Abstract
Paying reparations to Black Americans has long been contentiously debated. This article addresses an unexamined pillar of this debate: the United States has a long-standing social norm that if an individual or community has suffered a harm, it is considered right for the federal government to provide some measure of what we term “reparatory compensation.” In discussing this norm and its implications for Black American reparations, we first describe the scale, categories, and interlocking and compounding effects of discriminatory harms by introducing a taxonomy of illustrative racial harms from slavery to the present. We then reveal how the social norm, precedent, and federal programs operate to provide victims with reparatory compensation, reviewing federal programs that offer compensation, such as environmental disasters, market failures, and vaccine injuries. We conclude that the government already has the norm, precedent, expertise, and resources to provide reparations to Black Americans.
EXECUTIVE SUMMARY
Studies have documented, and in some instances attempted to quantify, the harms inflicted on Black Americans over the past four hundred years from slavery through its direct and indirect impacts. This article examines major racial harms precipitated or aggravated by actions involving the federal government and argues that there is a moral case, societal norm, and governmental precedent for paying reparations for these harms and the resulting racial wealth gap.
The article examines the harms through the lens of a novel framework: in the context of the federal government’s policy norm of providing what the authors term reparatory compensation to many segments of the population, for varied harms, throughout U.S. history. These compensation mechanisms demonstrate that financial restitution for harms to victims is a widely accepted, utilized, and institutionalized practice of federal government with centuries of precedent. The article raises a unique question: if reparatory compensation is common for government-recognized harms, why do we not compensate the massive racial harms suffered by Black Americans? What if Americans considered racial harms to Black Americans in the context of the many laws and programs enacted to address other profound harms? What if Americans endeavored to address the racial harms to Black Americans equipped with the same norm, precedent, and fiscal imagination applied to many nonracial harms over so many decades? The existing mechanisms, with their diverse funding streams and variety of ways for compensating harms, can serve as precedent, models, and norms for reparations for racial harms.
Reparations are surprisingly commonplace practices in the federal government’s role of compensating harms. The United States has paid many forms of reparations throughout its history and has implemented hundreds of programs that compensate individuals and their dependents for various harms. Even though the use of the term reparations is not commonly applied to government programs, reparatory compensation or providing financial restitution for recognized harm is quite common.
A majority of Americans currently oppose reparations for slavery’s descendants, but support for it is growing, especially among young people. Tracking polls show overall support for some forms of reparations by all voters has risen from 14 percent in 2002 to around 30 percent in 2021 (Blazina and Cox 2022; University of Massachusetts 2023; Younis 2019) and up to 38 percent of likely voters (Rasmussen Reports 2022). This figure rises to 57 percent for those aged eighteen to twenty-nine (University of Massachusetts 2023). Across all demographics, polls show opposition is due primarily to doubt over government’s ability to administer reparations, feasibility of valuing slavery’s harms, and the belief that Black Americans are undeserving or are already treated equally (University of Massachusetts 2023). However, public opinion is still evolving. As John Skrentny has pointed out, Americans today support ideas for redressing harms that were historically opposed. For example, he cites “veterans’ preference” in government employment, which was resisted initially on the grounds that it ran counter to the idea of meritocracy, but its legitimacy is now “beyond question” (Skrentny 1996).
By grounding arguments for reparations in the long-standing norm, precedent, and practice of reparatory compensation, we address these objections by demonstrating that government already administers and funds many reparatory compensation programs for diverse nonracial harms; such programs already value complex harms; and racial harms are interrelated and compound over time into the present leaving Black Americans unequal—and deserving today. These findings confirm what government does and can do and are uniquely persuasive for the public debate. Finally, Black Americans bear what we term an “asymmetric evidentiary burden,” that is, having a greater responsibility to prove harms and acceptance of remedies than non-Black groups through polling and other means, relative to other groups who now receive reparatory compensation. We plan to conduct further survey research to understand how to better convey to Americans the current widespread use of reparatory compensation presented in this article.
THE CONCEPT OF REPARATIONS
The international legal basis for reparations is enshrined in international human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (United Nations 1978), the International Convention on the Elimination of All Forms of Racial Discrimination (United Nations 1970), and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations 1984). Many international programs have adopted the United Nations (UN) principles for reparations programs (UNGA 2005). These include the following:
Cessation, assurances, and guarantees of nonrepetition: the idea that the harms will cease (whether by legal changes or administrative guarantees) and not recur in the future.
Restitution and repatriation: the principle that there should be an attempt to restore victims to their “original state” prior to the harms occurring.
Compensation: the inclusion of monetary restitution if true restitution is not possible.
Satisfaction: the idea that there is a moral requirement to restore the victim’s sense of dignity.
Rehabilitation: healing to end the lasting effects of the harm (e.g., the implementation of truth and reconciliation commissions to give voice to victim narratives).
The discussion of paying reparations to Black Americans frequently invokes comparisons with reparations paid to victims of the Holocaust and payments to Japanese Americans incarcerated in internment camps during World War II (Dymski 1999). A key finding of this article is that these two examples, though compelling and illustrative, represent only a small subset of government reparatory compensation programs. U.S. laws and rules governing compensation programs show that Congress has long sought to provide some measure of restitution, compensation, and rehabilitation to those who have suffered harms that are largely beyond their control. These laws reflect the breadth of elements in the United Nation’s definition of reparations.
The United States has largely focused on compensation. Congress has established programs to compensate or assist victims of certain circumstances, including negligence, terrorism, market fluctuations, personal injuries, trade policies, corporate bankruptcies, and acts of God such as crop failures and environmental disasters, as well as paying reparatory compensation as redress for racial harms in two laws enacted for compensation to World War II incarcerated Japanese Americans (Lister 2020).
The programmatic scope, financial scale, and number of harms addressed, the diversity of victims compensated, and long existing compensatory mechanisms demonstrate that the U.S. government not only is capable of administering programs of reparatory compensation for harms but also is experienced in doing so. This article’s taxonomy and audit call into question the presumed impracticality of compensating victims of the continuing harms of slavery.
TAXONOMY OF ILLUSTRATIVE HARMS AFFECTING BLACK AMERICANS
Although slavery ended more than 150 years ago, the long-term effects of the brutal institution have meant a legacy of interrelated ongoing harms. The assumed distance between the slavery of the past and the present conditions of Black Americans, the documented breadth of racial harms experienced by Blacks since 1619, and the painful depth of those harms have been used to argue that reparations are incalculable, impractical, and if not impossible to administer, then too expensive. To address these objections, it is essential to introduce a taxonomy of illustrative harms that spans the types and variety of harms over time. This taxonomy directly addresses the question of whether slavery and the legal iterations of slavery (e.g., the convict leasing system, or “apprenticed” children) were that “long ago.” Moreover, both the categorization of the harms and the interactivity of the harms provide the ways to calculate, in some cases, the quantifiable aspect of the harms. Last, the taxonomy of these illustrative racial harms provides the means by which to demonstrate the United States is already providing reparations for a similarly wide range of harms through federal programs. Indeed, many of the harms against Black Americans fall into the broad categories of harm for which the government frequently compensates, such as personal injury, loss of wages, livelihood, housing, training, and access to economic opportunities. Specifically, the taxonomy traces many of the harms against Black Americans and describes government actions, inactions, legal decisions, and direct and indirect policies from slavery through the twenty-first century.
Our taxonomy illustratively, not exhaustively, describes complex, interlocking, and compounding racial harms to Black Americans spanning centuries. These categories of racial harm include: housing; wages, employment, and labor markets; education, criminal justice, health care, the franchise, and violence. Each broad category of racial harm represents specific harms to Black American bodies, opportunity, and wealth. We examined each category of racial harm, but in this article we focus on housing, education, and wages, employment, and labor markets because they most closely align with harms addressed by reparatory compensation programs.
