Excerpted From: Darryl Heller, Reparations and Restorative Justice: A Path to Racial Healing, 34 Hastings Journal on Gender and the Law 37(Spring, 2023)(65 Footnotes)(Full Document)


DarrylHellerAs we settle into the first quarter of the 21 century, we are still haunted by Du Bois' 1903 observation that the color-line stood as the outstanding problem of his time, and remains so in ours. Evidence for this abounds, from current US immigration policy that prevents brown people from seeking asylum at the southern border, even when presenting clear evidence of fleeing danger, to the rise of white supremacist groups and white nationalism, manifest by the prominence of such groups as the Oath Keepers, the Proud Boys, and other self-defined “patriots.” Over the past decade there has been a series of anti-Black policies and practices. The 2012 killing of seventeen-year-old Trayvon Martin and the subsequent acquittal of his killer gave birth to the hashtag, #BlackLivesMatter. The murder of Michael Brown catapulted the hashtag turning into a full-blown movement as an unbearable parade of videos streamed across social and media showing unarmed Black people being killed by the police or others claiming to act in the “public” interest. The presidency of Donald Trump in 2016 and his “Make American Great Again” slogan harked back to the ‘good ole days' when white supremacy reigned, well, supreme. His tenure as chief executive opened the space for racist views that were thought but not said to be spoken aloud once again, and the conservative Supreme Court justices he appointed is on the verge of driving the final nail in the coffin of affirmative action. As if this were not enough, the Covid-19 pandemic exposed the long disparity in healthcare access as Black and brown people died in disproportionate numbers. While grappling with the uncertainty, fear, and isolation engendered by the pandemic, the world was shocked by the very public execution of George Floyd. A captive audience watched the cell phone video of Floyd, hands cuffed behind his back and lying face down on the ground with a cop's knee bearing down on his neck, cry for his mother with his dying breath. These incidents were proceeded by the 2008 economic crash that hit the nation when the inflated housing bubble broke, sending the country into a spiraling recession. Those hardest hit and who suffered the greatest loss were once again those most economically vulnerable, Black and brown people. Understated by the mainstream media and political pundits, but understood within the communities that were most affected, was that the tie that binds all of these crises together is the legacy of slavery followed by a century of poverty, violence, dehumanization, segregation, disenfranchisement mass incarceration, and marginalization, all of which remain hallmarks of historical racial injustice in the US.

Unquestionably tremendous harms have been done to Black people in America over multiple generations, beginning in 1619 with the arrival of the first 20 Africans who were traded off of a Dutch slave ship in Jamestown. At the moment of emancipation in 1865, when the nation could have atoned for the sins of slavery and worked to repair the particular harm that had been done to the formerly enslaved, it refused to give newly freed people land, protection, or a means to ensure their well-being and ability to flourish. Even during the brief period of Reconstruction, violence was a persistent and destabilizing threat. Almost a century of racial segregation and discrimination followed Southern redemption in which Black people were subjected to violence, relegated to second-class citizenship, and denied equal access to the resources available to most whites, all with full governmental complicity if not outright participation. The cumulative effect of Black oppression has been tremendous, and given the scale of the harm, it is no surprise that Black people still carry the scars of the violence they have borne and continue to bare. Most justice systems hold that those responsible for such harms should be held accountable; one incurs an obligation when responsible for harming others. Reparations have become the rallying cry to name that obligation and demand some form of redress. This is not a new concept and reparations for harms have been used as a vehicle for justice throughout human history.

I am in full agreement that reparations for slavery and its aftermath is a just response to the centuries of racial injustice that has hobbled Black life and Black advancement. The question of what to do about this, how to remedy this terrible wrong, is the force behind the demands for reparations and the crux of the debate that swirls around the issue. The obligation is often framed as a debt that is owed with justice being met when that debt is paid, either monetarily or otherwise. This paper will argue that compensation as a form of reparations for slavery and its aftermath is a critical step towards meeting the obligation of righting a long-standing injustice, but that in and of itself does not provide the full measure of justice that is deserved or required. Instead of relating to reparations as paying a debt that is owed, it suggests that reparations and the need for racial healing is better served within a restorative justice framework grounded in an understanding of relational equality that offers a new vision of a just society.

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Reparations is derived from the same root as the word repair. Restore has similar connotations and they are sometimes used interchangeably. Critics of restorative justice have often argued that this understanding is backwards looking and limited, or even perhaps wrongheaded, because to restore implies a return to a previous condition, which is not always possible or desired, especially if the previous conditions were themselves unjust. Far from the case, restorative justice, viewed relationally, seeks to understand what happened, as well as why and how it happened, not “to mete out blame and punish, but, rather, to identify matters about the past to inform a different and more just future. Asking what “what happened?” is a necessary step to clearing the ground for a future that is more just than the existed that led to the production of the harm in the first place. Reparations understood as a step in the restorative process, rather than as an end in itself, offers a vision of what that future can be.

I will end with a thought exercise. Imagine, if you will, what our society might look like if, 168 years ago, the four million newly freed people, traumatized by 246 years of being related to as chattel property, had been given consistent support and nourishment to heal. What if they had been given the resources to locate and be reunited with their family members who had been sold away from them so that they could reestablish their kinship ties? What if they had been given land, land that they had enriched and had a claim to through generations of forced labor, which would have allowed them to begin accumulating wealth to pass on to their children and the generations that followed? What if they had been given time and space to recover, in their own way and according to their expressed needs? Imagine further what it would have meant if the 14 and 15 Amendments had actually provided the rights and protections that were enjoyed by all white citizens? What if newly freed people could have made claims in court and had their cases judged fairly? What if liberty and justice for all applied to them? What if the democratic process, including unfettered access to the ballot, was fully open to Black people, who formed the majority in many southern counties? What would congress have looked like and what kind of priorities would have been made? What if the 15 Amendment had applied to women, Black and white, as well as Black men? What if their voices and their votes had helped shape national policies over the past 160 years? What if there had been a national reckoning with slavery's horrible past as a way of healing and moving forward as part of the emancipation process? And imagine where we will end up if we do not do it now?

I suggest that had emancipation meant that these conditions were fulfilled, the conversation about reparations would likely be unnecessary today because the conditions required for justice, restorative as well as relationally, would have been met. Perhaps that was too much to expect in the context of an entrenched ideology of white supremacy which questioned the humanity of Black people. However, I hold a deep belief in the present that our human capacity for good and decency can lead to different choices that speak to the better part of ourselves. I also believe it is never too late to make things right.


Darryl Heller is the director of the IU South Bend Civil Rights Heritage Center and an assistant professor of women's and gender studies.