Charles J. Ogletree
excerpted Wrom: YXOEAIJJPHSCRTNHGSWZIDREXCAXZOWC
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 racial discrimination
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
But one area they could make an immediate impact on was penal policy.
As Professor 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.