INTERRELATEDNESS OF HARMS
The harms set forth in the taxonomy span not merely the arc of American history but also the lives of Black people, families, and communities. These harms are not isolated and freestanding but correlate, interact, and compound in ways that have quantifiably devastated lives, livelihoods, wages, businesses, property, health, and homes over decades into the present moment. The replication and persistence of categorically unequal treatment is sustained as a form of “durable inequality” (Tilly 1998), where discriminatory practices normalized the racial separation that perpetuated racial injustice and inequality (Bonilla-Silva 2010).
For example, at various points during the period of enslavement it was illegal to teach Black people to read and write (Span 2005). In the immediate aftermath of slavery, Black Americans achieved literacy in the face of violence and state-designed inferior and segregated schools. Indeed, Blacks in but a few years trained teachers, founded schools, created literary societies, published newspapers, and created ways of educating themselves using the scraps of White supremacy (Bell 1992, 2008; Givens 2021). Despite these heroic efforts, segregated and inferior schools relegated many Blacks to agricultural and domestic work. State-sanctioned segregated education kept Black people in the lowest paid vocations. For newly freed Blacks, this meant continuing the only line of work they had ever known— agricultural and domestic work. When Social Security was adopted in 1935, it explicitly excluded these low-wage occupations where the overwhelming majority of Blacks were employed (Ray and Perry 2020). Black Americans today suffer from income disparity as the direct result of multiple actions during the twentieth century, which in turn evolved from earlier harms. The compounding of social, legal, private-sector, and public discrimination is a distinguishing feature of the harms against Black Americans.
HARMS RELATED TO HOUSING
Housing is the most important asset for the vast majority of American households, representing approximately half of household net worth (Iacoviello 2011). Homeownership protects and cultivates the generation of wealth. Homeowners can borrow against home equity to finance investments, and profits derived from homeownership can be passed to the next generation. Homeownership is also the greatest driver of racial wealth disparities (Shapiro, Meschede, and Osoro 2013). Housing discrimination can be separated into two categories: discrimination in access (sales and rentals) and discrimination in lending. Since emancipation, both forms of discrimination have ranged in their overtness, purported race-neutrality, and regime of private and public enforcement (Reina et al. 2020; Schwemm 1990).
Before federally subsidized mortgage lending became a prime driver of homeownership, the Homestead Acts, which began a few years prior to the end of slavery and continued for decades after slavery, awarded frontier land to Americans for little more than a filing fee. Black Americans were effectively excluded from the acts, which provided valuable land and the foundation for intergenerational wealth to White Americans. More than 1.6 million White families became landowners as a result of the acts but only between four thousand and 5,500 Black American claimants received land patents from the Southern Homestead Act1 (Merritt 2016). As of 2000, some forty-six million people could trace their ancestry to the original homesteaders, confirming the act’s role in creating intergenerational wealth among White Americans (Merritt 2016).
Despite obstacles, Black Americans acquired 15 million acres of land in the South between emancipation and 1910 through private purchases (Mitchell 2001) in the face of unrelenting violence and discrimination. Yet Black ownership of farmland declined to 3.9 million acres by 2017 due to “outmigration; voluntary sales; foreclosures; discriminatory lack of access to capital and credit; illegal takings; purposeful trickery and withholding of legal information; actual or threatened violence; and various forms of racism and discrimination by individuals, organizations, and government agencies” (Schelhas, Hitchner, and McGregor 2019, 20). Amid the segregation-driven dearth of Black lawyers, the lack of wills among Black farmers has resulted in heirs’ property, which is tenancy-in-common inherited land passed on intestate, without clear title, typically to family members. Heirs’ property is vulnerable to undervaluation and loss through tax or forced partition sales. In addition, the absence of clear title resulted in heirs’ property owners being unable to use the land as collateral and ineligible for government programs. The U.S. Department of Agriculture estimates that as of 2017, 1.6 million acres valued at $6.6 billion were held as heirs’ property in the 365 demographically defined Black Belt counties of the South (Bailey et al. 2019, 9).
Until the middle of the twentieth century, housing discrimination predominately took the form of overt acts of segregation. Prior to 1917, state-mandated residential zoning prevented Black Americans from purchasing homes within neighborhoods preserved for Whites. In 1917, the Supreme Court found in Buchanan v. Warley2 such zoning to be unconstitutional because it interfered with property rights without due process of law (Karst 2000). State and local communities subsequently bypassed the prohibition of race-based zoning through creative measures, sometimes creating residential zoning income restrictions, but more commonly by establishing private racial covenants. Racially restrictive covenants were written into deeds and prevented White homeowners from selling, renting, or transferring title to Black Americans (Brooks 2011).
An estimated 80 percent of suburbs developed in the 1930s and 1940s contained racially restrictive covenants (Kaplan and Valls 2007). Even after the U.S. Supreme Court held racially restrictive covenants to be unenforceable in 1948 in Shelley v. Kraemer,3 in the wake of fierce litigation and activism (Gonda 2015), they continued to be written into deeds as unenforceable deterrents to desegregated neighborhoods. Nevertheless, these legally unenforceable covenants continued to send market signals to the racially excluded (Brooks 2013). After the state’s official role in enforcing segregation weakened, private and local acts of violence and terrorism continued to be used to prevent residential desegregation. Indeed, the Fair Housing Act4 was only passed by Congress in 1968 after Dr. King was assassinated and cities were literally burning in flames of civil unrest (Massey 2015).
The Housing Act of 19345 and the creation of the Federal Housing Administration (FHA) institutionalized a new housing finance system and spurred an increase of homeownership for White Americans. Explicit and implicit racial systems built into the FHA loan system precluded most potential Black homeowners from receiving FHA-insured loans and created the system known today as redlining (Kaplan and Valls 2007; Rothstein 2017). The FHA developed risk criteria for insuring loans, and the FHA loan underwriting manual made explicit statements endorsing segregation and racially restrictive covenants. It prohibited “the occupancy of properties except by the race for which they are intended” and explained that economic assessment of properties should be lowered “by threatening or probable infiltration of inharmonious racial groups” (Federal Housing Administration 1938). White neighborhoods were consistently awarded the highest rankings, while Black or integrated neighborhoods consistently received the lowest ratings and became uninsurable (McKenna 2008; Kaplan and Valls 2007).
FHA’s preference for financing single-family residential housing, as opposed to the mixed business or multifamily residential housing favored in cities, further restricted FHA-insured loans to White suburbs. Even if Black World War II vets could apply, the Servicemen’s Readjustment Act6 (G.I. Bill) adopted FHA-like loan criteria and risk assessments, preventing most neighborhoods available to Blacks from qualifying. Moreover, Black veterans lacked access to formal and informal networks disseminating information about G.I. Bill benefits, and they were barred from veterans’ organizations such as the American Legion, the Veterans of Foreign Wars, and the Disabled American Veterans (McKenna 2008). These provisions, combined with widely practiced discrimination, effectively prevented many Black veterans from accessing the G.I. Bill’s housing benefits, and perpetuated substantial housing access inequality. In 1946 and 1947, Veteran Administration G.I. mortgages accounted for more than 40 percent of total mortgages issued, but few went to Black veterans (Katznelson 2005). Despite nearly 8 percent of World War II veterans being Black, “accounting for approximately 1,154,486 Black American veterans, fewer than 30,000 or 2.6 percent ever benefited from the homeownership provisions of the GI Bill” (Woods 2013, 411).
