Restorative Justice

By Kennedy Green (University of Chicago ’18)

“We say… to the government of this country and to all the white racist imperialists who compose it, there is only one thing left that you can do to further degrade black people and that is to kill us. But we have been dying too long for this country…We must demand more from the United States Government.” – James Forman[1]

This is an excerpt from James Forman’s Black Manifesto, which was a call for reparations from synagogues, churches and the United States Federal Government at the height of the Vietnam War. There was still mass frustration in the Black American[2] community about the efficacy of the Civil Rights movement and its inability to fix issues of everyday racism. The most prevalent example of the time was discrimination in selection for draft deployment to Vietnam. Black Americans who looked for the success of legislation assuring their equality only found more and more of their young men being sent to be slaughtered in war. The Black community decided once again that they deserved to be given back some of the economic and global power that they had been forced to provide their federal government.  Many argue that the United States has provided reparations to the Black community, but they were not used to their full potential. This essay will argue that if this is true, these reparative efforts were not destined to be successful.  To do this, two periods of substantive reparative efforts made by the United States Federal Government will be examined: first, the period following the Civil War through the Interwar period; and second, the time that has followed the Civil Rights Movement. These times of reparation were failures because of the absence of key elements of successful restorative justice programming. These disingenuous reparative efforts have only isolated the Black community from equality; there was no acknowledgement of wrongdoing made by the majority of the White American community, and instead of respect, anger was forged between White America and Black America.

Restorative justice is defined in this essay as a way of distributing justice after the occurrence of an offense, and this distribution is primarily oriented at repairing the relational and social harm caused by the offense (Walgrave 2008, 21). This makes it perfect for restoring the bond between the Black community and the U.S. Federal Government, because restorative justice can mold itself according to the offense. There are important things to note in the administration of a restorative justice program, such as the fact that the “harm” that incurs restoration is not limited to an individual victim of a crime. Instead, the focus is on the harm caused in its entirety (Walgrave 2008, 21, 27). In the Black community this harm includes the racial discrimination that extended from the first victims of the slave trade to their descendants hundreds of years later. The best restorative programs include extended victim support, especially when the perpetrator, like the federal government, cannot be placed into custody (Walgrave 2008, 32).  Another element of restorative justice that distinguishes it from retributive justice is that the former focuses on a different temporal direction of crime. Retributivism is retrospective, based entirely in the idea that this crime was committed in the past, and is unconcerned with assuring that the crime is not committed again by the perpetrator (Walgrave 2008, 59). Because retributivism does not address the cause of the crime, we continue to see original crime committed again and again. When the crime is institutionalized racism, and when that crime continues to victimize generation after generation of the Black community, the way this crime is addressed must indubitably be changed.

To be clear, the restorative process is not required by any means under international or U.S. law. However, the Universal Declaration of Human Rights (UDHR) hints at the notion in Article 8 of its statute: “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Thus, restorative justice is an implied human right when considering the tenets of the UDHR. Additionally, the national government has to assure that all of its people are equal before the law and are entitled to equal protection under those same laws (Glendon 2001, 311-14). All people are granted the right to an education and are entitled to an adequate and full life of food, water, medical care and social services (Glendon 2001, 311-14). Without these things the victimized group cannot successfully re-integrate themselves into their state or into the international community. This is because reparations, and restorative justice largely, are essential to achieving equality of access to material resources and opportunities. Black people in the United States have had that equality promised and taken away time and time again.

The success of a restorative justice program lies within the transformation of the offender. Reparative actions made by the offender can only be successful if the group of offenders meet these requirements: they are in full acknowledgement of their wrongdoing; they have accepted responsibility for their actions; and they are willing to take action to repair the damage done by their wrongs (Walker 2006, 191). The acknowledgement of the offender that the offense made was their own doing is what distinguishes between giving something out of generosity and making amends to the victimized. Similarly, attempting to excuse the problem instead of confronting it makes the problem worse (Walker 2006, 196). The issue of racism is important when considering this theory because excusing racial discrimination often comes with an explanation of some sort (i.e. the United States is a post-racial society). Making excuses like these compounds the problem, making some victims feel their efforts to change their circumstances are futile or worthless.

