C. Remedies

After awareness and acknowledgement, the next step in a process of Truth and Reconciliation is to consider what sort of remediation should occur. Areas demanding attention in the context of racial justice in America include criminal justice reform and reparations.


1. Criminal Justice Reform

Professor Paul Butler, commenting on the mind-numbing regularity of instances of criminal injustice and police brutality toward blacks, says, "[t]he system is now working the way it is supposed to, and that makes black lives matter less. That system must be crushed, and the United States of America must, in President Obama's words, be remade."'

What steps might be taken to begin re-making the system? Regarding police brutality, we must demand greater police accountability, which is sadly lacking under current state laws. Only when the bad police are held truly accountable for their brutal tactics will it be possible for racial justice to improve. Police are supposed "to serve and protect," but too often in past decades (and centuries) in this country, that trust has been fundamentally breached.

Two changes would help improve police accountability: (1) require an independent prosecutor and venue in all police shootings; and (2) replace the current legal standard for use of deadly force from merely "reasonable" to the more demanding "necessity" standard.

Regarding the first, whenever a police shooting occurs, the case should be immediately transferred to a state (or federal) investigator, away from the local prosecutor and courts, where under our current criminal justice system police, prosecutors and courts exist in a cozy day-to-day symbiotic relationship of handling and moving cases, which is bound to be biased in favor of the police. As Kate Levine, Acting Assistant Professor of Lawyering at the NYU School of Law, says, "the conflict of interest between local prosecutors and police-defendants is so anathema to our system of justice that it requires removal in every case where an officer is accused of committing a crime."

The independent investigation of officer-involved deaths was a primary recommendation of President Obama's Task Force on 21st Century Policing. This is not impossible; indeed, one state, Wisconsin, has established such a system by requiring independent investigations in instances where police shoot and kill somebody. This reform has been widely embraced, as evidenced by the fact that "outside agencies were also called in to evaluate virtually every nonfatal police shooting in Wisconsin last year, despite no legal requirement to do so .... [The process] can be an effective way to protect the interests of the public and the officers who risk their lives to protect it."

Second, the current "reasonableness" legal standard used in almost every state fails to consider if alternatives to deadly force were available. The difference between this and the "necessity" standard, which is required for federal officers, is simple but crucial. Even when the police have a reasonable belief that a person is dangerous, the necessity standard does not permit deadly force if less deadly alternatives are available.

Individual police departments are instrumental in establishing the use of force practices in any particular community. Progress has been made in some jurisdictions. The nation's largest police force, the New York Police Department, a couple years ago established a new set of use-of-force policies, for example, no doubt prompted in part by the shocking chokehold death of Eric Garner on Staten Island by one of its officers on July 17, 2014--for the crime of selling loose cigarettes.

Bryan Stevenson explains that the Criminal Justice system "isn't just being shaped in ways that seem to be distorting around race; they're also distorted by poverty":

We have a system of justice in this country that treats you much better if you're rich and guilty, than if you're poor and innocent. Wealth, not culpability, shapes outcomes. And yet we seem to be very comfortable. The politics of fear and anger has made us believe that those are problems that are not our problems. We've been disconnected.


2. Reparations

Any discussion about remediation for centuries of racial injustice should also include "reparations"--the compensation for damages caused by past harmful actions and policies.

The notion of providing some sort of compensation for past wrongs is not new. Indeed, as originally conceived, race-conscious affirmative action programs-providing express preferences to people of color for admission to educational institutions, for instance--are examples of governmental efforts to begin to balance past inequalities. "The whole point of racial balance," Professor Girardeau Spann suggests, "is to stop giving whites the resources that they have in the past secured through societal discrimination, rather than through more legitimate means."

Unfortunately, the U.S. Supreme Court's current equal protection doctrine, with its requirement for minimizing race-consciousness, misses the entire point of trying to provide affirmative assistance to compensate for past transgressions. Professor Spann explains:

The whole point should be to highlight our race consciousness so that we can no longer complacently pretend that we live in a race-neutral culture. Grutter v. Bollinger and Gratz v. Bollinger allow the continued use of race-conscious affirmative action, but only with the understanding that it will not be used in ways that makes any systemic modifications in the current allocations of resources. The opinions take great pains to ensure that the continuing effects of societal discrimination will remain beyond the reach of race-conscious remedies. And that, in turn, perpetuates the invidious discrimination against racial minorities that has always characterized American culture.

The Court's approach has insidious effects:

By reading the Constitution to preserve the racial status quo in the allocation of significant societal resources, the Nation's white majority is able to continue discounting the interests of racial minorities in ways too passive to be immediately recognized as oppressive .... [T]he Supreme Court's refusal to allow even majoritarian political remedies for societal discrimination fits comfortably within a long tradition of Supreme Court impediments to the advancement of racial equality.

In his June 2014 Atlantic article, The Case for Reparations, Ta'Nehisi Coates makes the direct case for economic reparations:

And so we must imagine a new country. Reparations--by which I mean the full acceptance of our collective biography and its consequences--is the price we must pay to see ourselves squarely .... Reparations beckons us to see America as it is--the work of fallible humans ....

What I'm talking about is more than recompense for past injustices--more than a handout, a payoff, hush money, or a reluctant bribe. What I'm talking about is a national reckoning that would lead to spiritual renewal .... Reparations would mean a revolution of the American consciousness, a reconciling of our self-image as the great democratizer with the facts of our history.

