In a webinar preview of their paper on restorative justice to be published this June, Harvard Kennedy School faculty members Linda Bilmes and Cornell William Brooks examined the norms for compensation of harms which already exist in the United States and how harms against generations of African Americans fit into this model. Scott Leland, executive director of the Mossavar-Rahmani Center for Business and Government, moderated the conversation.
The purpose of the study, according to Brooks, Hauser Professor of the Practice of Nonprofit Organizations and a professor of the practice of public leadership and social justice, is to show how the harms visited on African Americans and descendants of American slaves could fit into an existing federal restitution program. “Reparations are not an uncommon endeavor in this country,” said Brooks. He began by establishing a taxonomy of harms rooted in, but not limited to, chattel slavery: “Harms that we are discussing have been inflicted upon African Americans due to federal policy, actions, inactions, negligence, indirect effects, and in ways that are quite profound, spanning the arc of time.” The researchers identified seven functional categories of harm: housing, labor, criminal punishment, health care, education, violence, and disenfranchisement.
A unique element of the study, said Brooks, is the use of data visualization software to show how these harms are interrelated. “We can plot these harms, look at the nodes of these harms in terms of laws, of policies and regulations, and the ways in which they interact with one another, literally compounding the effect of these harms in ways that cross generations,” Brooks said.
Bilmes, the Daniel Patrick Moynihan Senior Lecturer in Public Policy, catalogued the existing U.S. governmental norms for addressing harms. “When Cornell and I began this study last fall, I discovered federal and state governments spend hundreds of billions of dollars every year on a number of programs that provide compensation for a defined group of harms,” she said. These norms address the intentional as well as the accidental. “There are programs to recompense for physical harms, like workplace injuries, and for economic harms to communities and individuals and businesses who are displaced through trade, for example,” Bilmes said. “There are programs that go from generation to generation, including veterans and Indian affairs programs. There are a range of programs for the environment, such as the Volkswagen Settlement Trust Fund.” The breadth of the programs paying compensatory restitution is huge: on trade assistance alone, there are more than 50 programs providing compensation. “What was clear to me was that the government has got a set of norms to address the consequences of different types of harms,” Bilmes said.
The next task for the team was to define eligibility for compensation. They found eligibility typically is defined in three ways: by a specific group of people, such as the September 11th Victim Compensation Fund; by specific injury or disease, such as the Ricky Ray Hemophilia Relief Fund; or by a combination of the two, such as disability compensation for veterans.
Funding for these programs is also a common and accepted federal practice, Bilmes said. “One typical way of funding these programs is through excise taxes,” she noted, using the National Vaccine Injury Compensation Program (providing compensation to people who were injured by vaccines that are FDA and CDC approved) as an example. “For every vaccine administered in the United States, the manufacturer pays around a 75-cent excise tax. And that money goes into a trust fund so that anyone who claims injury can file a petition.” In return, manufacturers are indemnified against legal class action suits. “The principle here is that, although the government clearly did not deliberately harm individuals, the government plays a role in that the FDA approves the vaccines,” Bilmes explained.
“We need a national moment where we think about chattel slavery in the same way as we have thought about so many other harms.”
Linda Bilmes
Looking at the existing taxonomy of harms and the range of government programs addressing them led Bilmes and Brooks to conclude that it would be a radical departure from precedent to exclude racial harms from compensation. “This research suggests that the diversity and variability of compensation programs not only demonstrates what has been done, but what might be done,” said Brooks. “As a matter of law and policy and fiscal practice, African Americans are inexplicably excluded from categories of compensation, both as a matter of practice, but also as a matter of definition.”
Bilmes said existing practices may be a model for addressing harms like housing discrimination against African Americans, for example. “It’s not very hard to imagine a compensation program in which an excise tax would be paid by those housing mortgage companies and lenders who were involved in redlining and housing discrimination,” she said.
The study, which was conducted with the assistance of a Harvard student team, will be published under the title “Reimagining Restorative Justice: U.S. Norms for Compensating Harms and Implications for Restitution to African Americans” and will be released later this summer. Bilmes underscored the importance of the study. “We need a national moment where we think about chattel slavery in the same way as we have thought about so many other harms.”
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Restorative Justice: US Norms for Compensating Harms & Implications for African Amer. Restitution