However, what is worse than excuses, ignorance, or blatant refusals to change, is denial. When the offenders and institutions construct elaborate falsehoods, or restrict access to the truth about the offense, this magnifies the original crime (Walker 2006, 205). It reinstates the indignity of the original offense for a new generation of victims, where young Black people question the validity of their own thoughts and feelings. In the United States there has continued to be competition over the narrative of enslavement within the country; a multitude of state governments in the United States would like to revise “unpatriotic” teachings of American history over enslavement and race, blinding thousands of students to the truths about a difficult piece of the country’s past.  Additionally, there are implicit denials of the racism and enslavement narrative that can be found in the success and failure of Hollywood movies that pertain to it. Films that romanticize and downplay slavery (i.e. Gone with the Wind, Birth of a Nation) are hailed as American classics, and accurate depictions of the depths of these human rights violations receive lower box-office success and fewer accolades (i.e. Selma, The Color Purple, and Amistad) even if those movies are made by some of the most successful people in the industry (Winbush 2003, 47). Just considering these most recent transgressions made by the U.S., reparative efforts should be made to the Black community. But there are still those who say it has already been done, so, we look to international and domestic instances of reparations as a rebuttal.

Restorative justice has an expansive history in the international community, with varying degrees of motivation and success based on the commitment of the repairer to restorative efforts. Some of the most impressive and extensive examples of restorative justice have been given to the European Jewish community. These reparations were made by the countries that allowed their rights to be violated for years before confronting and defeating their fascist oppressor, Hitler. Not only was the Jewish community given a new state of their own, there were various efforts made by the international community to give them their lives back, returning dignity through returning possessions and homes. Then the international community worked to restore justice through punitive procedures for Nazi war criminals in the Nuremburg trials (Winbush 2003, 5-6). What really made the most impact in this global effort for reparations were the extensive West German payments that were willingly made to the State of Israel and to Jewish victims of the Holocaust. These payments were split into two categories: one, providing money to the State of Israel and Jewish organizations in West Germany that were doing outreach to survivors in compensation for the pain suffered by all those affected by the Holocaust; then, per the Luxemburg agreement, West Germany instituted national laws for victims to come forward and request reparations because of the physical and emotional harm done by Nazism (de Greiff 2006, 391). The key points to draw from this example was the perpetrator’s willingness to acknowledge and make amends for their wrong, no matter the material cost.

In an American context, failure to distribute adequate reparations is particularly shocking when considering what has been done for Japanese American human rights victims. In the Western states during the Second World War Japanese people were taken from their homes, had their possessions confiscated, and their children denied a public school education. Because they has experienced what was known as “real” loss, this made their claim for the U.S. Federal government’s response all the more legitimate (Winbush 2003, 18). In return they were given the 1988 Civil Liberties Act by Congress and President H.W. Bush (de Greiff 2006, 257). The law awarded about $1.2 billion to the affected Japanese as well as a public Letter of Apology, and these actions by the federal government successfully fostered long overdue healing for internees (de Greiff 2006, 276). This cathartic process was nearly 50 years after the deprivation had occurred, which gave once-silent victims an opportunity to talk about their experiences publicly and restore to themselves a sense of dignity (de Greiff 2006, 276). But when reparations bills for Black people have been nixed in congressional committee since 1867, the question from Black victims of American human rights violations is: “Why not us?” (Salzberger 2004, 65). To answer this simply, it is because what continues to be an issue in the restorative justice movement is mobilizing the national community. What happened with the Japanese victims of internment camps was that change came when the victims as well as their surrounding community demanded reparations and acknowledgement together (de Greiff 2006, 265-71). However, this becomes a problem for reparations for Black victims, when a majority of the white community vehemently believes that no apologies or reparations need to be made to them.

When examining the success that it has had in the international community and domestically, demanding reparations for slavery and violent racial discrimination in the United States is not outlandish. In reality, this expectation developed independently of international examples, because it has been promised since the end of the Civil War. Former slaves were promised education, 40 acres and a mule, and the rights and opportunities of any normal citizen, but these reparative efforts were administered and protected poorly. In fact, it seemed that these reparative efforts were institutionalized from the top-down so haphazardly, that it was the proximate cause of southern whites reactively instituting voting, land ownership, education, and conduct laws that were infamously restrictive on Black Americans. Which instead of teaching the freed generation and the one that followed the benefits of citizenship, it created a new generation of oppressors and victims in the United States.