Although the official practice of racial discrimination in housing was banned by the Fair Housing Act, rental and sales discrimination, redlining and predatory lending still created barriers for continued access to housing and lending for Black Americans. The force of the 1968 act was diluted by weak enforcement and a legal precedent that requires evidence of both disparate impact and purposeful discrimination for violation of equal protection of the law (Mura 2009). The act banned many iterations of public actions and private practice that excluded Black Americans from housing over decades. Yet, the U.S. Department of Housing and Urban Development (HUD), which was charged with the administrative enforcement of the act, was so limited that even when its own investigations proved acts of blatant discrimination against a Black victim, the agency could do little more than ask the Justice Department to investigate further. HUD could not force compliance on discriminators, grant any remedy, assess damages, discontinue ongoing discriminatory practices, or penalize the lawbreaker in any way. Even after a referral to the Justice Department for possible prosecution, the attorney general could act only if there was evidence of “a pattern or practice” of discrimination, or the alleged act of discrimination raised an issue “of general public importance” (Massey 2015, 576). Considering the discrimination in federally subsidized housing lending, HUD’s weak fair housing enforcement powers, and the heavy enforcement burdens placed on Blacks facing housing discrimination, bad was made worse by the fact the act initially took no action against mortgage lending (Massey 2015).
Today, the relationship between discriminatory FHA risk assessments and race remains little changed. Nationally, nearly two-thirds of neighborhoods deemed hazardous are inhabited by mostly minority residents (Jan 2018). Ninety-one percent of the areas classified as best under the explicitly discriminatory FHA risk assessments of the 1930s remain middle-to-upper income today, and 85 percent of them are still predominantly White (Jan 2018). Black Americans who obtain loans are more likely to receive predatory subprime loans—that are more expensive, are more prone to default, and have significantly higher rates of foreclosure (Galbraith 2008; Jan 2018). The terms of the loans themselves may raise the likelihood of default.
A HUD study of housing discrimination indicated that borrowers in Black neighborhoods are up to five times more likely to receive subprime loans, even accounting for income, and that borrowers in upper-income Black neighborhoods were twice as likely as homeowners in low-income White neighborhoods to refinance with a subprime loan (Turner et al. 2013). Foreclosures in predominantly Black neighborhoods rise in tandem with increases in subprime lending. Mechanisms to prevent housing lending discrimination employed by HUD and the Consumer Finance Protection Bureau have been unable to curb predatory lending.7 The effects of housing discrimination are reproduced in a vicious cycle: discrimination creates social and economic barriers for Black Americans, and the resulting hardships fuel prejudice that leads Whites to associate minorities with the very neighborhood deterioration caused by the racial discrimination of White people (Yinger 1995; Korver-Glenn 2018). If housing is a source of intergenerational wealth, then what of the wealth denied to those enslaved-descendant Black families by private discrimination unchecked, under-prosecuted, and unpunished by weak or absent federal enforcement?
HARMS RELATED TO EDUCATION
On September 9, 1739, approximately one hundred enslaved people in the colony of South Carolina rebelled against the plantation owners who held them in bondage, killing men, women, and children as they attempted to escape in search of freedom (Smith 2005). This event, the Stono Rebellion, prompted the state’s General Assembly to pass the Negro Act of 1740, one of the earliest pieces of legislation to explicitly outlaw the education of Black people, which formed the blueprint for later laws prohibiting the education of Black people.
Because many states outlawed education for enslaved Blacks and erected barriers to education for free Blacks, after the end of the Civil War 80 percent of Black Americans were illiterate (Elliott 2006). As they sought to gain the education they were denied, newly freed Blacks encountered another obstacle in segregation. In 1850, the Massachusetts Supreme Judicial Court ruled in Roberts v. City of Boston8 that local officials could decide to segregate schools (Long Road to Justice, n.d.). The Roberts decision was cited as precedent upholding racial segregation in 1896 in Plessy v. Ferguson,9 which established the doctrine of “separate but equal.”
It took more than one hundred years after the Roberts decision before Brown v. Board10 held that separate is inherently unequal in 1954. In the intervening century, Black Americans continued to be denied access to education. The G.I. Bill again played an important role, providing federal funding for vocational and university education to servicemembers returning from World War II. However, the educational benefits of the G.I. Bill were administered at the state level, which meant that states with de jure segregation did not act in accordance with the race-neutral language of the bill. In the Jim Crow South, local authorities denied benefits to Black veterans who would otherwise qualify, and Black servicemen could not attend most educational institutions in southern states (Katznelson 2005). Northern universities, though marginally integrated, had quotas and other measures that restricted the admission of Black students (Katznelson 2005). In most cases, the only options for these returning servicemembers were historically Black institutions. Most of these universities were located in Southern states, were discriminatorily funded, and were consequently small, chronically short of money, and unable to accommodate the increasing number of Black servicemen seeking college educations (Katznelson 2005).
Without graduate programs and professional schools, Blacks restricted to black colleges had limited access to higher paying professions like law, medicine, and dentistry that might have served as ladders to the middle class. It is widely acknowledged that the G.I. Bill exacerbated rather than narrowed the economic and educational differences between Blacks and Whites (Turner and Bound 2003).
In 1954, one decade after the passage of the G.I. Bill, the Supreme Court of the United States ruled that segregated schools were inherently unequal in the landmark Brown v. Board decision. This historic case overturned the doctrine of separate but equal. Even though this was a significant achievement, school segregation was codified and had been practiced for well over a hundred years and would not be easily undone. The decision was met with massive resistance in several states (NAACP Legal Defense Fund, n.d.). Efforts to integrate schools were met with violence and White flight to private schools (Jayapal 1987).
In recent decades school segregation has increased (Orfield and Jarvie 2020). Most efforts to integrate schools stopped after a 1991 Supreme Court decision, Board of Education v. Dowell,11 allowed schools to be released from court monitoring on desegregation so long as the schools made a “good faith effort.” As of 2012, 15 percent of Black students, and 14 percent of Latino students, attend “apartheid schools” where Whites make up 0 to 1 percent of the enrollment (Orfield, Kucsera, and Siegel-Hawley 2012). Unequal funding for schools that serve Black students continues to plague K–12 education. In 1973, the Supreme Court held in San Antonio Independent School District v. Rodriguez12 that there was no constitutional violation in unequal school funding and ruled that education is not a “fundamental” right (Library of Congress 2014). In higher education, affirmative action policies that seek to bring more students of color into colleges and universities have been continuously under attack since their inception and finally ended after the Supreme Court’s 2023 Students for Fair Admission v. Harvard13 decision (Jencks 1985; Torres 2019).
Because of residential segregation, Black Americans have been disproportionately exposed to lead through deteriorating lead paint, dust and other lead-based products, which has deleterious effects on learning (Aizer et al. 2018; Feigenbaum and Muller 2016; Muller, Sampson, and Winter 2018; Reuben et al. 2019). Lead, a neurotoxin, can permanently damage the brains of young children, resulting in decreases in IQ, attention deficit disorders, mental illnesses and developmental delays (Reuben et al. 2019). Such environmental stressors harm the learning capacity of some Black children and may have lifelong effects (Aizer et al. 2018). In short, American laws and policies have consistently hindered the ability of Black Americans to obtain education—harms that have had and will continue to have significant generational impacts.
