The Rebellious Lawyering Conference (RebLaw) began yesterday at Yale Law School, bringing together law students, lawyers, and community organizers to discuss a plethora of social justice issues. The author attended two of the sessions, which were amazing and yielded interesting legal perspectives and strategies worth elaborating on (and of course there were many simultaneous sessions which you can check out here). And tomorrow I’ll give a similar summary of the sessions I attend today.
Session 1 – Reconciling with the Past to Invest in our Future: Reparatory Justice in the U.S. and Beyond
This session featured Professors Khiara M. Bridges and Maurice Jackson and UN Transitional Justice Policy Analyst Emily Kenney. It opened with a playing of “Forty Acres and a Mule” by Oscar Brown, Jr.
Then Professor Bridges explained that one means of reparations is through complete reproductive justice, and explained that reproductive justice is a more intersectional approach to reproductive rights that recognizes the role that racism and economic coercion plays in the denial of reproductive rights, both of birth control and of sterilization. She explained that as such, full reproductive justice could only come through a massive, historic redistribution of wealth. She questioned the utility of affirmative action, suggesting that in the classic Brown v. Board “diversity benefits the school” argument centers the benefit of the white students already there and does not question white hegemony but just assimilates Black people into it. She ended by questioning the need for the “spectacular” like slavery to trigger reparations and said that the banal racism of the everyday also must be confronted in a reparatory framework.
Professor Maurice Jackson gave an enormous overview of the history of reparations which I could not possibly do justice and I would point you to his work with Georgetown’s Working Group on Slavery, Memory and Reconciliation. Nevertheless I’ll touch on a few key points. First Prof. Jackson was not shy about connecting reparations to communism, both with his own involvement in the WEB Du Bois Club (the youth wing of the US Communist Party) and with Lenin’s foundational ideas of self-determination leading to the idea of New Afrika. But the history of reparations started far earlier, he told us, with early Black writers in the US like Phyllis Wheatly.
He also pointed out that US reparations are not necessarily limited to the domestic: that a powerful case can be made for the US paying reparations to Vietnam (and, while it may seem preemptive as US violence against the region continues, I would add most of the Americas, Middle East, and the Philippines).
Emily Kenney was the most doctrine focused of the presenters since international law actually has a reparatory justice framework. The foundational case for this framework is Chorzów Factory heard before the Permanent Court of International Justice (the League of Nations antecedent to today’s International Court of Justice). Particularly the case had two important holdings: (1) that states were responsible for wrongful expropriation and (2) that the appropriate damages for such expropriation was reparations.
Reparations are generally thought of as a lump sum payment, as famously proposed in the “forty acres and a mule” concept from Reconstruction. But Kenney explained to us that in international law there are five types of reparations and generally all five are sought to achieve some “full” sense of reparation: (1) compensation, the lump sum payment (2) restitution, injunctive action such as restoring citizenship or land rights, (3) rehabilitation, long term programs to facilitate healing, (4) satisfaction, memorializing the harm and educating the populace about it to prevent its recurrence, (5) strengthening governance, also as a prevention measure.
One example of Kenney gave of her work was the current efforts in Colombia, a program targeted at 8 million people. She acknowledged the complications that arise in situations where the combatants are also considered victims. This is generally where my reservations about the United Nations conducting such programs stems from. The programs exist in a context of imperialism, that even if FARC members are afforded compensation they are still assumed to be the perpetrators of harm while the paramilitaries of Uribe and others go unmentioned (and similarly with reparations in the Peru conflict between Shining Path and the Peruvian government). Further they are asking states with little to no money or resources to make reparations, often in the midst of the IMF and private companies extracting billions of dollars worth of capital from their countries.
Session 2 – Financing Criminal Justice
This second session focused on the practices made front page news by the Department of Justice report on Ferguson – state and local governments relying on fines and fees for revenue. The panel consisted of Raúl Carrillo, Thomas Harvey, Mitali Negrecha, and Jaribu Hill (Professor Emma Coleman Jordan was unfortunately unable to attend).