Contrary to popular belief, restorative justice is not made to function on “white guilt” or shame. In fact, shaming the offenders can also lead to more disintegrative action (Walgrave 2008, 112). For instance, it can provoke actions of defiance and can cause the offender to be angry at the person “shaming” them. This is altogether unproductive and destructive, we must instead focus on bringing up the offense for the purpose of offenders being comfortable accepting responsibility for it and then being willing to make their own amends to their victims. The goal is for the offender to hear and understand the story of the harm done to the victim, which should theoretically change the offender’s shame about their offense into compassion for the victim’s continued discomforts (Walgrave 2008, 115).  Opponents of reparations and restorative justice claim that these programs and processes only victimize further, and this argument does have merit because of how integral the victim is to the genesis and success of restorative justice (Walgrave 2008, 72). However, restorative justice at its core is about restoring the relationship between offender and victim and bringing them back to equal ground, and any victimization would be contrary to the goal of integration.

Reparations in this paper is a form of restorative justice, where there is redistribution of either something monetary or material to encompass the gap made by the violation. Some critics of the reparations movement look to programs such as affirmative action to assert that Black Americans have been given programs of this nature already, and that these programs are adequate in meeting the expectations of reparation specifically for the Black community. However, this section of the paper will examine some these programs where reparations have supposedly been given and argue that these programs have been in fact impairing this community as much as the physical shackles placed on their ancestors’ feet. For instance, reparative efforts made in the time following the Civil War through the Interwar period encapsulated the failures of Reconstruction and the legalization of racism, which led to rampant violence against the Black American community.

One of the most prevalent instances of lashing out against Black Americans was the land deprivation of “Freedmen” in the southern United States. After the Civil War, when Black land ownership was legalized in the South, frustrated southerners forcibly or legally robbed that property from members of the Black community. One particularly popular time for this crime was from 1900-1929, but it has been purported to have begun as early as Reconstruction, and was known as “whitecapping” (Winbush 2003, 48). This trend originated in the Midwest and moved down to southern rural communities; it involved white capped night riders abusing Black landowners and forcibly confiscating them of their land (Wimbush, 49). In the same vein, lynching of Blacks became an extremely popular method to also engage in land theft, where Black patriarchs were targeted to be lynched so that the widow or remaining family would be forced to auction off their land or abandon it (Winbush 2003, 49). This was a failure in restorative justice because restorative responses to crime cannot be imposed from the top down, this can and did cause frustration that led to lashing out against the victims, especially those who were brave enough to call attention to the crime. Very few were able to portray legal standing to properly address this crime, and therein lies another real failure, that of conscious inaction. For the United States Federal Government and many state governments on both sides of the Mason-Dixon Line allowed these massacres to continue on unchecked.

Another example of failed “Reconstruction” reparations can be found in the “Freedmen” educational program, which was engineered to make recently freed slaves, men (who could vote) in particular, able to fully function as relatively educated American citizens. As former slaves tried to use these opportunities to elevate themselves from second class citizenship, angry White southerners shot, stalked, and maimed students who tried to go to the northern sponsored school houses (Salzberger 2004, 18). And this was not anywhere outside the norm in the Antebellum South, the savagery of slavery was replaced with the monstrosity of raping, burning down houses, and pillaging Black communities. A former slave from North Carolina described the experience after being freed as such: “Lincoln got the praise for freeing us, but did he do it?  He give us freedom without giving us any chance to live to ourselves and we still have to depend on the southern white man for work, food, and clothing, and he held us through our necessity and want in a state of servitude but little better than slavery… The Yankees helped free us, so they say, but they let us be put back in slavery again” (Salzberger 2004, 19). It is clear that the restorative processes after the ending of slavery were made useless very quickly in the United States. There needed to have been more support and understanding from the southern White population before any these programs were to be forced into place. Without a willingness to fix the problem there will not be effective peacemaking solutions made; the commitment of the offender is just as important as that of the victim.

The act of reparation that will be explored from the time following the Civil Rights movement is affirmative action. Flashing forward to the Johnson administration, two executive actions were created to force federally controlled institutions and ones that received federal funding (including colleges and universities) to consider increasing racial diversity as a factor in acceptance and hiring (Liptak 2015). In the context of the tenets of restorative justice that have been enumerated in this paper, it is fallacious to categorize affirmative action as a reparative program. This is because affirmative action is a system that grants access to earn compensation in the future, and simply put, reparations are not supposed to be given on a basis of earning (Corlett 2003, 214). Even when considering this fact, it is worthwhile to examine the entirety of affirmative action.  First and foremost, the program’s goals have not been completely met, and their catalyst (lack of minority representation in public sector employment and university enrollment) has not changed significantly in the last 50 years (Liptak 2015). However, affirmative action has been made into a beast of victimization by public opinion, where minority students are frequently told that they only were accepted into their institution of higher learning because of their race; otherwise, they do not belong there. Additionally, this is no longer an exclusively federal issue, eight states since the creation of affirmative action have banned its use in the public college admissions process (Liptak 2015). Additionally, the Black community as a whole has not in fact been shown to have a significant difference in acceptance into university. There have been improvements in upper-class minority enrollment, but not lower class minority enrollment; the Black community has been shown to be still be relegated to that latter party (Kahlenberg 2015). Further, affirmative action has become such a scourge of public opinion that the constitutionality of the mission of affirmative action has been appealed to the Supreme Court 4 times to date. Although we do not know the outcome of the most recent oral arguments, for the purposes of this paper the outcome of this decision is not important. The fact alone that this is such a heavily scrutinized program is emblematic of the fragmentation between the white community and those of people of color. This program has not repaired that division in any way shape or form.