HARMS RELATED TO WAGES, EMPLOYMENT, AND LABOR MARKETS
The roots of the wealth gap can be traced back not only to slavery itself, but also to the long period of labor exploitation that followed, particularly the widespread use of debt “peonage” and sharecropping (Daniel 1972). Peonage was a system in which individuals were forced to work to pay off debts largely fabricated by those in power. Despite being outlawed in 1867,14 the system persisted well into the twentieth century. Of wider scope was sharecropping, a serf-like system in which landowners provided a piece of land to a sharecropper in exchange for a percentage (typically half) of the crop for rent. Typically, the landowner provided seeds, tools and other supplies on “credit” at high interest rates, creating a cycle of debt. Millions of newly freed Black Americans were coerced into sharecropping arrangements through the mid-twentieth century (Daniel 1972; Du Bois 1935; Blackmon 2008).
Newly freed Black Americans faced de jure and de facto exclusions from the non-agricultural labor market. In 1857, in its Dred Scott15 decision, the Supreme Court determined that Black Americans were not citizens and thus could not claim privileges of liberty, including the ability to freely enter into employment contracts. After emancipation, southern states developed draconian Black Codes, derived from the earlier slave codes, to regulate the labor of newly freed slaves and emulate the then defunct slave-plantation economy (Perea 2010). Black Codes were first devised in Mississippi and South Carolina, but by 1866 were widely adopted in every southern state. These oppressive laws forced Blacks to sign abusive labor contracts on plantations, prevented Blacks from engaging in non-agricultural occupations, and often used criminalization to coerce indentured servitude or debt slavery.
Even after the passing of the Thirteenth and Fourteenth Amendments, states continued to coerce Black workers into agricultural and domestic service by replacing Black Codes with state-enforced racial segregation. Jim Crow laws prohibited Blacks from gaining adequate education and encouraged the discriminatory exclusion of Blacks from educated labor forces. Although some Blacks were able to gain access to higher paying jobs as civil servants, President Woodrow Wilson issued policy directives in 1913 segregating the federal government (Wolgemuth 1959). Wilson’s policy demoted and removed Black Americans from agencies with high numbers of Black employees, like the Postal Service, and established de jure systems of federal employment discrimination (Xu and Aneja 2020).
For many White workers, the New Deal brought revolutionary wage and employment benefits like Social Security, collective bargaining rights, and minimum wage requirements. However, legislation including the National Industrial Recovery Act of 1933 (NIRA),16 Social Security Act of 1935 (SSA),17 and Fair Labor Standards Act of 1938 (FLSA)18 contained facially race-neutral restrictions that effectively prevented Black workers from obtaining those same benefits. The SSA and the FLSA both excluded “domestic” and “agricultural” workers and thus together barred the overwhelming majority of Black American laborers from wage protection benefits like minimum wage, overtime pay, youth employment regulation, and Social Security (Canny 2005). The NIRA allowed southern states, where approximately 75 percent of Black workers were employed in domestic or farm labor, to pay drastically lower minimum wages for these occupations (Ray and Perry 2020). In effect, the New Deal elevated White workers, advanced wealth and wage disparities, and left Black workers in legally ghettoized jobs in the agricultural and domestic sectors in a wage basement (Canny 2005).
In the wake of World War II, the New Deal, and the Great Migration, millions of Black Americans fled the racial terrorism and plantation economy of the South for northern cities (Schelhas, Hitchner, and McGregor 2019; Wilkerson 2010). Over subsequent decades, African Americans often experienced severe social and economic marginalization within inner cities. This marginalization was the consequence of a set of mutually reinforcing spatial and industrial changes in the country’s urban political economy that converged to undermine the material foundations of the traditional ghetto. There were a number of major structural shifts that took place. These included the decentralization of industrial plants between World War I and World War II and the loss of good manufacturing jobs to both overseas and Sunbelt states at the very time that Black Americans were leaving the South and migrating to northern and rustbelt cities. The deconcentration of metropolitan economies and the shift toward service industries and occupations intensified the marginalization of many urban African Americans (Wacquant and Wilson 1989).
Against the backdrop of American cities, an era of mass incarceration that began in the 1970s depressed the wages of African Americans and the economic viability of Black communities. From policing to prosecution to punishment and prison, there are vast racial disparities. Although Black Americans are 13 percent of the population, they make up 37 percent of prisoners and jail inmates, with arrest rates of more than six times the rate of White Americans (Prison Policy Initiative 2023). The impact on Black wages is significant because having a record of incarceration decreases one’s income by 52 percent, with an average lifetime earnings loss of nearly half a million dollars (Craigie, Grawert, and Kimble 2020). Indeed, simply having a criminal record dramatically decreases a Black or White man’s likelihood of getting job, and yet a White man with a criminal record is still more likely to get a job than a Black man without one. For Black workers with a criminal record, mass incarceration represents the convergence of race discrimination and labor market bias against those with a criminal record, not unlike the Black Codes (Alexander 2012).
Deindustrialization and deunionization both affected Black workers. Black private-sector unionization rates surpassed those of White workers for decades as Black Americans sought protection against discriminatory treatment and economic inclusion. Consequently, the subsequent decline of labor and deunionization disproportionally affects the earnings of Black Americans (Rosenfeld and Kleykamp 2012), because even mild forms of racial discrimination have a bigger impact on those at the bottom of the American class order (Wilson 1989).
Even a cursory history of racial discrimination and disparity is not merely descriptive but also dispositive as to the Black wages, income, and disadvantage in the labor market. Indeed, the effect of differential economic treatment or investment in one group of people may persist for generations. The multigenerational component of wealth accumulation enables disparities to persist, and in the case of Black Americans, the legacy of disparity is reinforced by ongoing systemic barriers, such as discrimination, that curtail economic success (Edwards 2022). Even small levels of bias in education, income, and wealth can compound to create significant differences in outcomes in these metrics over time (RAND Corporation 2023). In 2022, a Black worker’s annual salary was 13 percent less than that of a White worker of the same age and gender, living in the same region, and with the same education (Leonhardt 2023). If we compare hourly wages, the median Black worker (not controlling for age, gender, and other factors) earned 24.4 percent less per hour than the typical White worker.19 This is an even greater wage gap than in 1979, when it was 16.4 percent (Wilson and Darity 2022). The cumulative racial wealth gap compounded over generations of families and lives is staggering—at least $14 trillion (Darity and Mullen 2020).
AUDIT OF GENERAL REPARATORY COMPENSATORY PROGRAMS
We have established that Black Americans were victims of multiple, interrelated harms that directly impaired health, earnings capacity, and right to life, liberty, and the pursuit of happiness. The U.S. government has repeatedly compensated individuals for parallel nonracial harms that directly impaired health, earnings capacity, and the right to life, liberty, and the pursuit of happiness. The government has frequently assumed responsibility for providing financial redress when Americans have experienced physical harms or economic loss through no fault of their own. Categories of those harmed who have been compensated include coal miners; farmers whose crops have failed; workers whose companies have gone bankrupt; victims of terrorism and natural disasters; people exposed to nuclear radiation; military veterans; individuals wrongfully convicted in the legal system; people denied earnings on tribal lands; fishermen facing depleted fish stocks; individuals harmed by pesticides, toxins, vaccines, or medical devices; workers and businesses affected by U.S. trade agreements; depositors in banks; and numerous other categories.
Compensation is a subset of the broader definition of reparations, which may involve issuing apologies, guarantees of nonrepetition, restoring those harmed to their original condition, establishing memorials, and other measures of restitution. Although the United States has seldom engaged in the full range of measures, the government has paid reparatory compensation on many occasions and continues to do so, both to people who were directly affected and in some instances, to their survivors and descendants.