The notion of reparations finds strong support in the political philosophy of John Locke, whose work formed the basis for much of the political theory underlying the Declaration of Independence and United States Constitution. Locke wrote:

Besides the crime which consists in violating the law ... there is commonly injury done to some person or other, and some other man receives damage by his transgression: in which case he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation from him that has done it and any other person, who finds it just, may also join with him that is injured, and assist him in recovering from the offender so much as may make satisfaction for the harm he has suffered.

It is not surprising, then, that we are able to find examples of reparations during the founding era. In the late 1700s, at a time when "black people in America had endured more than 150 years of enslavement, the idea that they might be owed something in return was, if not the national consensus, at least not outrageous." As Quaker John Woolman wrote in 1769, "A heavy account lies against us as a civil society for oppressions committed against people who did not injure us, and that if the particular case of many individuals were fairly stated, it would appear that there was considerable due to them."

And there is no question that for centuries, harm (of the sort envisioned by John Locke) has been suffered:

[This is] a country whose existence was predicated on the torture of black fathers, on the rape of black mothers, on the sale of black children .... Having been enslaved for 250 years, black people were not left to their own devices. They were terrorized. In the Deep South, a second slavery ruled. In the North, legislatures, mayors, civic associations, banks, and citizens all colluded to pin black people into ghettos, where they were overcrowded, overcharged, and undereducated. Businesses discriminated against them, awarding them the worst jobs and the worst wages. Police brutalized them in the streets. And the notion that black lives, black bodies, and black wealth were rightful targets remained deeply rooted in the broader society.

Besides the overt physical abuses, slaves literally built the early American economy through their unpaid labor; Coates explains:

Nearly one-fourth of all white Southerners owned slaves, and upon their backs the economic basis of America--and much of the Atlantic world--was erected. In the seven cotton states, one-third of all white income was derived from slavery. By 1840, cotton produced by slave labor constituted 59 percent of the country's exports. The web of this slave society extended north to the looms of New England, and across the Atlantic to Great Britain, where it powered a great economic transformation and altered the trajectory of world history. "Whoever says Industrial Revolution," wrote the historian Eric J. Hobsbawm, "says cotton." ... In 1860 there were more millionaires per capita in the Mississippi Valley than anywhere else in the country.

As for how reparations might be evaluated and calculated, Coates explains:

Scholars have long discussed methods by which America might make reparations to those on whose labor and exclusion the country was built. In the 1970s, the Yale Law professor Boris Bittker argued in The Case for Black Reparations that a rough price tag for reparations could be determined by multiplying the number of African Americans in the population by the difference in white and black per capita income. That number--$34 billion in 1973, when Bittker wrote his book-could be added to a reparations program each year for a decade or two. Today Charles Ogletree, the Harvard Law School professor, argues for something broader: a program of job training and public works that takes racial justice as its mission but includes the poor of all races.

More recently, in their 2003 Columbia Law Review article, Reparations for Slavery and Other Historic Injustices, Eric Posner and Adrian Vermeule offer "a framework to evaluate the morality of reparations and the legal problems that arise in implementing reparations proposals." They detail the "best known reparations programs ... [,] those for Japanese Americans who were interned by the United States government during World War II, and for victims of the Nazi Holocaust," ... and purport to "fill[] the gap in the literature by analyzing the various design options for reparations programs, their legal and constitutional bases, and their relationship to the standard moral and political arguments about reparations."

In his 2006 Essay, Reconsidering Reparations, Alfred Brophy challenges Posner-Vermeule's "limited definition of reparations and their limited catalog of reparations in American history." Utilizing his " legislative model' of reparations, Brophy proposes a relaxation of the relationship between wrongdoer and payer, and injured and recipient. Then [he] suggests several factors for a legislature to consider in designing reparations for historical injustice." The Essay's goal is thus to propose "an alternative framework for evaluating the morality and utility of reparations."

Speaking to white readers in the second person in his 2017 book, Tears We Cannot Stop, Michael Eric Dyson offers some intriguing thoughts on more personal forms of reparations:

It may be best to think of reparation as a secular tithe, a proportion of money and other resources set aside for causes that are worthy of support .... There are thousands upon thousands of black kids whose parents cannot afford to send them to summer camp or to pay fees for a sports team, or to buy instruments to play if they attend one of the ever-shrinking number of schools that has a band. Their parents cannot pay for tutors for math or science or English or whatever subject their kids need help with ....

You can choose five black children to sponsor on an annual trip to the local zoo. You can begin a film club for black children to attend movie theaters in more affluent areas where they might also enjoy a trip to the museum. Or you can pay for the textbooks of ten black college students each year. The point is to be creative in transferring a bit of your resources, even in modest amounts, to deserving and often struggling descendants of the folk who gave this country its great wealth.

In sum, "surely you can see the justice of making reparation, even if you can't make it happen politically," Dyson suggests. "Please don't say that your ancestors didn't own slaves. Your white privilege has not been hampered by that fact. Black sweat built the country you now reside in, and you continue to enjoy the fruits of that labor."

In the end, Coates suggests, it is not so much the monetary amount, but rather the very process of engaging in the inquiry, which would be the most profound outcome of a concerted effort toward providing reparations for slavery:

No one can know what would come out of such a debate. Perhaps no number can fully capture the multi-century plunder of black people in America. Perhaps the number is so large that it can't be imagined, let alone calculated and dispensed. But I believe that wrestling publicly with these questions matters as much as--if not more than--the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane. An

America that looks away is ignoring not just the sins of the past but the sins of the present and the certain sins of the future. More important than any single check cut to any African American, the payment of reparations would represent America's maturation out of the childhood myth of its innocence into a wisdom worthy of its founders.