The failures of the past are not to say that the United States cannot do better right now. The future of reparations in our national community can change if we do a better job at examining largely successful moral reparative efforts that have been made elsewhere. The most salient example that this paper will discuss at length is the restorative justice movement of South Africa. After the abolition of apartheid, the new regime of the South African government in 1996 created the Truth and Reconciliation Commission (TRC), with the purpose of creating a restorative justice program that would address the emotional burdens that institutionalized racism and human rights violations left behind (de Greiff 2006, 176-7). The lessons and the work of the TRC is important to examine as we look to solutions in the United States; and, at how far restorative justice can go in repairing hundreds of years of damage. It is clear that the greatest pitfall of the program lied within its lack of permanence. After the testimony of victims was elicited and oppressors asked for amnesty, the recommendations of the commission were not enacted in totality, and the reparative stage of the program never came to fruition (de Greiff 2006, 176-7). However, it is difficult to place an inordinate amount of blame on the TRC for being unable to make the transition from reconciliation to reparation. This is because, although this commission may not have been the first of its kind in the international community, it might as well have been. One of the unique qualities of restorative justice is its inability to be predictable. Each restorative process is different for each group of victims, and it can be more damaging to try and impose a one size fits all structure upon an already tenuous process (Doxtader 2004, 121). Often, it is through the restorative process, through hearing the stories of the victims and hearing what they look for in reparations that the commission is able to determine what needs to be done (Doxtader 2004, 135). Unfortunately, it is then up to the government to decide whether or not (or to what extent) they will continue the reparative process.

The TRC was painstakingly aware of the importance of maintaining a narrative of the brutal truths of apartheid in order to empower all victims: Archbishop Desmond Tutu stated that reconciliation between the victims and offenders could not be made upon foundations of falsehood or solely the offender’s understanding of the violations (Doxtader 2004, 81). One issue with seeking the truth in this context is the community feeling that their painstakingly given stories, publicly or privately, did not result in any community healing.  A community member from Zwelethemba said, “[The TRC and the United States Government] wrap themselves in our soreness and then go away. Why does the TRC say they want to heal us? … You come in, in a hurry. Come in, out again. That is the way it’s been, and we are the victims. We don’t think that is the way we are going to heal” (Doxtader 2004, 106). In response, the claim is made that it is in the maintenance and initiation of this dialogue that the power of maintaining a truthful narrative arises, its ability to prevent the unavoidability of future trespasses.

To return to community level analysis of the TRC, this paper will examine one of the less talked about consequences of the institutionalization and re-institutionalization of racism: the proliferation of victim-on-victim crime. In the United States, Black-On-Black crime is listed as an argument against reigning in police standards of conduct, because there are questions about the safety of neighborhoods that are gang ridden and poor because of the inaction of predominantly Black communities. However, this cycle of violence and its proliferation has been seen in many societies that have fallen victim to colonization and racism. Some victims of apartheid who refused to come forward were victims of brutal Black South African crimes (Doxtader 2004, 257). 450 people (nearly all of them black) were given the treatment known as “the necklace”. This was where a suspected informant for the white police or other turncoats within the Black South African community were taken and made to set themselves aflame via a tire doused in gasoline that was placed around their neck (Doxtader 2004, 257). In cases like this, victims were deterred from testifying in the TRC because many bystanders and perpetrators of those grisly murders also came before the commission to speak about the violence that had afflicted them during the oppression of apartheid. Some of this can be attributed to the lack of anti-apartheid leaders in the community at the time, and the young, frustrated, and unemployed took justice into their own hands in the best way they could think of in a time of confusion and loss (Doxtader 2004, 262-3). This is not that far off of an assessment of what occurred in many Black communities at the turn of the 70’s to the 80’s, when Black people began to see re-segregation, but amongst themselves. The wealthier and better educated abandoned the urban neighborhood for the suburbs. This deprived the community of the leaders who had given them direction and avenues to constructively use their anger.

