Excerpted From: Roy L. Brooks, Symposium Introduction: Walking with Destiny, 60 San Diego Law Review 455 (August-September, 2023) (137 Footnotes) (Full Document)


RoyLBrooksDuring the Enlightenment, the poet Robert Burns lamented, “Man's inhumanity to man [m]akes countless thousands mourn.” Burns was looking back over centuries of human injustices--atrocities--as the empirical basis for his mournful reflection. But even now, long after the Enlightenment, we have not been able to curb our proclivity for committing atrocities. What we have been able to do after all these centuries, however, is enlarge the human capacity for redressing--repairing--the damage wrought by our atrocities. As atrocities do not appear to be ending, redress has become our destiny.

California is attempting to walk with this destiny. Our most populous state is poised to become the first government entity in the country to offer significant redress for slavery. Through the work of a government commission, the Task Force to Study and Develop Reparation Proposals for African Americans (Task Force), California has begun a process that is calculated toward using reparations as the principal mechanism for redressing slavery--“Black Reparations.” With the excellent assistance of talented and energetic lawyers in the California Department of Justice, the Task Force has issued what is by any measure the most important study of and proposals for Black Reparations to date: a 500-page Interim Report issued in June 2022. The articles in this Symposium Issue provide scholarly, non-partisan guidance to the Department of Justice as it prepares, on behalf of the Task Force, a final report on Black Reparations which is mandated by Assembly Bill 3121 to be delivered to the State Legislature before July 1, 2023. Department of Justice lawyers have had an opportunity to consult with the student authors in a timely fashion prior to the publication of this Symposium.

Collectively, the articles are responsive to two major perceived defects in the Interim Report--the absence of framings and the lack of specificity. Discursive framings are critical to our understanding of the atrocity. They also help us comprehend how, or even whether, we ought to proceed with redress. Specificity is also important to any redress initiative; it clarifies what precisely the victim is getting. These defects--the absence of framing and specificity--are not unrelated. A brief discussion of the deficiencies may be useful at this point.

In his public announcement about the Interim Report, California Attorney General Rob Bonta articulated the state's reason for redressing slavery: “Without accountability, there is no justice. For too long, our nation has ignored the harms that have been--and continue to be--inflicted on African Americans in California and across the country.” This statement of purpose is poorly framed and, hence, too vague to convey any useful information. Neither the attorney general nor the Interim Report itself specifies what the state expects to accomplish with slave redress. Is it victim compensation, racial reconciliation, or another purpose? In other words, what model or form of redress is California deploying? Without a predicate for redress, it is difficult to determine the basis for and likely effectiveness of the proposed redress program. Engaging the Models of Redress clarifies these matters. This exercise yields a more concrete understanding of what Attorney General Bonta means by justice--e.g., compensatory justice, retributive justice, or restorative justice--and forces the state to reflect upon the “best” means of marketing its redress program to the citizens of California. Critically important, by considering the Models of Redress, the state avoids unwittingly framing redress in a way that helps opponents of redress defect the program.

As the official name of the Task Force explicitly indicates, reparations are the main component of California's redress program. However, the deployment of reparations laid out in the Interim Report is rather murky. It fails to make crucial distinctions found in reparatory discourse that can, to a large extent, determine the success of redress. Are community-directed reparations (“rehabilitative reparations”), whether monetary or nonmonetary, better suited to achieve the purpose of redress--which, again, we do not know what California's purpose is--than individual reparations (“compensatory reparations”)? Whether monetary or nonmonetary, the latter entails difficult questions of identifying specific victims and calculating and distributing payments. On the other hand, there is evidence to suggest that compensatory reparations, if structured as a stream of supplemental income rather than the typical one-time payment, can effectively create individual wealth. But should compensatory reparations be restricted rather than unrestricted to protect the integrity of redress? The absence of this framing-- parsing through the Forms of Reparations contributes to the absence of specificity in many of the reparations the Interim Report proposes.

Although the Task Force's interim reparations are presented with the expectation that the legislature is unlikely to accept all of them, the vast array of proposed reparations might suggest to lawmakers, especially those on the fence, that Black Reparations is too large a subject to try to tackle. Indeed, the Interim Report seems to express the hopeful belief, held by victims and well-respected scholars, that reparations mean nothing unless they transform the American social order, unless they change the relationship between race and power in our society, and unless they eradicate the norms and conditions that gave rise to the atrocity in the first place. This mainly means eliminating White hegemony. Accomplishing this goal calls for a regime of “transformative reparations”--reparations that seek transformative racial justice or social transformation--rather than “prudential reparations”--reparations that carry transformative properties and, hence, move in the direction of social transformation. Although the Interim Report does not explicitly engage this important discussion, its tenor and tone unquestionably adopt transformative reparations sub silentio. The final report ought to confirm or deny this implication by engaging a particular frame-- Transitional Justice. Importantly, the Task Force must understand that reparations have never been used successfully to transform a social order. Social transformation may be better suited for a country's symmetrical program of development and social service.

