D. Formal Truth and Reconciliation Processes
Racial justice in America requires the creation of formal truth and reconciliation processes at the national, state and local levels. What forms these processes will take is an open question, and will no doubt vary depending on the history of racial oppression in any particular jurisdiction. A nation or community engages in the necessary work toward healing only when it undertakes a sincere effort to acknowledge its role in past atrocities and to atone for the harm done to its victims.
1. Truth and Reconciliation in America
a. National Efforts
Congress's formal acknowledgement in 2008 and 2009 of the truth about the nation's history of slavery, Jim Crow and racial oppression are important first steps. However, more must now be done at the national level to begin tackling the sources of the persistent, systemic racial injustices that still exist in America.
In her 2014 book, Crimes Against Humanity in the Land of the Free: Can a Truth and Reconciliation Process Heal Racial Conflict in America?, Imani Michelle Scott proposes the creation of an official U.S.-based truth and reconciliation process (U.S. TRP) "to move the nation towards healing interracial relationships, improving its international standing as a peace builder, and strengthening its commitment to human rights throughout the world."
Among other things, Scott suggests, the U.S. TRP could:
Review previous initiatives and recent advancements in worldwide truth and reconciliation efforts for guidance ...;
Establish an oversight committee to elicit ... [options] that incorporate local concerns ...;
Facilitate the education of the American populace about the United States' ... [history of] racial oppression ...;
Initiate and continue a campaign of awareness programs to highlight the contributions and achievements of blacks throughout the nation's history ...; and
Establish specific initiatives that would involve the nation's citizenry in ... activities to assure equality, fairness, and justice for all Americans.
A U.S. TRP is as necessary now, in the second decade of the twenty-first century, as it ever has been: "It is 2014 in the United States of America, but sometimes I wonder if it is really 1914--or may be even 1814, when blacks in this country were routinely targeted, hunted, and maimed or murdered by whites," Scott suggests. "[U]ntil this nation adequately addresses this disturbing history, acknowledges the social ordeals it continues to inflame, and provides a way for all in our society to work through the [conflicts] ..., U.S. citizens will forever be caught in a cycle of discord, tension, amoral conduct, and animosity based on race ...,"
b. State efforts
More must be done at the state and local levels as well, beginning with acknowledgement of the hard truths and realities of racial discrimination and oppression in their own states and communities. The events in Charlottesville, Virginia in August 2017, when white supremacists clashed in violent confrontations with counter-protestors, opened the eyes of many to the necessity of addressing matters of race relations in America. The idea that such efforts are necessary is gaining traction, as reflected, for example, in the publication, following the Charlottesville riot, of "Virginia Needs a Truth and Reconciliation Commission on Race" in The Washington Post by mainstream Virginia Democrat, Tom Pereillo.
As state and local governments consider how to structure processes of truth and reconciliation, they may look to other efforts that have preceded them. In 2013, for example:
The governor of Maine and the five tribal chiefs signed as equals to authorize the [the Maine Wabanaki Child Welfare Truth and Reconciliation] Commission to investigate whether or not the removal of Wabanaki children from their communities has continued to be disproportionate to non-Native children and to make recommendations ... that "promote individual, relational, systemic and cultural reconciliation."
The Commission sought to implement the intent of the federal Indian Child Welfare Act (ICWA), which was passed in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families," but had been poorly applied at the state level. After two years of research, investigation, and heartfelt testimony, the Commission accomplished much in the way of enabling truth-telling, and offered in its 2015 Report the following suggestions for moving forward:
From our perspective, to improve Native child welfare, Maine and the tribes must continue to confront:
1. Underlying racism still at work in state institutions and the public;
2. Ongoing impact of historical trauma, also known as intergenerational trauma, on Wabanaki people that influences the well-being of individuals and communities;
3. Differing interpretations of tribal sovereignty and jurisdiction that make encounters between the tribes and the state contentious.
c. Local and/or Private Efforts
Another effort, the Greensboro Truth and Reconciliation Commission (GTRC), occurred at the local level, and is especially noteworthy because it was a grassroots initiative by private citizens unsupported by public officials (indeed, the government resisted the efforts). This demonstrated that governmental involvement is not always necessary in order to initiate truth and reconciliation processes.