It is no surprise then that this was also the time where we began to see more young Black men finding fraternity and monetary security through hustling and gangbanging. When these young people then have those precious associations, violated and pursued by the police authorities, it can cause severe anti-authority sentiments. In a restorative justice context, when a government does not reassure victims of their importance, this forces the victims to cast doubt on the validity of that institution as a whole. Similarly, it is harmful to victims of injustice to see failures to reprove offenders, because it can cause them to lose faith in the promised institutional norms of equality and justice (Walker 2006, 32). But interestingly enough this causes many proponents of restorative justice to see the restoration process as a way of reinstituting victims’ belief in national democracy as a whole. This is because when done correctly, restorative justice can also provide citizens with faith in their governments, especially if they once thought that same government assigned them very little value.

It is even less surprising to see that many of the issues of education, violence, and inequality within the Black community can be traced back to the ghosts of slavery in one way or another. But what is truly surprising is that the majority of the Non-Black society today openly wonders about the Black community’s inability to raise themselves up by the bootstraps, especially if they’ve been provided so many years and opportunities to do so. It has become increasingly clear that these opportunities were neither wholeheartedly provided nor protected by the government. It would make perfect sense for the Black community to give up on breaking into a society that clearly does not want them, which is exactly why the United States who cannot give up on these victims. This is an insular minority of people has been systematically denigrated, terrorized, subordinated, and exploited by the United States, and repairing relationships and restoring justice to them will be a long-term, but fulfilling, process. If used wisely, there is power in the time that it takes for the offenders and the victims to heal and integrate behind core values and mutual respect. However, the longer we wait to begin this process correctly, to restore what has been taken away, the less valuable we make a whole class of people and the less valuable we make our entire society.

 

 

 

Works Cited

Corlett, J. Angelo. Race, Racism, and Reparations. Ithaca: Cornell UP, 2003. Print.

De Greiff, Pablo, ed. The Handbook of Reparations. Oxford: Oxford UP, 2006. Print.

Doxtader, Erik, and Charles Villa-Vicencio, eds. To Repair the Irreparable: Reparation and Reconstruction in South Africa. Claremont: David Philip, 2004. Print.

Glendon, Mary Ann. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001. Print.

Johnstone, Gerry. Restorative Justice: Ideas, Values, Debates. 2nd ed. Abingdon, Oxon: Routledge, 2011. Print.

Kahlenberg, Richard D. “The Future of Affirmative Action.” The Atlantic. The Atlantic, 08 Dec. 2015. Web. 09 Dec. 2015.

Liptak, Adam. “Re-Examining Race and College Admissions.” The New York Times. The New York Times Company, 09 Dec. 2015. Web. 09 Dec. 2015.

Martin, Michael T., and Marilyn Yaquinto, eds. Redress for Historical Injustices in the United States: On Reparations for Slavery, Jim Crow, and Their Legacies. Durham: Duke UP, 2007. Print.

Rampell, Catherine. “The Bizarre War against AP U.S. History Courses.” The Washington Post. The Washinton Post, 19 Feb. 2015. Web. 09 Dec. 2015.

Salzberger, Ronald P., and Mary Turck, eds. Reparations for Slavery: A Reader. Lanham, MD: Rowman & Littlefield, 2004. Print.

Walgrave, Lode. Restorative Justice, Self-interest and Responsible Citizenship. Cullompton, UK: Willan, 2008. Print.

Walker, Margaret Urban. Moral Repair: Reconstructing Moral Relations after Wrongdoing. Cambridge, UK: Cambridge UP, 2006. Print.

Winbush, Raymond A., ed. Should America Pay? Slavery and the Raging Debate on Reparations. New York: Amistad, 2003. Print.

[1] Salzberger, Ronald P., and Mary Turck, eds. Reparations for Slavery: A Reader. Lanham, MD: Rowman & Littlefield, 2004. Print. 74

[2] Throughout this essay I will be referring to the community of slaves and their descendants in the United States as Black and not African-American, because the latter is improper terminology for this group of people and only furthers the narrative that Black people are imports into this country and are less American than anyone else. Here is a helpful article written by Professor John H. McWhorter from Columbia University about this issue for further clarification: http://www.manhattan-institute.org/html/why-im-black-not-african-american-0153.html

 

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