Much of the U.S. public experienced this norm of reparatory compensation during the COVID-19 pandemic. In March 2020, the federal government enacted massive, bipartisan legislation that provided direct relief to individuals and businesses who lost (or were in danger of losing) jobs, income, wages, benefits, housing, food, transportation, childcare, health care, pensions, and other benefits due to the pandemic (Data Lab 2021). Between March 2020 and September 2021, Congress approved nearly $6 trillion (in eight pieces of legislation)20 to support the economy, including $2.1 trillion in direct cash relief payments and $1.4 trillion in loans and grants to support businesses to cover payroll costs, mortgages, rent, and utilities.
Although the scale of this effort was unprecedented, the basic concept was consistent with long-standing U.S. tradition for providing partial financial amends and benefits to individuals who have experienced certain personal injuries, losses, or economic hardship. Hundreds of federal, state and local programs provide some combination of restitution, compensation, and rehabilitation to victims of harms. Millions of Americans are eligible for compensation due to personal injury, illness, disease, economic losses, exposure to toxins, disasters, and other reasons. Although these programs do not seek to make the injured party whole, they provide pathways for people to recover some of their losses.
Perhaps the most widely recognized category of individuals who receive federal compensation for harms are military veterans. The U.S. Department of Veterans Affairs (VA) is the second largest department in the federal government, with a budget exceeding $325 billion per year (U.S. Department of Veterans Affairs 2023). It administers health care, disability compensation and benefits (housing, education, job training, employment preference, and so on) to millions of men and women who have served in the military, and their families and survivors. Approximately 40 percent of Iraq and Afghanistan–era veterans have already been awarded disability benefits for the rest of their lives for medical conditions incurred during or aggravated by military service. The estimated cost of these benefits, payable over the next thirty years, exceeds $2.2 trillion (Bilmes 2021).
Some may question whether it is relevant to compare the history of racial-based harms to broader nonracial harms such as losing a pension or exposure to nuclear radiation. We find these comparisons germane for several reasons. First, they demonstrate that the U.S. government often decides that society (as a whole) will be better off if it compensates for certain losses or hardships that individuals have experienced while contributing to the nation. Indeed, the government even uses the word reparations to describe certain compensation for losses. For example, the Commodity Futures Trading Commission (CFTC)—the federal agency that regulates the commodity futures, commodity options, and swaps trading markets—maintains a “Reparations Program” (Commodity Futures Trading Commission, n.d.). Since 1975, this program has helped those who have suffered losses to claim financial damages, through CFTC adjudication (Commodity Futures Trading Commission 2023). Second, the sheer breadth of nonracial harms and corresponding reparatory compensation programs demonstrate the federal government’s programmatic expertise and experience in calculating financial values for a wide variety of harms.
Given that Black Americans have long been deprived of the ability to accumulate wealth, we argue that it is consistent with precedent for the country to choose to secure a more contented and fair society by providing compensation to Black Americans for unpaid contributions to the country and in recognition of the suffering endured. Additionally, by acknowledging the precedent for reparative compensation in parallel, but nonracial circumstances, it is easier to imagine and to articulate the case for reparations related to slavery and its aftermath.
Given space constraints, we cannot examine all reparatory compensation programs in this article. We describe several of them briefly and outline three programs in greater depth in the following paragraphs. (Table A.1 provides a sample of additional programs).
First are numerous programs dealing with harms to health and well-being. For example, the Federal Coal Mine Health and Safety Act,21 enacted in 1969, provides monthly reparatory compensation for individuals who contracted black lung or other chronic lung diseases by working in or near coal mines. It is funded by an industry-wide tax on coal manufacturers and sellers,22 although coal mine bankruptcies have shifted the costs to the federal government (U.S. Government Accountability Office 2019). The Black Lung Program has paid out over $47 billion since 1970 (U.S. Department of Labor 2020). The National Vaccine Injury Compensation Program (VICP), set up in 1986, compensates individuals who suffer injury or death from government-recommended vaccinations.23 The program is funded through a $0.75 excise tax on every vaccine dose delivered in the United States, including seasonal flu, tetanus, and childhood vaccines. The VICP has paid out some $5 billion in compensation to about nine thousand individuals (Health Resources and Services Administration 2021). A similar program, the Countermeasures Injury Compensation Program, enacted in 2005, pays individuals who suffer serious side effects related to vaccines not covered by the original program, such as anthrax, smallpox, Zika, and COVID-19, or harms due to medication, devices, or diagnostic instruments (Meyers 2020).
In the agricultural sector alone, the federal government maintains hundreds of programs established to mitigate potential economic harms. Many were set up in the Dust Bowl years of the 1930s, when hundreds of thousands of farming families lost crops and livestock and went bankrupt or became homeless due to severe drought, storms, pests, and overplanting. At the time, the federal government provided some $1 billion ($18.7 billion in 2023 dollars) in compensation to assist those affected in the region (Warrick 1980). It subsequently established an extensive safety net to ensure that farmers and landowners today are protected against such economic losses. Today the United States spends billions of dollars each year to insure, provide loans, and give actual payouts to farmers and landowners for loss of income on crops or livestock, or damage to yields or quality of the output due to weather, pests, invasive species, plant diseases, fire, exposure to toxins, defective soil, water, predators, market fluctuations in commodity prices, adverse impact from U.S. trade agreements, or other factors. Depending on the program, beneficiaries may include people who own or control farms, rangeland, grassland, pastureland, non-industrial forest land as well as others involved in agriculture. Specific programs have been established for bees and other pollinators, dairy, cotton, grain, hay, rice, sugar, hogs, fruits, vegetables, trees, feedstock, farm-raised fish, livestock, crop storage, forests, biofuels, organic farming, underserved farmers, young farmers, heirs, farm loans, farm equipment, and other items (Farm Service Agency 2020). Some of these are huge programs. For example, between 2018 and 2020, the Department of Agriculture Market Facilitation Program paid $28 billion to more than five hundred thousand farmers to offset the impact of tariffs on China (Charles 2019). Thousands of farmers received more than $100,000 each, more than twice the financial harm they suffered due to the tariff, according to independent economists (Charles 2019).
Most farm safety net programs are provided free of charge or for a nominal participation fee. Taxpayers bear most of the costs, including subsidies paid to farmers and to insurance companies, and costs of indemnity payments for excess losses. For example, the Federal Crop Insurance Corporation (FCIP) provides risk protection and financial support to U.S. farmers in the event of poor market conditions (low farm prices) or natural disasters. It subsidizes insurance for producers of 130 major crops at an average cost to taxpayers of $8.2 billion per year (Rosch 2021). The FCIP is a public-private partnership in which farmers select coverage from one of eighteen heavily government-subsidized private insurance companies. In the case of serious weather disaster, the federal government pays the entire premium (U.S. Department of Agriculture 2021). The FCIP insures 96 percent of all U.S. cotton crops and more than 85 percent of soybeans, corn, and wheat crops (Shields 2015). Dairy, specialty crops (e.g., ginseng), livestock, Christmas tree producers, and special grazing animals (such as alpacas, buffalo, bison, elk, emus, goats, llamas, reindeer, and sheep) all have their own support programs (Farm Service Agency 2021). Similarly, other programs subsidize the commercial fishing industry and recompense fishermen for losses due to weather disasters and economic conditions (Wilson and Jarrett 2021).
