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Excerpted From: Alexis Karteron, Reparations for Police Violence, 45 New York University Review of Law and Social Change 405 (2021) (116 Footnotes) (Full Document)

AlexisKarteronIn the United States, reparations are often debated but rarely come to fruition. In the American public imagination, slavery is the subject matter most closely tied to the concept, and reparations are defined as money. Given the focus of scholarship, works in the popular press, and political debate about these topics, these associations are unsurprising. But reparations can and should be thought of more expansively.

There are many definitions of “reparations.” Monetary payments are the paradigmatic example, such as the U.S. government's provision of monetary compensation to the Japanese Americans it interned during World War II. Similarly, North Carolina offered monetary reparations to victims of its eugenic sterilization program, pursuant to which more than seven thousand people were sterilized by the state between 1929 and 1975.

But reparations sometimes take other forms, such as apologies, legislative reform, educational efforts, and truth and reconciliation commissions. With an expansive definition of reparations in mind, one can more easily find examples of reparations in the United States that addressed ills beyond slavery. In 1993, the United States government offered an apology to descendants of native Hawaiian groups for the annexation of the Hawaiian Islands in 1893. President Clinton offered an apology to the victims of experiments conducted by the U.S. Public Health Service in Tuskegee, Alabama that left Black men with syphilis untreated for decades, and he acknowledged the far-reaching impact the study had on the African American community. In 2001, an Oklahoma commission recommended numerous forms of reparations including and beyond monetary compensation for the 1921 race massacre in Tulsa, Oklahoma, during which at least three hundred Black people were killed by a white mob in Greenwood, a prosperous neighborhood known as “Black Wall Street.” Since then, the Tulsa Race Massacre Centennial Commission has sponsored efforts to create a Black Wall Street Mural, renovate and expand the Greenwood Cultural Center, and create a curriculum for the Tulsa public schools about the massacre. In addition to examples of nonmonetary reparations, these are also all examples of reparations that are directed not solely to the direct victims, but to the larger impacted communities.

Notably, none of these examples addresses the ills of the criminal legal system. But reparations should be extended to that context. The extraordinary harms of the criminal legal system are now widely discussed and understood in both academic circles and popular culture. From the imprisonment of innocent people to the effects of mass incarceration more generally, the criminal legal system is often destructive. Police violence in particular can cause lasting psychological harm. Indeed, police contact alone can result in trauma and anxiety symptoms. Importantly, police violence can be destructive to both its immediate victims and the communities from which they come. The racial justice protests that took place in the summer of 2020 vividly illustrate this reality. After a Minneapolis police officer killed George Floyd by kneeling on his neck for nine minutes and twenty-nine seconds, protestors took to the streets, and Minneapolis burned for days because of the pain the killing inflicted on the entire community. Indeed, the brutal killing reverberated around the world and caused people who had never taken the idea of racism in policing seriously to reconsider.

The goal of this Article is to urge activists, community organizers, lawyers, and other actors to broaden the conversation about redress for police violence to include reparations directed to impacted communities. Reparations schemes have the potential to explicitly recognize and attempt to remedy the widespread harm that police violence often creates. Traditional responses to police violence do not do this because they either do not address the harm to the entire impacted community, or they are too modest to be fully effective. For example, despite many hurdles, lawsuits may compensate direct victims and cost the governments that employ police officers millions. Police departments or local governments sometimes adopt policy reforms, such as the creation of civilian police oversight agencies, with the aim of staving off future abuse. Individual police officers sometimes--but rarely--face criminal prosecution and incarceration. The U.S. Department of Justice investigates a small number of police departments, resulting in consent decrees or other resolutions that create policy changes and reforms. But all of these tools are often met with resistance from police departments and do little to address the community-wide harm created by police violence.

Calls for change in response to police abuse are beginning to take new forms. The demand to defund the police--a push for reallocating resources away from police departments and toward other priorities--is now popular in some corners and is a frequent topic of political conversation. Indeed, well before George Floyd's killing, the Movement for Black Lives responded to police violence by calling for widespread policy changes beyond police departments. But defunding the police is part of a long-term abolitionist vision for the future; police departments are not leaving communities anytime soon. When inevitable episodes of police violence erupt, reparations should be included in the conversation as they offer a useful framework for recognizing and implementing meaningful responses to abusive practices that create community-wide harm.

[. . .]

Efforts at repair in response to abuse and violence are often focused exclusively on the victims. Only direct victims have standing to pursue relief through § 1983 or tort lawsuits. Systemic change is effectively unavailable in the vast majority of jurisdictions through private litigation due to stringent limits on the pursuit of equitable relief. The Justice Department's Civil Rights Division has the authority to pursue systemic relief, but it can only reach a tiny number of jurisdictions. Prosecutions of police officers in response to violence are rare by both state and federal entities. Civilian oversight, in the few places it exists, is usually weak. Most importantly, none of these tools account for the pain and harm inflicted upon the community at large by notorious episodes of police violence. Reparations for police abuse fill that gap, providing a potential pathway to meaningful redress for those besides the most immediate victims.

Associate Professor of Law, Rutgers Law School. Mary Clare Patterson provided excellent research assistance.

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