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Charles J. Ogletree

excerpted from: The Current Reparations Debate , 36 U.C. Davis Law Review 1051-1072, 1058-1060 (June, 2003)(62 Footnotes omitted)

There is, then, a certain irony to the charge of "victimology." To the extent that it is a critique of an essentialist strain in civil rights discourse that imputes harm to African Americans as a group, it may have some bite. But where African Americans remain the uncompensated victims of criminal violence, victimology not only turns reality on its head, but also buys into what might be called the aesthetics of criminal justice.

First, victims of crime deserve to be compensated. As Attorney General Janet Reno stated during her address to a victims' rights conference on August 12, 1996:

I draw most of my strength from victims, for they represent America to me:people who will not be put down, people who will not be defeated, people who will rise again and again for what is right . . . . You are my heroes and heroines. You are but little lower than angels.

Professor David Garland of NYU Law School echoes this sentiment: "the centre of contemporary penal discourse is . . . the individual victim and his or her feelings." A central tenet of the modern penal revolution is the payment of restitution to victims for the crimes committed against them. Victims' groups use "closure" to justify the involvement of the relatives and descendants of the deceased in criminal cases many years after the crime was committed. In fact, one of the remarkable things about the victims-of-crime movement has been its extension of the definition of victim from the person attacked, robbed, or murdered, to that person's family, descendants, and community as well.

It is clear that the surviving victims of the Tulsa Race Riot of 1921 have not had the closure so earnestly demanded by other victims. Time is not the obstacle here. While other victims may wait decades for a criminal on death row to be executed, few conservatives deny their right to closure at the end of the waiting period. Now, I am far from endorsing the death penalty, and am not a particular fan of the "closure" argument. So rather than accept this view wholeheartedly I would suggest that conservatives be estopped from using the "get over it" argument when the victims of racialdiscrimination are tangible and identifiable. Citizens of the United States who have suffered harm have a right to seek justice.

Second, Attorney General Reno's comments make clear that the demand for reparations--or restitution--is precisely the end of victimhood. It represents the moment at which we assert our independence, personal integrity, and humanity. By asserting our right to reparations, we assert the right to be respected as individuals and as equals, and treated accordingly. We assert the right to receive the compensation due to anyone who has suffered a deprivation, whether through crime or other wrongdoing. So what differentiates the claims of reparations advocates from the claims for restitution advanced by victims' rights advocates?

I think, as a criminal lawyer, that a cursory examination of the political culture that emerged since the late 1970s is helpful. In the 1950s and 1960s, blacks' demands for equal treatment under law and social equality were regarded as justified and meritorious. However, as formerly poor and under-educated populations began integrating into mainstream society, the liberal consensus that had previously dominated the political landscape began to break down. Politicians, whose power was limited by the institutional nature of the New Deal regulatory state, saw that their ability to directly effectuate social change was now limited.

But one area they could make an immediate impact on was penal policy. AsProfessor Jonathan Simon of the University of Miami Law School suggests, the "severity revolution" ushered in during the 1980s used crime as a codeword to target poor and predominantly minority populations. At the same time, this pressure group used victims' rights as a means of representing the supposedly threatened white community. In modern jargon, the undeserving poor-- "welfare kings and queens"--suffer from victimology. Nice middle class folks have victims' rights. This is represented aesthetically by, on the one hand, television commercials of Willie Horton used to scare white voters during the 1988 presidential campaign, and on the other hand by the presence of white victims' rights advocates on political platforms.

Certainly, some essentialist arguments about race and social justice mistakenly assume that all descendents of slaves are oppressed or deserve some kind of special treatment. I agree that there may be individuals who have made it just fine through the stigma of slavery. Part of the purpose of the reparations movement is to open up a discussion of economic justice that takes race into account, and poses questions of responsibility and accountability that are hard for both blacks and whites. Reparations also ask us to account for our behavior towards all communities of color and to explore the moral consequences of our interactions with them.

. Professor Ogletree is the Jesse Climenko Professor of Law at Harvard Law School and the Associate Dean of the Clinical Programs.