The federal government also provides monetary compensation and other benefits to Americans who are victims of adverse weather conditions. These include acts of nature (floods, droughts, hurricanes, tornadoes, earthquakes, wildfires, freeze, hail, excessive wind, excessive moisture, volcanic activity, plant disease, excessive heat, and other adverse weather) and other types of disasters, such as oil spills, terrorist attacks, radiation leaks, building collapses, insect infestations, predator attacks, crimes, fraud, and economic crises. These programs are administered in three main ways: direct federal payments and actions from agencies such as the Federal Emergency Management Agency, state agencies following federal designation of disasters, and government-subsidized programs to insure people in order to mitigate economic hardship in the event of disasters. Specific programs have been established for victims and family members of the Iran Hostage Crisis, the Oklahoma City Bombing, and acts of terrorism. For example, the September 11th Victim Compensation Fund has already paid out $9.4 billion to 9/11 victims and their families, including first responders, cleanup workers, office workers, residents, and others who were injured, made ill, or lost family members (September 11th Victim Compensation Fund 2020). In 2021 alone, the fund paid out $1.5 billion to ten thousand claimants (Weisfuse & Weisfuse, LLP 2022). Claims may be filed until 2090; hence the fund is liable for potentially billions more in future years.24
Americans who are harmed by U.S. trade policies are also eligible for financial compensation and for certain benefits, such as job training. The Trade Act of 197425 was set up to provide “relief from injury caused by import competition;”26 its predecessor, the Trade Expansion Act of 1962, was enacted to render assistance to “those who suffer as a result of national trade policy” (U.S. Congress 1987). The accompanying Trade Adjustment Assistance (TAA) program (Congressional Quarterly 1963) provides retraining subsidies, income support, and health-care tax credits to workers whose employment was reduced or terminated due to rising imports, a shift in production to a foreign country, or market conditions (Collins 2018). The program is designed to assist workers or industries hurt by tariffs. For example, the president can authorize the Department of Labor to pay unemployment benefits of higher and longer duration (than other federal plans) plus retraining and relocation allowances, loans, loan guarantees, technical assistance, and special tax deductions. Since 1974 the program has served more than five million Americans. In FY2022, it served 14,608 participants (U.S. Department of Labor 2023).
We now describe three programs that are highly relevant to slavery reparations. The first is U.S. reparatory compensation for exposure to nuclear test fallout. This example is comparable in that the compensation started decades after the original harms took place and the effort to establish it involved nationwide hearings and oral histories; the program is large scale and ongoing; and compensation may be paid to descendants. The second example relates to federal compensation for the loss of private pensions, which echoes some of the early efforts of reparations pioneer Callie House to seek deferred compensation for lost wages. The third example involves the history of Indian land rights due to similarities in the harms, concepts, and the history of how the compensation was enacted.
COMPENSATION RELATED TO EXPOSURE TO U.S. NUCLEAR WEAPONS TESTING
During the early years of the Cold War, the United States conducted extensive nuclear weapons testing in western U.S. states and in the Pacific atoll of the Marshall Islands.27 It conducted 1,054 atomic weapons tests, including more than one hundred atmospheric tests, in which the weapons released radioactive material above ground. Hundreds of thousands of people living in the vicinity of the test sites were exposed to radiative contamination from the tests and related activities such as mining and transporting uranium. The U.S. military also detonated sixty-seven nuclear bombs in the Marshall Islands, with a firepower equaling the energy yield of seven thousand Hiroshima bombs (Szymendera 2022b; Rapaport and Hughes 2022). Local people breathed, absorbed, drank, and ate considerable amounts of radioactivity for decades. In the 1950s, numerous reports were filed of cancers, diseases, birth defects, fertility problems and other ailments. Family members and survivors started lobbying for redress. This eventually led to a complex effort by survivors to document the widespread damage caused by the government’s nuclear testing program, which included congressional hearings and local hearings at which descendants told stories of deceased relatives who had suffered harms. The effort yielded three major pieces of legislation (subsequently expanded) that has paid roughly $33 billion so far, covering some two hundred thousand claims by survivors and descendants.
Early reparations legislation resulted from Marshall Island inhabitants suing the United States in the U.S. Court of Claims. To process those claims, the independent Nuclear Claims Tribunal was established in 1986, and the government set up a $150 million Nuclear Claims Fund to compensate victims in exchange for the islands agreeing to “espouse and dismiss” the damages claims of its citizens.
As part of the agreement, the federal government issued an apology:
The Government of the United States accepts the responsibility for compensation owing to citizens of the Marshall Islands, or the Federated States of Micronesia (or Palau) for loss or damage to property and person of the citizens of the Marshall Islands, or the Federated States of Micronesia, resulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958. (U.S. Department of the Interior 1986)
The United States agreed to compensate for harms, “past, present and future … which are based on, arise out of, or are in any way related to the Nuclear Testing Program” related to loss or damage to persons or property as a result of the U.S. nuclear testing program.28 Due to claims and damages far exceeding the original amount of the trust fund, between 1954 and 2004 the federal government spent between at least $834 million (in 2022 dollars) on paying for individual compensation, health care, cleanup of contaminated sites, and housing resettlement efforts (Lum et al. 2005). By December 2004, the Nuclear Claims Tribunal had paid personal injury awards to approximately two thousand individuals. The program ceased payments in 2011 after the funds were depleted, despite efforts to continue the payouts.
The second major legislation for nuclear testing reparations was enacted in 1990, more than forty years after family members in Nevada and other testing areas started calling attention to the health problems suffered by individuals who had been involved in nuclear weapons research, manufacturing, transportation, waste disposal, or who lived in the vicinity of such activities. It was estimated that potentially six hundred thousand people were affected, including contractors who had worked for corporations including Lockheed Martin, DuPont, Johnson Controls, and Bechtel (Silver 2005) and people exposed to mining in the Navajo Nation and other Indigenous lands.29 After decades of advocacy, in 1990 the federal government enacted the Radiation Exposure Compensation Act (RECA),30 which established a $100 million trust fund to provide “compassionate lump-sum payments” to individuals harmed by exposure to radiation from atmospheric nuclear weapons testing or uranium mining. The enacting statute read as follows: “The Congress apologizes on behalf of the Nation to the individuals described in subsection (a) and their families for the hardships they have endured.” This legislation was specifically intended to provide restitution. As U.S. Deputy Assistant Attorney General Jeffrey Bucholtz later testified to the Senate Judiciary Committee:
From 1945 through 1962, the United States conducted extensive atmospheric nuclear weapons testing as part of our Nation’s Cold War security strategy. Critical to this endeavor was the processing of uranium conducted by individuals employed in the uranium industry. Many of those individuals subsequently contracted serious illnesses, including various types of cancer, due to their exposure to radiation. In order to make partial restitution to those individuals for their sacrifices, Congress passed the Radiation Exposure Compensation Act.” (U.S. Congress 2004)
The program awards tax-free lump-sum compensation ranging from $50,000 to $100,000 for uranium workers (miners, millers, or transporters), workers and others present at the test sites, and downwinders (people who lived or worked downwind from test sites) who developed certain illnesses, (e.g., cancer, fertility impairment, thyroid problems) as well as medical care.31 If the victim is deceased, the benefit is paid to survivors according to an order of precedence: spouse, children, parents, grandchildren, grandparents, other designated relative.32
RECA was amended to increase the Trust Fund from $100 million to “such sums as may be necessary to carry out [the Act’s] purposes” (Lister and Redhead 2009), expand eligible beneficiaries to include uranium millers and transporters, lower the proof threshold, add six more states to eligibility, allow denied claimants to resubmit their claims or to appeal in district courts, remove the constraint that disease onset must be within thirty years of first exposure, and “explicitly consider” Native American law and customs in processing claims from Native peoples. The program is currently extended through 2024.33 As of May 2022, RECA had paid out more than $3.5 billion for 39,302 claims (Szymendera 2022b).34 RECA led to a wider reckoning with the harms inflicted by the nuclear weapons race during the Cold War. In 1999, Dr. David Michaels, then Assistant Secretary of Energy for Environment, Safety and Health, convened a series of hearings around the country, co-chaired by local members of Congress, raising attention to these harms and the suffering they had caused. This provided the opportunity for many people to tell their stories and describe the suffering of the victims. Over the next decade, there were additional national hearings.