The GTRC formed in 2004 to address the tragic events of November 3, 1979, when a protest by the Communist Workers Party against the Ku Klux Klan escalated into a riot where members of the Klan and American Nazi Party shot and killed five protesters and wounded ten others. During the murder trials of six Klan and Nazi members the next year, evidence came to light that "the Greensboro police, and perhaps the federal government, were aware of the probability of violence at the rally but did little to prevent it." Those six were acquitted on self-defense claims by all-white juries, as were the defendants in a 1984 federal criminal trial, and in a 1985 civil trial, "a North Carolina jury found two Greensboro police officers and six others ... liable for the "wrongful death" of one of the demonstrators ... and ordered them to pay nearly $400,000 in damages."
By the time of the twentieth anniversary of the killings in 1999, "many in the Greensboro community still did not feel that justice had been served," so a coalition of people in the community "launch[ed] a democratic process that engaged the community in nominating and selecting the seven members of this independent Commission, empaneled on June 12, 2004." After two years of "assess[ing] the evidence gathered from the three trials, internal records from the Greensboro Police Department and federal law enforcement, newspaper and magazine articles, academic literature, and some two hundred interviews and personal statements given in private and at our public hearings," the GTRC presented its Final Report to the public on May 25, 2006, commenting, "[w]e view this report as the beginning of a citizen effort toward investigation and dialogue, rather than the end."
The GRTC, believing "positive steps toward reconciliation, justice and reparations can be undertaken," offered a number of recommendations in the Final Report, summarized into the major categories of: (1) Acknowledgement; (2) Institutional Reform; (3) Criminal Justice & Civil Remedies; and (4) Citizen Transformation/Engagement.
The Report concludes with thoughts regarding "The Way Forward":
To other communities considering processes to seek the truth and work for reconciliation around tragic, unjust events in their own histories, we heartily recommend the truth and reconciliation model as such a tool .... Our individual and collective commitment to the truth helped us persevere. And the human stories and emotions we encountered along the way moved us to do our best to leave behind a legacy we hope will serve Greensboro for years to come .... [W]e hope that this process also serves as a learning tool for others in this country who, like Greensboro, are burdened by a legacy of hurt and inspired by the possibility of honestly coming to terms with their own history.
The GTRC is a fine example of the sort of highly meaningful effort that can be put forth by concerned citizens dedicated to seeing justice served, even when the government itself is doing little to assist, or is even resisting, those efforts. Those looking for a model on how to proceed with their own local or state efforts would be well-served to review the GRTC's impressive comprehensive online Final Report.
2. Lessons from International Experience
In exploring what sorts of processes would be appropriate in the United States, it is useful to look also to the experiences of other nations. Since the much-lauded Truth and Reconciliation Commission in South Africa in the mid-1990s, for example, "there have been over 1,000 other truth-and-reconciliation commissions established across the world, from Chile and Guatemala to Nepal and Sierra Leone."
The Undead Past, a special report in the January/February 2018 issue of Foreign Affairs, explores the issue of atonement in the context of atrocities that have occurred over the past century in six different nations:
How do nations handle the sins of the fathers and mothers? Take genocide, or slavery, or political mass murder. After such knowledge, what forgiveness--and what way forward? ... There have been all too many crimes in all too many places, but six cases stand out--two of genocide [Germany and Rwanda], two of political mass murder [Russia and China], and two of enduring racial oppression [South Africa and the United States] .... [E]ach country has processed its tragic past [in its own way]. Together, they reveal interesting patterns and lessons. Worst practices are easy to identify: denying what actually happened. Best practices are more scattered, but ... responsible engagement with the past ... [and] facing a problem ... directly and brutally ... is a smart idea after all.
a. Listening and Acknowledging
A common theme among nations that have engaged in successful truth and reconciliation processes is the importance of the perpetrators' listening to the victims and acknowledging the transgressions that have occurred; several nations have been effective in this regard.
In South Africa, for example, the Truth and Reconciliation Commission (TRC) headed by Archbishop Desmond Tutu accomplished much in the way of healing and restoring dignity to black South Africans brutalized by the minority white government's apartheid regime. "The TRC's work was premised on the idea that truth was an essential first step toward healing," Sisonke Msimang explains further in All is Not Forgiven: South Africa and the Scars of Apartheid:
For the first time in South Africa's history, whites would be forced to listen to blacks. Victims even had the right to question perpetrators, who in turn were encouraged to tell the truth in the interests of national unity and reconciliation. For many black people whose lives had been defined by taking orders from whites, whose daily routines and living patterns had been shaped by the whims of whites, and whose opinions and needs had been dismissed by whites and by the system of apartheid they had built to protect themselves, the TRC offered more than the truth; it offered a chance to regain their dignity.