After discussing applicable redress frames--Models of Redress, Forms of Reparations, and Transitional Justice--in greater detail in Part II, I will summarize relevant features of the Interim Report in Part III and highlight the articles contained in this collection in Part IV. Each article offers insights into the Interim Report and redress discourse more generally. The articles do not cover every redress issue, many of which, including the constitutionality and economics of Black Reparations, have been engaged elsewhere.

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Against the backdrop of a masterful Interim Report, the Task Force must now write a final report that is more focused and detailed in recommending how California should redress slavery. Framing is essential as Klier's article instructs. Hence, the final report should at the outset clearly indicate what California hopes to achieve by redressing slavery--victim compensation (Tort Model) or racial reconciliation (Atonement Model) appear to be the major candidates. The final report should then propose a reparative program (Forms of Reparations) that supports California's stated redress purpose and, as Kawahara's article suggests, make clear the relationship between its reparative regime and the race problem in California so as not to raise false expectations (Transitional Justice). Each of the remaining articles deploys these frames in varying degrees.

The articles either explicitly or suggestively find racial reconciliation to be a superior redress objective than victim compensation. Racial reconciliation gives redress a restorative rather than a compensatory or punitive purpose. It will also bring more people on board. Californians of probity and intelligence will have added incentive to go through the turbulent redress process knowing that redress is not a zero-sum endeavor.

Should the final report opt for racial reconciliation, it will have to decide whether it will proceed under a modified version of the Atonement Model; that is, forgo forgiveness. If it proceeds in this fashion, the genuine apology will not ask for forgiveness. The apology will confess the deed, admit that the deed was an injustice, and repent but not ask for forgiveness. Elie Wiesel argues that asking for the victim's forgiveness enriches the moral quality of the apology. Robertson argues that it disempowers the victims while empowering the perpetrator. The Task Force, which represents both the victims and the perpetrator, will have to decide this issue before sending the matter to the lawmakers.

The articles offer a wide range of compensatory and rehabilitative representations designed to make the state's apology believable. McGee proposes abolishing the prison-industrial complex that fuels mass incarceration of millions of Black Americans and using the savings to help fund rehabilitative reparations to tackle conditions that cause crime. Presumably, these funds would also help finance unrestricted compensatory reparations as supplemental income.

In contrast to McGee's unrestricted compensatory reparations, Robertson argues for restricted compensatory cash reparations in the form of housing vouchers that could only be used for rent, mortgage, or utility payments. These housing vouchers are in addition to housing reparations recommended in the Interim Report, which include a state-subsidized low-interest mortgage program for qualified Black applicants and a program for compensating Black individuals whom the state had forcibly removed from their homes. Robertson also recommends the establishment of a Truth and Reconciliation Commission which would work in conjunction with the Atonement Model toward racial reconciliation.

Gaudet and Couchman believe rehabilitative reparations are the best vehicles for solidifying the state's apology. Gaudet recommends rehabilitative reparations that establish a system of state-wide clinics wherein healthcare professionals can study and treat racial disparities in the healthcare system. These clinics would have first-rate facilities, equipment, and medical staff led by Black Americans. Couchman's reparative regime would give lactation agency to the community of Black women. Her rehabilitative reparations include restricting advertising of breastmilk substitutes and supplementations, removing exemptions from California breastfeeding accommodation laws that disproportionately impact Black women, improving perinatal care and education, and assisting Black women with part-time custody who wish to maintain their milk supply between visits.

Each article proposes prudential, rather than transformative, reparations. The reparative regimes are designed to help create a “radically different society.” Each takes a step toward changing the social order. The final report will likewise have to decide whether it will frame redress as an attempt to effectuate Transitional Justice or as a step toward Transitional Justice.

Collectively, the articles suggest an array of paths forward available to the Task Force. Decisions will have to be made. Each decision should be carefully framed. The stakes are extremely high. For if redress fails in California, it will likely never be taken seriously in this country.

Roy L. Brooks. Warren Distinguished Professor of Law (1995-present) & University Professor (2005-2006; 2018-2019), University of San Diego School of Law.