In 2000, more than half a century after the United States tested the first nuclear bomb, Congress enacted a third major program, the Energy Employees Occupational Illness Compensation (EEOIC) program.35 This sweeping program of reparatory compensation provides up to $150,000 in cash stipends plus medical care to a wider group of individuals (and survivors) of exposure to nuclear materials in weapons testing or production. It includes those diagnosed with illnesses linked not only to radiation, but also to any illness caused, contributed to, or aggravated by any toxic substances (such as asbestos, solvents, heavy metals) encountered in that environment. The eligibility standards for this program were designed to favor the claimant, as it involved “reconstructing past exposures from interviews and documentation; using confidence intervals to express statistical uncertainty; and erring on the side of the worker” (Silver 2005). President Clinton’s Executive Order 13179, which established the program, stated,
Since World War II, hundreds of thousands of men and women have served their Nation in building its nuclear defense. In the course of their work, they overcame previously unimagined scientific and technical challenges. Thousands of these courageous Americans, however, paid a high price for their service, developing disabling or fatal illnesses as a result of exposure to beryllium, ionizing radiation, and other hazards unique to nuclear weapons production and testing… . While the Nation can never fully repay these workers or their families, they deserve recognition and compensation for their sacrifices. (Clinton 2000)
The program is administered by the Department of Labor, which handles claims, and the Department of Energy, which provides worker and facility data. As of 2023, the EEOIC Fund had paid out roughly $28 billion program in medical and financial compensation to more than 135,000 workers and survivors (see table 1; U.S. Department of Labor 2022). The fund is financed through the mandatory federal budget and not subject to annual appropriations (Szymendera 2020).
Reparatory Compensation for Nuclear Testing
COMPENSATION FOR LOSS OF DEFERRED COMPENSATION
At the end of the Civil War, most former slaves had no financial resources, property, residence, or other tangible assets to show for their years of work. Yet relatively soon the concept of pensions was introduced to provide deferred compensation to elderly Union Civil War veterans for their service during the war (Glasson 1918). The concept of pensions became a popular idea. In 1875, the American Express Company established the first private pension plan in the United States, and shortly thereafter utilities, banking, and manufacturing companies also began to provide pensions (PBGC 2022a).
In 1894, extending this logic, the Reverend Isaiah H. Dickerson and Callie Guy House cofounded the National Ex-Slave Mutual Relief Bounty and Pension Association to advocate for pensions for ex-slaves for their years of unpaid labor. The goals included to petition Congress for legislation that would grant pensions to former slaves, particularly those who were elderly, and to provide aid and burial expenses. At that time, 21 percent of the Black population had been born into slavery, so providing for them and their caregivers required only a relatively modest sum (Berry 2005). The association proposed a detailed pension payment scale based on the age of the beneficiaries (Perry 2010).36
In 1890, the first ex-slave pension bill37 was introduced in Congress at the request of Walter R. Vaughan of Omaha, a White former mayor of Council Bluffs, Iowa, who believed that pensions would boost the southern economy as well as benefit former slaves. House and Dickerson continued to raise the profile of the issue, and the movement gained some traction. In July 1914, Callie House launched a class-action suit against the federal government, claiming $68,073,388.99, which was the amount collected as taxes on cotton between 1862 and 1868.38 Ultimately political opposition to the idea of granting pensions to ex-slaves was strong and the suit was dismissed.
In this context, it is reasonable to view the original Union promise of forty acres, the lack of compensation for work post-slavery, the barriers against acquiring property and earning a fair wage, and the legacy of false and coerced debts as instances of Black Americans being overdue to receive deferred compensation.
For the past half century, the federal government has accepted responsibility for individuals who lose deferred compensation in the form of pensions, even though these losses are typically caused by bankruptcy or mismanagement by the private sector. The major federal compensation program is the Employee Retirement Income Security Act of 1974 (ERISA),39 Public Law No. 93–406, which was set up explicitly to protect people from losing their retirement benefits due to factors beyond their control (BenefitCorp 2020). The principle is that if a worker loses a pension for any reason the government steps in to replace part of it so that a person’s labor is not uncompensated. The government protects against loss of benefits if private pensions are terminated or cannot pay benefits due to bankruptcies, Chapter 11 reorganizations, liquidations, downsizing, layoffs, bank closures, or insolvency. In 2018, some 140 million Americans had these retirement plans, including thirty-four million with traditional defined benefit pensions (Employee Benefits Security Administration 2021). President Gerald Ford signed the ERISA bill on September 2, 1974, Labor Day, stating,
Many workers have ultimately lost their benefits—even after relatively long service—because when they left jobs, they thereby gave up rights to hard-earned pension benefits. Others have sustained hardships because their companies folded with insufficient funds in the pension plan to pay promised pensions… . Today, with great pleasure, I am signing into law a landmark measure that may finally give the American worker solid protection in his pension plan. (PBGC 1974)
ERISA guarantees payments to retirees in two schemes. For single-employer plans, the Pension Benefit Guarantee Corporation (PBGC) pays retirees directly up to a certain amount if the plan fails. For multi-employer plans, the PBGC provides financial assistance to the plans themselves so that they remain solvent (that is, it does not take over and pay retirees directly). In FY2022, the PBGC paid more than $7 billion in monthly retirement benefits to more than 960,000 retirees in single-employer pension plans that had ended or failed (PBGC 2022b). The PBGC also provided $226 million in loans to 115 failed multi-employer plans to protect the benefits of an additional 93,525 retirees (Myers and Topoleski 2021). The PBGC is funded through a combination of insurance premiums paid by the companies whose plans are protected: assets of pensions that it takes over, recoveries in bankruptcies from the companies responsible for the plans, and the PBGC’s investment of these assets (see table 2).
Reparatory Compensation for Loss of Deferred Compensation
COMPENSATION FOR INDIAN LAND RIGHTS
The American Indian Trust Fund is an example of reparatory compensation, paid out today to the descendants of tribes whose land rights were stolen and mismanaged in the nineteenth century. In the 1880s, many American Indian nations signed treaties with the United States that ceded the title of their lands to the federal government in exchange for sovereignty, health care, education, and protection. In many cases, these nations retained resource rights, meaning they were entitled to revenue generated from activities on the lands, including drilling, grazing, hunting, mining, and timber production (U.S. Department of the Interior 2021). The lands held in common by members of tribes were subdivided into small individual allotments under the Dawes Act of 1887 (over the strong opposition of the tribes). The federal government legally operated as the fiduciary banker for funds raised.
For more than a century, these funds were mismanaged or stolen. A 1993 report found that the Bureau of Indian Affairs trust operation lacked adequate written procedures and policies, balances were not reconciled, and lease operators were not audited (U.S. General Accounting Office 1993). An Arthur Anderson & Co. study of transactions between 1973 and 1992 found that $2.4 billion in trust funds were missing in that twenty-year period alone (Sahagun 1996). Since most trust agreements dated to 1887,40 it was evident that the total losses for a century of mismanagement were far higher (Sahagun 1996).