In Rwanda, "one of the most striking features of [the nation's] approach" following an episode of ethnic genocide in the mid-1990s where more than 800,000 of a total population of seven million people were murdered, "has been the state's concerted effort to heal old wounds," Phil Clark suggests in Rwanda's Recovery: When Remembrance Is Official Policy. "Indeed, substantial government intervention has been the key to the country's recovery--a point reinforced by comparison with neighboring Burundi, Congo, and Uganda, where the absence of systematic official responses to mass atrocity has allowed deep societal divisions and violence to persist." Further:
Perhaps the most ambitious--and most controversial--of the Rwandan government's responses to the genocide was the prosecution of 400,000 genocide suspects in 12,000 community courts called gacaca, a process that took place between 2002 and 2012. These courts, which sat every week under trees and in village courtyards across Rwanda, heard more than one million cases and were overseen by lay judges who could hand down sentences as severe as life imprisonment (although most consisted merely of community service).
Underpinning the [success of the] gacaca system was the belief that justice is indispensable to reconciliation, that without a public acknowledgment of crimes and the punishment of all levels of perpetrators, anger and resentment would fester and could lead to further mass violence.
In Germany, "Germans ultimately had to confront what the Hitler regime had done in their name," explains Richard J. Evans, in From Nazism to Never Again: How Germany Came to Terms With Its Past. "The process of doing so was halting and hesitant at first, and complicated by the country's division during the Cold War." Since around the time of the 1989 fall of the Berlin Wall, however:
Germany has accomplished an undeniably impressive feat: a collective acceptance of moral responsibility for the terrible crimes of its recent past. The country has given material expression to this acceptance by preserving physical traces of the Nazi era and building fresh memorials to its victims. These memorials serve more than just a symbolic function: in the face of increasingly influential far-right groups and parties that reject contemporary German norms of tolerance, seek an end to what they consider the "shaming" of Germans, and encourage pernicious forms of historical revisionism, these monuments to the past act as constant, unavoidable, and visceral reminders of the truth ....
Such physical reminders of the crimes of Hitler and the Nazis confront Germans every day, and while a small minority may not like this, they have no choice but to put up with it. When it comes to accepting the sins of the past, there is, in the end, no alternative for Germany.
In distinct contrast to South Africa, Rwanda and Germany, the nations of China, Russia and the United States have done poorly in providing adequate responses for their respective atrocities. There remains in each nation a significant portion of the victimized population who have simply never had their grievances addressed or acknowledged in a meaningful way.
Regarding China, given its current relative political and economic stability, "[s]omeone unfamiliar with the country might be forgiven for assuming that it had reckoned with its recent past and found a way to heal its wounds and move on. Far from it," suggests Orville Schelle, in China's Cover-up: When Communists Rewrite History. Rather, the Chinese Communist Party (CCP) "is wagering that it can undo, or at least dodge, the long-term damage it has inflicted on the Chinese people by simply erasing history":
[A] visitor wandering the streets of any Chinese city today will find no plaques consecrating the sites of mass arrests, no statues dedicated to the victims of persecution, no monuments erected to honor those who perished after being designated "class enemies." Despite all the anguish and death the CCP has caused, it has never issued any official admission of guilt, much less allowed any memorialization of its victims.
It is unlikely that the CCP will engage in any sort of campaign of openness anytime soon, since that would "risk undermining the party's legitimacy and its right to rule unilaterally." China has thus become "the People's Republic of Amnesia," where "[a] single act of public remembrance might expose the frailty of the state's carefully constructed edifice of accepted history, scaffolded in place over a generation and kept aloft by a brittle structure of strict censorship, blatant falsehood and willful forgetting." And if too much more time passes, Schelle soberly suggests that even if some loosening were to occur someday, "its impact might be less than dramatic, because so much has been suppressed and repressed. In the words of the dissident Liu Xiaobo: Eyes kept too long in the darkness do not easily adapt to dazzling sunlight when it suddenly pours through a window."'
And in Russia, following the communist government's fall in 1991, "it seemed that history would be laid bare. Declassified archival documents demonstrated that the country had been run by a group of criminals led by Stalin and that the mass murders they perpetrated were crimes against humanity. Unfortunately," laments Nikita Petrov in Don't Speak, Memory: How Russia Represses Its Past, "the new Russian government, busy with more immediate problems, never got around to passing a legal verdict on the Soviet past and calling its crimes by their names."
