Not a Moment but a Movement: The Case for Transitional Justice in the U.S.

Transitional Justice in the U.S.
A Juneteenth rally in St. Paul, Minn. to demand reparations from the U.S. government. (Wikimedia Commons)

The United States has a history of exporting principles of human rights and democracy around the world.

Now the world looks on, in the wake of recent high-profile killings of unarmed Black Americans, including George Floyd and Breonna Taylor. Is the U.S. prepared to confront its own truths? 

As the Black Lives Matter (BLM) movement took to the streets to demand truth and justice for Floyd, Taylor and countless other victims of racially-motivated violence, they built on nearly a decade of grassroots organizing. The summer protests were BLM’s most successful to date, drawing approximately 20 million people to challenge anti-Black violence and systemic racism. 

In response, city, state and national lawmakers have proposed several measures for truth and justice, like truth commissions and reparations modeled in other countries. We think it’s about time the U.S. does the same. 

In 2020, the U.S. can and should learn from abroad. The U.S. needs transitional justice. 

What Is Transitional Justice?

The term “transitional justice” (TJ) refers to a range of policies that countries use to address past and ongoing violence and injustice.

Historically, many TJ tools, including trials and truth commissions, have been used during political transitions, when countries move from authoritarian rule to democratic government or from civil war to peace.  Yet, TJ can be an important practice whenever there has been a lack of accountability and redress for widespread and systemic harms—such as in the U.S.  

To illustrate, since the end of slavery nearly two centuries ago, the U.S. has tried to ‘just move on’—no matter the injustice.

As an example, promises to establish conditions of equality for newly-freed slaves during the brief period of Reconstruction were not realized, and Reconstruction was followed by nearly a century of racial segregation and discrimination known as the “Jim Crow Era.”

The historic Civil Rights Act of 1964 ended Jim Crow, prohibiting discrimination on the basis of race, color, religion, sex and national origin. However, the Act did not deal with the economic or social consequences of Jim-Crow-era racial segregation and discrimination. Nor did it address the legacy of racial terror lynchings

From an international perspective, the U.S. needs to pursue TJ. In addition to addressing victims and perpetrators, TJ is undertaken to fundamentally change how citizens interact—with each other and with the government. By altering interaction and providing some measure of justice to victims and perpetrators, the hope is to prevent repetition. This is critical in the U.S. today.

So, how does TJ work?

TJ encompasses a range of measures for truth, justice, reparations and institutional reforms. Measures for truth and memory include truth commissions and memorials, and measures for justice include criminal trials.

Reparations can be either symbolic or material. One example of symbolic reparations is an official apology by the government. Many forms of material reparations exist—not just financial compensation. Material reparations can also mean “erasing unfair criminal convictions, physical rehabilitation, and granting access to land, health care or education.” Finally, institutional reforms can involve repealing discriminatory laws and restructuring government agencies like the police.

If you found this article helpful, please consider supporting our independent reporting and truth-telling for as little as $5 per month.

What Does Transitional Justice in the U.S. Look Like?

Here’s what TJ could look like in the U.S.: A national truth commission on race—like the one proposed in the House of Representatives by Rep. Barbara Lee (D-Calif.), concurrent with senator Cory Booker (D-N.J.) in the Senate—could study and educate the public on the history and legacy of systemic racism and oppression in the U.S., from the nation’s founding to the present day.

Rep. Barbara Lee and Kamala Harris at the 2019 California Democratic Party State Convention in San Francisco. (Gage Skidmore / Flickr)

Meanwhile, state and local efforts, like prosecuting abusive police, could address individuals within those broad systems, providing accountability for perpetrators and justice for victims and their families.

In turn, national-level reparations could be paid to the descendants of the enslaved while city-level reparations could be awarded to victims of modern-day discrimination and violence, like police brutality. The U.S. can take advantage of the complementarity of these and other TJ tools at different levels of government.

We realize that TJ cannot solve all problems related to racism in the U.S. In fact, to some degree, TJ is by nature imperfect. TJ tools and processes were originally (and are perhaps ideally) suited to dealing with individuals and individual wrongdoing. Take, for example, criminal trials, which cannot achieve the same measure of justice for entire societies as they can for specific victims. Moreover, compromises are often necessary. But, while TJ may fall short of the ideal, pursuing it is fundamentally important.

While the language of TJ may be new in the U.S., the practice isn’t completely foreign. Consider truth commissions. The U.S. had a national-level commission in the 1980s to address Japanese internment and relocation during the Second World War. There has also been a state-level commission in Maine, established by the state government and the indigenous Wabanaki to address the decades-long practice of removing Native children from their families and placing them in the foster care system. A city-level truth commission was also established in Greensboro, N.C. in 2004 to investigate the November 3, 1979 killings of anti-Ku Klux Klan demonstrators. Several other commissions are in development or ongoing in cities like BostonNew York, Philadelphia and San Francisco and states like Maryland. But the present moment calls for a more coordinated and comprehensive national effort

No matter how TJ proceeds in the U.S., a crucial element to its success will be perceptions of fairness and legitimacy. Thus, TJ should be a bipartisan effort. In addition, it will be important that mechanisms like truth commissions and reparations programs are led by people who are not in elected office so as to reduce possible concerns about bias.

Relatedly, no effort should be restricted to any one political party. It would be a terrible mistake to form a truth commission on immigration, for example, that focused solely on the Trump administration. While the administration’s ‘Muslim and African bans’ and separation of families at the U.S.-Mexico border are heinous and deserving of accountability, they didn’t develop overnight. They are part of a long history of discrimination and violence in the U.S., including against immigrants.

When developing and designing TJ measures, engaging groups with different types of expertise is essential. Activist organizations have on-the-ground knowledge of injustice and are key to monitoring government commitments and actions in the long-term. TJ practitioners know what has worked and what hasn’t globally. Scholars have both developed detailed proposals for reparations and have an international and comparative lens on transitional justice. Affected communities must also always be present and central in the choice, design, implementation, and evaluation of TJ mechanisms.

Finally, there should be some form of TJ for different marginalized communities. While we focused on Black Americans in this essay, many others demand and deserve truth and justice, including Indigenous, Latinx, and Asian and Pacific Islander Americans. 

For more discussion on repairing the U.S.’s reputation abroad and the opportunities and challenges ahead for the next administration, check out Episode 18 of “On the Issues With Michele Goodwin”: How Does the U.S. Rebuild Global Relationships?

Listen here:

About and

Colleen Murphy is the Roger and Stephany Joslin Professor of Law at the University of Illinois at Urbana-Champaign and a Public Voices fellow of The OpEd Project. Twitter: @drcolleenmurphy
Kelebogile Zvobgo is founder and director of the International Justice Lab at William & Mary and a PhD candidate in political science and international relations at the University of Southern California. Twitter: @kelly_zvobgo