September, 2020
The word "justice" is being used a lot in this summer (2020), usually in the phrase "Justice for George Floyd" or "Justice for Breonna Taylor" or "racial justice." But few people seem to be unpacking what the term "justice" means. It is hard to understand how defunding the police would bring justice to George Floyd or Breonna Taylor, although, some might argue it would mean their deaths were not in vain. But let's unpack the notion of justice in the context of this summer's events.
There are at least four different types of justice: distributive (determining who gets what), procedural (determining how fairly people are treated), retributive (based on punishment for wrong-doing) and restorative (which tries to restore relationships to "rightness.") All four of these are relevant to the events of summer 2020, and more broadly to race relations—and other intergroup conflicts—in the United States and elsewhere.
| Blacks do worse throughout the entire justice process—from stops and arrests, through jailing, trials, sentencing, and parole. This is the very essence of procedural injustice, and it should be the focus of attention just as much as the narrower question of police shootings. |
Most of the focus in the U.S. right now seems to be on procedural justice. George Floyd and Breonna Taylor and many, many other Black people were treated much more harshly by the police (indeed, in these two cases infinitely more harshly as they were killed) than are typical whites when they encounter the police. While it is true that unarmed White people have also been shot, statistics show that such outcomes befall Blacks in grossly disproportionate numbers compared to Whites. Similarly (though this is being talked about less), Blacks do worse throughout the entire justice process. They are apprehended more, they are put in jail more, kept there longer (being unable to make bail as easily as most Whites can) and they are convicted and receive longer sentences than do Whites. This is the very essence of procedural injustice, and it should be the focus of attention just as much as the narrower question of police shootings.
The focus, to a lesser extent, is on retributive justice, particularly whether and how the police officers that killed Floyd, Taylor, or others will be held accountable. Historically, in the U.S., police are seldom held accountable for excessive use of force. This is sometimes due to the notion of "qualified immunity" which holds that public officials cannot be held responsible for professional misconduct unless they violated "clearly established law." While one would think that shooting an unarmed civilian would be a violation of "clearly established law," in principle, in the past that has been very difficult to uphold in court, and most police have not been tried at all, or were acquitted when they were tried. (That said, there is an argument to be made that some accommodation ought to be made for law enforcement officers who are repeatedly sent into dangerous situations with almost no information about what, exactly, is happening and where they may be called upon to instantly decide how best to respond to potentially deadly threats. In the case of George Floyd, however, it seems very clear (based on what we now know) that the officer who killed Floyd was not being personally threatened, nor did he have to make an instantaneous decision.
| Retributive justice seems to be applied more harshly in the case of Black defendants when compared to White defendants. |
On the other hand, as I discussed in the paragraph about procedural justice, retributive justice is alive and well when it comes to sentencing Blacks. They are much less likely than Whites to get off with easy plea bargains, and are likely to get harsher sentences with less opportunity for parole.[1] So this, too, is an issue that needs to be looked at and likely remedied.
The notion of distributive justice isn't being discussed as much this summer, but it certainly is a big part of the story of race in this country, and it is beginning to be talked about more. We just published a new case study on Beyond Intractability that looked at how reconciliation between Blacks and Whites was sabotaged during the post-Civil War "Reconstruction Era." The way released slaves were treated just after the war set them and our country as a whole on a course of distributive injustice no matter how you define it: equity, equality, or need.
| Whites and Blacks (and others who have suffered a history of discrimination) need to sit down together and to jointly develop an image of what distributive justice would look like for everyone now—and into the future. |
There is no way to make things right with generations that have passed, but we certainly should look now at how we can start to make things right after 150 years. However, it is probably unrealistic to expect that current generations of Whites will be willing or even able to compensate for 150 years' worth of loses. Nor, I would argue, is it reasonable to expect them to do so. But it is reasonable to ask Whites and Blacks (and others who have suffered a history of discrimination) to sit down together and to jointly develop an image of what distributive justice would look like for everyone now—and into the future. The only way such a discussion could possibly succeed, and indeed, the only way policy changes to come out of such discussions could possibly succeed, is if everyone really means everyone—not every individual, of course, that would be impossible—but every group, including Whites. They would need to come to an agreement about how distributive justice should be defined, and how we can get there from where we are now. Both agreements would need to be sufficiently inclusive that people of all races would "buy in" to these ideas and agree to start working toward them. If any one group tries to impose its own narrow and self-serving image of justice on the others, it will not have sufficient support to be attainable over the short or long terms.
Over the near (or even intermediate) term, a consensus agreement on this high-stakes distributional issue is likely to be extremely difficult to achieve. This suggests that a certain amount of confrontation will be required. The challenge is to make this confrontation as constructive as possible, so that it doesn't fuel a backlash that deepens hostilities and inequities. For this, we think that relying on a power mix that combines efforts to persuade people to do the right thing; collaborative, coalition-building efforts (including those with groups that also face serious distributional inequities); and force—primarily in the form of King and Gandhi-style nonviolence.
| Blacks and Whites—and other peoples—could engage in restorative justice circles all around the country to try to understand each other better, and to try to develop an image of what a racially "just" society would look like, and what we can do to move in that direction. |
The final type of justice is restorative, and while this one should have a lot of relevance in this summer's discussion, I have heard hardly a mention of it. Restorative justice seeks to restore relationships to "rightness." Now, it could be argued that it is impossible to restore relationships to rightness when they never were "right," but if one modified the notion of restorative justice to mean justice to create healthy relationships where they were absent before, you would have a very powerful tool for social justice, it seems to me. Restorative justice seeks to repair what is broken, compensate victims for harms done, and reconcile relationships between individual people so that they can live together peacefully in the future. True, George Floyd and Breonna Taylor cannot live peacefully with anybody. But police can engage in restorative justice with the communities Floyd and Taylor lived in; indeed, police in all U.S. cities could engage in restorative justice with their citizens to good effect. Blacks and Whites—and other peoples—could engage in restorative justice circles all around the country to try to understand each other better, and to try to develop an image of what a racially "just" society would look like, and what we can do to move in that direction. Such a process could also highlight and celebrate areas where we have made or are making substantial progress. It is as important to build on and publicize successes as it is to highlight failures.
| Until we unpack, understand, and pursue all four of these types of justice, racial justice and racial peace will remain an elusive goal. |
Such an exploration should, of course, also explore law enforcement's side of the story. There are lots of big, society-wide problems that the larger society has failed and, in many ways, not even tried, to address—drug abuse, alcoholism, inadequate care for the mentally ill, homelessness, lack of employment opportunities, poor schools, etc. Police are, in essence, being told to use their law enforcement toolkit to keep these problems from threatening the security of more fortunate segments of the society. The fact that this doesn't work represents our collective failure as much as the failure of the police. We all need to own our part of the problem.
Until we unpack, understand, and pursue all four of these types of justice, racial justice and racial peace will remain an elusive goal.
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[1] Radley Balko "There's Overwhelming Evidence that the Criminal Justice System is Racist. Here's the Proof. Washington Post. June 10, 2020. https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/
