Transitional Justice in the United States

The nation-wide protests sparked by the killings of Ahmaud Arbery, Breonna Taylor, and George Floyd, and led by the Black Lives Matter movement, demand an end to police brutality and racial injustice in the United States. To meet these demands, the United States needs to pursue transitional justice. Transitional justice entails dealing with wrongdoing – past and present – in order to transform the relationships among citizens and between citizens and state officials.

Though the term transitional justice is not widely known in the United States, elsewhere dozens of societies with long histories of crippling political dysfunction, repression and/or, periods of prolonged violence have established processes of transitional justice to deal with past wrongs as part of a transition away from conflict and repression.

For example, South Africa, as part of its transition from apartheid to democracy, established a Truth and Reconciliation Commission to investigate and document apartheid-era killing, abduction, torture and severe ill-treatment. Colombia is presently implementing a comprehensive transitional justice system, as required by the terms of the Final Agreement ending more than fifty years of conflict between the Colombian government and the rebel group the Revolutionary Armed Forces of Colombia (FARC). The Colombian system includes a truth commission, a set of judicial bodies to investigate gross violations of human rights and violations of international humanitarian law, and a unit to search for those deemed missing during the conflict. South Africa and Colombia are but two examples. Processes of transitional justice can take many forms, from institutional reform to criminal trials, truth commissions, reparations, and memorials.

While we might not label the United States as “transitional” because it is an established democracy, when we examine the underlying causes of certain key conflicts in American society, the similarities to societies requiring transitional justice are evident. The United States shares with societies like South Africa three features that I argue in my book, “The Conceptual Foundations of Transitional Justice,” give rise to the need to pursue transitional justice.

The first such feature is what I call pervasive structural inequality. This exists when rules and norms structuring political, economic, legal, and cultural interactions that institutionally impede certain groups of citizens from avoiding poverty, participating in political processes, and shaping rules and norms of interaction. In the United States today, the racial wealth gap is the same today as it was in 1968, and Black people are contracting the coronavirus and dying from COVID-19 at disproportionately high rates due to structural factors.

The second is normalized political wrongdoing. This refers to situations wherein violations of human rights become a basic fact of life for members of specific groups. The hashtags used to remember the names of Black Americans who have been killed engaging in mundane activities such as jogging, going to a store, or even sleeping, underscore the constant threat of violence at the hands of white private citizens or the police that Black people in the United States face.

The third is serious existential uncertainty. Such uncertainty exists when the future of a community in crisis is unclear. We collectively do not know if the structural reform and accountability for perpetrators of violence against Black Americans being demanded will be achieved. This political moment and these protests seem different, even at the same time that such change is not a forgone conclusion and skepticism remains.

Processes of transitional justice aim to change how citizens interact with one another and with state officials to reduce structural inequality and eliminate normalized wrongdoing. In order for change to happen, the need for change must be widely and publicly acknowledged. In order for change to be effective, it must be based on an accurate understanding of why relationships are unequal and what enables normalized wrongdoing. This is why transitional justice deals explicitly with past and present wrongdoing, and it is also why the other main aim of transitional justice is to do justice to the victims of such wrongdoing and hold accountable perpetrators.

Transitional justice provides a framework for understanding the connections among the diverse calls from citizens and officials at the present moment for actions such as radical police reform and accountability; creation of a Truth, Racial Healing, and Transformation Commission; removal of confederate statues and symbols; and reparations. These efforts stem from a general recognition that relational transformation is needed and that how we treat our past shapes our present and future.

Transitional justice also allows us to see the connections between current efforts and steps towards transitional justice that have already been taken in the United States. Indeed, many ongoing initiatives can be framed as examples of transitional justice. The Maryland Lynching Truth and Reconciliation Commission established in 2019 for example, is currently investigating racially motivated lynchings in that state. The Equal Justice Initiatives’ Legacy Museum: From Enslavement to Mass Incarceration, documents America’s history of racial injustice, while its National Memorial for Peace and Justice is a space dedicated to acknowledging and memorializing victims of lynching; both were opened in 2018 and can also be viewed as examples of transitional justice. Finally, Ta-Nehisi Coates has argued for the necessity of reparations in print in 2014 and before the House of Representatives in 2019. Reparations are often a key component of transitional justice efforts.

Situating the present moment in the United States within the context of the global practice of transitional justice yields important insights. First, we can learn from the experiences of other communities to understand what has been effective and avoid existing limitations in the scholarship and practice in this field. For example, there is a robust empirical literature documenting the impact of different kinds of transitional justice processes globally.

We can also study the structure of specific efforts like police reform and abolition in other contexts. For example, fundamental change in policing was a core demand of the Nationalist community in negotiations to end “The Troubles” in Northern Ireland. The 1998 Belfast/Good Friday Agreement included a provision to establish an independent commission to look at policing. The commission’s 1999 Patten Report produced a comprehensive set of recommendations on human rights, accountability, recruitment, and the function of policing in a peaceful society; recommendations were implemented in subsequent legislation. Indeed, Martin Flaherty recently argued in Just Security that Northern Ireland’s demilitarization and other policing reforms could provide a blueprint for the United States.

Finally, transitional justice theory and practice provides resources for identifying and addressing core dilemmas that the pursuit of transformative change generate. The question of how to structure the reform of institutions (e.g., the police or the judiciary) that is truly transformative, but at the same time must inevitably rely on the knowledge and expertise of at least some of the members of compromised professions, represents one example of such a dilemma transitional justice has already grappled with.

Transitional justice provides an important lens for ongoing national conversations in the United States about police brutality and racial injustice. Transitional justice asks us collectively to imagine together what transformed political relationships might look like here, to discuss what wrongs additional processes of transitional justice might take up, and to advocate for those processes of transitional justice best suited to our needs right now. All Americans, including White Americans like myself, should participate in this conversation. But the conversation should be led by Black voices and activist groups, drawing on the knowledge, expertise, and momentum that already exists. For example, the Movement for Black Lives has identified what needs to change to combat structural inequality and normalized wrongdoing. We must listen first and take action second.

To fulfill the call for an end to racial injustice, the United States must pursue transitional justice.

(Editor’s Note: Readers interested in the potential of pursuing transitional justice in the United States as a means of addressing systemic racial oppression may also be interesting in this recent Just Security article by Zinaida Miller, and this recent article by Yuvraj Joshi).

Image: An anti-Trump activist speaks at Black Lives Matter Plaza near the White House July 4, 2020 in Washington, DC. Anti-Trump activists rallied on Independence Day to voice their disapproval of President Trump’s handling in the wake of the death of George Floyd. (Photo by Alex Wong/Getty Images)

 

About the Author(s)

Colleen Murphy

Colleen Murphy is a Professor of Law, Philosophy, and Political Science at the University of Illinois at Urbana-Champaign, where she also serves as Director of the Women and Gender in Global Perspectives Program in the Illinois Global Institute. Follow her on Twitter(@drcolleenmurphy).