Paradoxically, since 1991 there has been a rise of nostalgia for Stalin, who was responsible for the deaths of between ten million and 12 million people; and Russian leadership today--as contrasted with the 1987 glasnost (liberalization) campaign, when Soviet leader Mikhail Gorbachev commented that "Stalin had committed enormous and unforgiveable' crimes"--is vague or unforthcoming on the Soviet past and leaders in particular. As a result of these positions, together with "the growing human rights violations in Russia and the fact that the archives containing the records of the security services' crimes remain closed," Petrov reports that "the Russian public has been left disillusioned by lackluster economic reforms, widespread official corruption, and politicians who have turned their backs on the people .... As long as Russia refuses to officially acknowledge the darkness in its past, it will be haunted by ideas that should have died long ago."
As for the United States, Bryan Stevenson explains:
[W]e have in this country this dynamic where we really don't like to talk about our problems. We don't like to talk about our history. And because of that, we really haven't understood what it's meant to do the things we're doing. We're constantly running into each other; we're constantly creating tensions and conflicts. We have a hard time talking about race. And I believe that's because we're unwilling to commit ourselves to a process of truth and reconciliation.
b. Addressing Economic Concerns
Another common theme among the nations surveyed is the importance of providing for the victims' economic concerns, both in terms of compensating for past damages and enhancing prospects for future opportunities.
In South Africa, while the TRC was effective in allowing the victims to speak and be heard, as discussed above, it is possible to see with the benefit of hindsight that the TRC did not do enough to hold the oppressors fully accountable for the longer-term systemic effects of apartheid's "systematic dispossession of blacks, ... through forced removals from cities, separate and unequal education, the deprivation of basic democratic rights, and, most important, the explicit reservation of certain kinds of jobs for whites and the exclusion of black people from certain categories of study and employment." The effects of the TRC's shortcomings in this area are evident in the dire circumstances of many black South Africans today.
Sisonke Msimang suggests:
A genuine truth-and-reconciliation process would have aimed to address not just serious human rights violations but also the socioeconomic effects of apartheid .... [A more effective TRC] would have calculated the economic costs of apartheid for black South Africans and set aside resources to redress them. It would also have looked at such issues as land seizures, forced removals, pass laws, and [homelands] with a view toward working out financial compensation packages, which could have been paid in cash or taken the form of state benefits, such as pensions or grants for higher education. To fund these payouts, the new government could have made arrangements with large banks, mining companies, and other institutions that profited handsomely from apartheid .... To put it simply, in the years after 1994, the [TRC] ought to have been bolder.
Similarly, in the United States, still-present systemic inequalities have led to the situation where "[t]he income gap between black and white Americans remains every bit as extreme as it was five decades ago, at every income level. (Black households in 1967 earned an average of between 55-67 percent as much as white households.) Those ratios remain the same today," Paul Campos explains. Today the "median white household has about 13 times the wealth of the median black household--and much of that wealth is transferred between generations."
By marked contrast, Rwanda, through its truth and reconciliation process, has focused much more on the victims' long-term economic well-being, as Phil Clark writes:
Beginning shortly after the genocide, ... the Rwandan government undertook a four-pronged strategy to heal the country. This comprised commemoration, civic education, socioeconomic development, and reconciliation through justice .... Recognizing that socioeconomic inequality was a key driver of the genocide, the government also embarked on an ambitious development program, focusing on rural health care and education ....
When prompted to explain ... [the success of the process,] Rwandans tend to highlight two factors: the gacaca courts provided a release valve for people's anger and resentment, and the reduction in socioeconomic disparities between ethnic groups has taken the sting out of historical antagonisms.
And the leadership in China, for all of its censorship and restrictions on freedoms, has since undertaking market reforms in 1978 enabled more than 800 million people to escape poverty. Quality of life, in terms of satisfying basic needs, has improved dramatically. One might conclude that the CCP leadership has imposed something of a devil's bargain on the nation's population in order to maintain its iron grip on power: in exchange for relative economic prosperity, the government strictly limits other freedoms.
Conclusion
This article has argued that the time is now for Americans to engage in serious processes of Truth and Reconciliation: first, to truly acknowledge the Nation's four-hundred-year history of racial oppression, then, to attempt, through conscious acts of reconciliation and healing, to begin to atone for the massive harms done. If enough Americans of goodwill were to commit to such efforts, "we may be able," as James Baldwin says, "to end the racial nightmare, and achieve our country, and change the history of the world."
Foster Swift Professor of Constitutional Law & Professor of Law, Michigan State University College of Law.