Jaribu Hill can only be accurately described as a force. Founder of the Mississippi Workers’ Center for Human Rights, the Southern Human Rights Organizers’ Conference, former Director of CCR South (where she won a permanent judgment against the KKK), and alumni of CUNY Law, Jaribu is a fierce advocate for justice with an uncompromising disdain for capitalism, patriarchy, and white supremacy. She was the ideal moderator of a panel: introducing it with key facts (like that debtors’ prisons were supposedly abolished in 1883) and a powerful central message: that the rich get to escape and poor people don’t ever get to escape. She also followed each speaker by summarizing what they just said, in the Black Southern tradition of call-and-response demanding the audience to affirm that they understood.
Raúl Carrillo followed Jaribu’s introduction by giving a macroeconomic perspective to help us understand these practices on a systemic level. This is part of what he does in his work with Modern Money Network, an interdisciplinary educational initiative that tries to break down the monetary and financial systems in a way that normal people can understand. It was incredibly useful and I wish that there were more such macroeconomic perspectives brought to this kind of work. While Carrillo is a Chartalist Minskyist, and thus as a Marxist I would disagree with all his ideas, as Michael Roberts noted the schools are complimentary and there was certainly a lot of common ground. Modern Monetary Theory (another name given to this new iteration of Chartalism) rejects that inflation is controlled by central banks supplying credit money and instead that demand for money determines supply. In the words of Carrillo, a check from the Federal Reserve will never bounce, that as the monetary sovereign the Fed theoretically has an infinite amount of assets to draw from.
Monetary sovereignty, Carrillo explained, is a hierarchy, and that while commercial banks like Bank of America may not be monetary sovereigns they are “closer” to them than monetary subjects like ordinary people or states like Greece and Senegal. For us, for Greece and Senegal, and for the city and county governments discussed later in the panel, we have survival constraints – the need to resolve our balance sheets by covering the liabilities with assets. Capitalization (the ratio of assets to liabilities) is a fascinating legal subject, from the Fed’s stress tests to the prima facie test for piercing the corporate veil, so I might write a separate blog post on that at some point. But for now, the important point to note is that there’s a straightforward solution to this problem: obtaining control of the monetary sovereignty and thus access to their theoretically infinite assets. On this point, Carrillo cautioned that libertarians should be avoided as their ideas of, for example, ending mass incarceration to “cut costs” is a “bootleggers and baptists” phenomenon. Their own objectives could lead to a decarceration that prioritizes budgets over human life.
Thomas Harvey is an attorney with Arch City Defenders, an amazing group out of Saint Louis that began with legal work for the homeless but wound up being a key source of support for the Ferguson uprising and other Black liberation struggles. Harvey contributed to the discussion first with hard data: that at that moment there were 500,000 in jail simply because they could not afford bail. That 11 million people cycle through the local jail and prison systems. That there were 700,000 warrants for arrest in Greater St. Louis, an area with a population of 2,916,447 (so about 1 warrant for every 4 people). Then he told the story of Nicole Bolden, a modern odyssey through the system of fees, fines, and jails.
Lastly Mitali Negrecha, director of the National Criminal Justice Debt Initiative at Harvard Law School, showed us some benchcards used to remind judges that they do not need to throw poor people in jail for being poor. She explained these existed to counter a kneejerk use by judges of bench warrants over issues of debts. The judges often agree that it is ridiculous, but feel that their orders cannot be undermined. She invited us to reconsider the landmark Bearden v. Georgia case, arguing that judges have broader discretion per that holding than others have interpreted. Negrecha argued that a key objective in this fight should be to make all fees discretionary, eliminating any mandatory fees, and to stop buying into the “budget arguments” as their fallacious nature (as described by Carrillo) makes them impossible to win.
The statement on judiciary discretion sparked a debate, prompted by a student’s question on the matter. Harvey chimed in to say that he believe discretion was beneficial when given to federal judges but that for these local courts, where the judges may not even have legal training or may be private attorneys by day, needed to be eliminated rather than given discretion. But even in regards to the federal courts, Harvey said that we have to keep in mind the central issue: why are these matters even in court to begin with?
Jaribu summed up the panel by stating that this issue could be a headway into overthrowing the system of poverty itself, and encouraged people to look at debt issues as more than service provision or transactional practice but as community, movement lawyering.