimmer, Keller had an entire retinue of well-educated, well-spoken ex-teammates and coaches who could be reached in fairly short order. They could be counted on to flesh out Keller’s profile, disclose his tragic backstory, and give voice to his great regret. Through their recollections, Keller becomes more than a caricature. He becomes a complex human being, as flawed, frail, and damaged as the rest of us. But it is important to recognize that their recollections are carefully curated—either by the journalist or her sources—to create a favorable impression. The journalist either did not speak to Keller’s ex-wife (she of the contentious divorce) or did not elect to quote what she said, and seems to have made no effort to figure out why he was denied contact with his children for so long.
• • •
Reading Keller’s profile as a case study in the social function of forgiveness allows us to see the real significance of this kind of media coverage. Researchers have consistently found that many people dragged into the criminal justice system regret what they have done and, like Keller, want to apologize to their victims and be forgiven. As the Times columnist Elizabeth Bruenig put it last summer, they seek a world where they are not compelled to “permanently inhabit [their] failure.” But few indeed can ever hope to see their regret empathetically displayed to an audience in the tens of millions. Fewer still can hope that it be communicated by such well-respected spokesmen. Perhaps none at all can hope, in their wildest dreams, that their regret will be unsullied by ugly reminders of the pain they helped inflict. And literally none start with the built-in advantage that comes from being a white Olympic champion. The pedestal on which Keller stands is a monument to the politics of forgiveness.
Everyone seeks a world where they are not compelled to “permanently inhabit [their] failure.”
In recounting all this, I do not wish Keller ill. I don’t know him, but I hope he receives a nuanced, compassionate assessment of his moral culpability, informed by the fact that his actions on that single, fateful day are not the whole of his existence. I hope that assessment takes into account the regret he feels and the pain he endures. And most of all, I hope society’s desire to punish can be softened by the need to forgive. In short, I hope he receives judgment in a spirit of forgiveness.
But, crucially, I have the exact same hope for every criminal defendant. Every person who has made a tragic mistake that will haunt them for the rest of their days. Every tortured soul who pulled the trigger or struck the blow or ran the red and who now cannot escape the scene that plays on an endless loop in their brain, reminding them every minute of the damage they did and the misery they caused. Everyone whose inexplicable violence led bewildered friends and grief-stricken family to mutter that same tired trilogy—wrong place, wrong time, wrong people. They should all be judged with the same spirit of compassionate forgiveness as Klete Keller.
But they won’t. Not unless we fundamentally change our approach to criminal justice. Not unless we adopt a forgiving attitude and accept that those in the system are not the demons we imagine them to be. Not until we finally acknowledge they are one of us. Once we embrace this truth, we will have taken the first and most important step toward genuine reform of the criminal justice system. To approach each person in a spirit of forgiveness rather than condemnation, to treat them as a member of society rather than an outcast, will slowly unwind the punitive turn of the past fifty years.
Our work must be to widen the reach of justice, not to ration it. And central to that effort will be to achieve, at last, the fair distribution of the good of forgiveness.
As we pursue this work, I recognize that Keller might receive what is stubbornly withheld from so many. But that is not his fault, and society should not deny him forgiveness simply because it will probably deny it to others. Justice is never served by being unjust, and cruelty is not made less cruel simply because it balances out cruelty inflicted elsewhere. Our work must be to widen the reach of justice, not to ration it. And central to that effort will be to achieve, at last, the fair distribution of the good of forgiveness.
Joseph Margulies is Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar and Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. His books include Guantánamo and the Abuse of Presidential Power and What Changed When Everything Changed: 9/11 and the Making of National Identity.
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The lawless—and ongoing—administration of the prison by four American presidents underwrites the broader democratic crisis we face today.
The militarization of gun culture among both civilians and police reflects an increasingly energetic defense of white rule in the United States. This has been facilitated in part by an NRA-led reinterpretation of what the Second Amendment meant by “militia”.
My patients and I don’t use words like “choice” or “viability.”