This Article examines McNamara's "confession" and the public response to it within the context of an American tradition of confession in law and literature. Part I traces that tradition to the criminal conversion narratives and gallows speeches of colonial New England. Puritan society had clear expectations of what it took to make a good confession, and the Article identifies these rules for confession. It also examines the functions of confession in that society and argues that these confessions had several social consequences, including easing the consciences of those implicated in the criminal's punishment; bolstering civil and religious authority; warning the community as a whole of the perilous state of their own souls; and, rather surprisingly, creating communal solidarity with the condemned criminal. It then considers the secularized form of this tradition, with special emphasis on the role of a defendant's acceptance of responsibility in criminal sentencing. While these secular confessions lack much of the drama of criminal conversions and gallows speeches, many of the norms for a good secular confession resemble their religious counter- parts from Puritan New England. While many of the rules of confession have endured, today's acceptance of responsibility nevertheless lacks much of the social meaning of Puritan confession. Unhinged from the drama of sin, damnation, and salvation, and largely removed from public view, acceptance of responsibility serves neither as a re- minder to the public of the legitimacy of civil and religious authority, nor as a warning to its members of the perilous state of their own souls. Further, it does not create feelings of communal solidarity with the defendant, and it fosters the reintegration of the miscreant into the community only in the sense that his prison term is over sooner than it would be absent his acceptance of responsibility. Part II turns to In Retrospect, and to the various reactions it evoked. Approaching the subject first in the manner of a review of reviews, this Article examines the critical reactions to the book to elucidate con- temporary expectations regarding meaningful confession. It shows that much of the criticism has been framed in terms that track the norms for confession described in Part I. It then applies these norms and finds McNamara's confession wanting. The Article concludes by considering the extent to which the variety of reactions to McNamara's confession reflects our failure as a nation to come to terms with our Vietnam experience.
Place of Original Publication
Duke Law Journal
47 Duke Law Journal 491 (1997)
Strassfeld, Robert N., "Robert McNamara and the Art and Law of Confession: ‘A Simple Desultory Philippic (Or How I Was Robert McNamara’d into Submission)’" (1997). Faculty Publications. 364.