Jurisprudence

If Biden Wants to Heal America, He Must Create a Civil Rights Tribunal

We can’t have real unity until we collectively account for our racist history.

The Black Wall Street Massacre memorial
The Black Wall Street Massacre memorial in Tulsa, Oklahoma. Win McNamee/Getty Images

In aiding President-elect Joe Biden’s victory, Black Americans placed their hopes of stemming racial tensions on a Biden-Harris administration. In turn, Biden immediately made calls to unify a deeply divided America in a victory speech that also highlighted the diversity of his coalition. Biden’s focus on race equity, while admirable, tiptoes around the obvious: America cannot begin to unify or heal racial tensions without properly addressing its racist past.

American society has only recently begun an earnest dialogue on racial justice, spurred by Black murders at the hands of police. Underlying the summer’s racial justice protests is the sentiment that America has not yet atoned for its racist sins. With President Donald Trump’s penchant for stoking racial tensions, leadership on race equity has been absent.

A necessary first step in America’s “racial healing” is the accountability of white Americans for their role in atrocities perpetrated against Black Americans. Where other countries and international organizations created tribunals to investigate their own historical abuses, the United States has not.

It’s not that the U.S. has no infrastructure to handle such a tribunal. In fact, the U.S. still commits resources to hold suspected SS members accountable, leading the world in successful prosecutions. This past spring, the Department of Justice aided in the deportation of Friedrich Karl Berger, an admitted Nazi guard, 75 years after World War II. This commitment to bringing former Nazis to justice is in stark contrast to the little provided to correct historical abuses of Black Americans. For example, the DOJ has not provided assistance in holding white Americans accountable for the Tulsa race riots nor the Birmingham bombings. The accuser of Emmett Till, Carolyn Bryant, long ago admitted to falsifying allegations that resulted in his brutal death yet has faced zero repercussions. The American government is willing to hold former Nazi SS guards, then as young as teenagers but now well over 70, accountable for their role in abuses—but shrugs when it is time to hold its own citizens accountable for cruelties visited upon Black Americans.

An American civil rights abuse tribunal could be an initial remedy. This civil rights tribunal would focus on investigating allegations and documented cases of past racial injustices between 1900 and 1970. This era is recent enough that abusers, evidence, victims, and witnesses may still be found to correct what was then a woefully inept, racist justice system. By setting an endpoint of 1970, the civil rights tribunal would not step on the toes of the more “modern” justice system, which, while far less blatantly racist, is still plagued by its own issues of systemic racism.

This time period of American history is known for some of the most barbaric, violent, and inhumane racial injustices the world has ever seen. These abuses were perpetrated by private vigilantes like the Ku Klux Klan but also state actors like politicians, police, and the courts. There is no shortage of racial atrocities committed during this time period that are unanswered. Millions of Black Americans were tortured, killed, or forced to flee their homes.

The lynching of Will Brown led to the 1919 Omaha race riots, where Black Omahans were also randomly assaulted. There is the famous case of George Stinney Jr., one of the youngest people ever executed in the United States at 14 years old. At his execution, Stinney, barely 5 feet tall, required a Bible under him to allow his head to reach the electrodes of the chair. During this time, increased urbanization and racial tensions led to frequent race rioting. Black people were the primary victims of these race riots, often losing their lives, businesses, and property as white people received the support and protection of the police and at times the National Guard.

A civil rights tribunal may seem radical—it is not. The United Nations has held similar tribunals. Countries with comparable systemic atrocities—Cambodia, Germany, Rwanda, and the former Yugoslavia—often create them as a first step of reconciliation.

The U.S. has no formal way to collectively process and account for its own history. The federal government does already allocate some resources to unsolved murders of the civil rights era. The DOJ has sentenced murderers, bombers, and kidnappers under the Emmet Till Unsolved Civil Rights Crime Act of 2008. This is no small feat. But by focusing on individual homicides, the DOJ fails to acknowledge the mass violence, much of it state-supported, perpetuated against Black Americans. This is a glaring oversight, particularly when race-based riots and mass killings of Black Americans are well documented. Often starting with little more than a vague tip, federal authorities will launch complex investigations to identify and doggedly pursue former SS officers. Yet reams of evidence of large-scale racist crimes in the U.S. are collecting dust on history shelves in public libraries.

One could point to the U.S. Commission on Civil Rights as an avenue to correct historic injustices, but its role in racial justice has been made to be symbolic at best. Notably, when created, the U.S. Commission on Civil Rights was not granted prosecutorial power. In other words, it has no teeth, and it has become just another bureaucratic agency offering recommendations to the president and Congress.

True accountability could take many different forms. Congress could create a tribunal with criminal and civil enforcement, or, through executive order, Biden could create a tribunal without judicial enforcement. Even without the force of the legal system, this second option could pursue restorative justice and move the nation a step toward healing. The tribunal would give victims the opportunity to discuss their trauma and how injustice shaped their lives. Abusers, and those complicit in acts of abuse, would also have the opportunity to discuss their experience and atone for their role in creating harm.

This could be modeled closely after South Africa’s Truth and Reconciliation Commission, which worked through the harms of apartheid. The TRC traveled around South Africa in an attempt to make the hearings more accessible, which would be needed in the far larger U.S. Victims were offered the opportunity to share their narrative and the trauma that abuses created. Abusers were encouraged to speak, not to shame, but to atone. It wasn’t perfect, but the TRC created a raw and painful national dialogue in a bid of transparency grounded in forgiveness. In doing so, it created a documented, state-sanctioned history and, equally important, allowed victims to be heard and validated.

This is the missing key in America’s attempts at reconciliation. The nation has never truly aired out its racist, dirty laundry. Many people still deny that racial inequities exist at all. Popular revisionist versions of history paint white slaveholders as victims of Northern aggression—even grade school textbooks deliberately hide the true legacy of slavery. Recently, Black Americans have received some superficial gestures toward racial justice, but much deeper work is needed.

Racial healing requires the U.S. to acknowledge that Black lives matter—that they have always mattered. Some may find the comparison of U.S. racial injustices to genocides or abuses in other countries unfair or simply laughable. But the refusal to acknowledge, let alone heal, racial injustices suffered by Black Americans to this day has created a self-perpetuating cycle that allows systemic racism to thrive. Such a tribunal is just one step in undoing that system and is grounded in the simplest of notions: listening to Black America.