During this period, the original allotments were “fractionated” among the heirs of six succeeding generations so that some parcels were owned by hundreds of thousands of people. In 1996, Elouise Cobell along with the Native American Rights Fund, filed a class-action lawsuit—Cobell v. Salazar41—against the Department of the Interior for the mismanagement of the Indian Trust Funds on behalf of three hundred thousand tribal members (Rothberg 2020).42 These members were descendants of families who had received little or no payment in the 122 years since the Dawes Act. Cobell donated most of her $310,000 MacArthur Genius grant to finance the lawsuit (Rothberg 2020). In 2009, President Barack Obama signed a $3.4 billion settlement, far less than the $48 billion that the descendants of the original trust holder sought (Rothberg 2020). The settlement included $1.5 billion for the members of the lawsuit, $1.9 billion for a Land Consolidation Program, and $60 million for a college scholarship fund for Native American youth. It will pay out about $1.5 billion to compensate about a half a million Native Americans. Some will receive a flat payment of $1,000 and others will receive a little more when the records of their trust accounts are located and indicate that more income is due.
The Department of the Interior now holds approximately 44 million acres in fiduciary trust for the sovereign nations and an additional 11 million acres belonging to individual tribal members. The Bureau of Trust Fund Administration, the entity that manages the monies from these lands, oversees $5 billion of investments and disburses more than $1 billion annually to nations and individuals (Bureau of Trust Funds Administration 2015). By 2030, 11 million individuals will have a stake in trust lands and be eligible for small payments. In one case, revenue from a forty-acre parcel was divided among 439 owners, two-thirds of whom receive less than one dollar annually (Reis 2009). In addition, Congress has enacted several other such settlements, including a $5.8 billion settlement related to water rights, and the Alaska Native Claims Settlement Act of 1971,43 which provided 44 million acres of public land and $962 in cash payments to Indian organizations (see table 3; University of Alaska, n.d.).
Indian Land Rights
Taken together, these compensation programs illustrate four precedents that are important for designing reparatory compensation for slavery-related harms. First, the programs acknowledge that such harms have taken place, and the federal government accepts some degree of responsibility. Second, the development of the legislation often makes it possible for family members, descendants, and communities to tell their stories and bear witness to the harms that had been inflicted on victims. Third, the programs pay direct financial redress, in addition to providing other benefits (such as medical care or land reclamation). Fourth, these programs show the capacity of the government to administer such claims, including identifying beneficiaries, processing applications, conducting outreach, and amending the programs as needed. Above all, the range of harms for which the federal government provides some form of compensation highlights the absence of compensation for harms to Black Americans for comparable harms. Table 4 illustrates this lack of comparability, using a small subset of harms.
Selected Harms and Categories of Compensation
REPARATORY COMPENSATION PROGRAMS DEDICATED FUNDING
A key finding of our research is that the federal government draws on designated fees, trust funds, excise taxes, subsidized insurance premiums, and customized financial arrangements to help pay for the wide system of reparatory compensation. For example, when Silicon Valley Bank collapsed in March 2023, President Biden pledged to cover all uninsured deposits, assuring Americans that “no losses will be borne by the taxpayers” (White House 2023). This was possible because depositors were reimbursed by the fees that banks pay into the FDIC. The FDIC insurance fund is funded by a levy on bank deposits, in which banks pay 12 cents for every $100 deposited into the FDIC insurance fund (Getter 2014). When a bank fails, depositors are made whole by this fund, which currently holds about $125 billion. The insurance covers only deposits up to $250,000, but in fact uninsured depositors have been paid out in full during many bank failures (FDIC Podcast 2021). The National Credit Union Administration has similar insurance for credit union accounts.
A number of federal reparatory compensation programs are financed using pooled risk schemes funded primarily by market participants such as the FDIC bank deposit insurance, pension guarantees, and crop insurance. The government also uses excise taxes, often in exchange for full or partial legal indemnity, such as the National Vaccine Injury Fund and the Black Lung Disability Trust Fund; programs funded through a combination of taxation and fees, such as the 9/11 Victims Compensation fund paid partially through a fee on visas; as well as programs funded largely through general taxation.44 Numerous federal agencies administer these programs, including the Departments of Labor, Justice, Commerce, Treasury, and Agriculture. Typically, when the government expands, amends, or modifies its initial effort to provide reparatory compensation, the government ends up over time with a cluster of related programs. Together, these efforts provide varying levels of benefits for victims depending on how the harm affected them, and there may be separate sources of funds.
Subsidized insurance is also a relevant concept. The Government Accountability Office has identified 157 distinct plans through which the federal government assumes the insurance risk against harms that may occur for activities that are administered by more than thirty federal agencies. These cover numerous activities related to health, life, disability, and property-casualty, including up to $8 billion in federally subsidized insurance for art exhibits (National Endowment for the Arts 2023), and programs to insure individual claims up to $1 billion for damage from oil spills if the responsible party does not pay through the Oil Spill Liability Trust Fund (OSLTF), which is funded through a per-barrel excise tax on oil. From FY2007 to FY2018 the OSLTF paid out $3.4 billion in claims, but this was offset by excise tax receipts, penalties and interest it received of $9.54 billion (National Pollution Funds Center, n.d.; U.S. Government Accountability Office 2005).
Compensation and benefits to victims and survivors are paid in several forms, including cash stipends, health-care guarantees or subsidies, loans, tax rebates, education, housing, training, relocation and other benefits, as well as payments to certain communities, and geographical locations. The existence of these programs shows not only the creativity of the federal government in devising methods of compensation, but also the government’s ability to structure and administer programs, to define eligibility standards, and to provide oversight on the distribution of benefits.
Thus, although the legacy of harms has created a vast wealth gap between Black and White Americans, we believe it is entirely feasible for the government to identify sources of dedicated funding that could begin to pay for reparations programs. Such funding streams might include imposing modest excise taxes on home sales, home insurance policies, dedicated capital gains or wealth taxes, dedication of savings from decommissioning of pennies for this purpose, dedicated securities financing for baby bonds, or other mechanisms.
CONCLUSION AND POLICY RECOMMENDATIONS
Since the founding of the American republic, calls for reparations have accompanied calls for the emancipation of enslaved Black Americans. These demands have been rebutted by the three arguments, that reparations, even if morally justified, are too administratively difficult, too financially expensive, or for racial harms too long ago. Accordingly, granting reparations to Black Americans, even relative to reparations granted to unconstitutionally interned Japanese Americans and genocidally dispossessed Native Americans, is considered aberrational and exceptional. In a word, the prospect of reparations for the racial harms of Black Americans seems unprecedented, even impossibly daunting.
In response, this article set forth an illustrative taxonomy of racial harms that Black Americans endured. Further, it described an audit of federal programs addressing a wide variety of nonracial harms, an equally broad variety of means for addressing those harms, and an expansively diverse set of beneficiaries. The audit of federal programs revealed the existence of a long-standing norm of the federal government compensating Americans who have been harmed by policies, government actions and inactions, circumstances, and acts of nature beyond their control. The fiscal means by which the federal government actualizes this norm constitutes what we term reparatory compensation. The numerosity and diversity of reparatory compensation programs makes clear that reparations for nonracial harms is regular and routine. Juxtaposing the audit of reparatory compensation programs with the taxonomy of reparation-less racial harms makes clear that America provides reparations to nearly everyone but Black Americans, even for comparably severe harms. We conclude with three policy recommendations: executive or congressional action, federal fiscal analysis, and public education.
Executive and Congressional Action
The president should convene a national commission to study and propose a scheme of federal reparations, authorized by an Executive Order or federal legislation; and charge the commission to use the breadth, variety, and diversity of reparatory compensation programs to develop a reparations program that addresses of the full range of racial harms, including specifically the racial wealth gap.
Federal Fiscal Analysis
Accordingly, the president should direct the Office of Management and Budget and other federal agencies to conduct an audit of federal reparatory compensation programs detailing the budget, beneficiaries, legal authority, and harms alleviated by such programs; conduct an audit of all relevant federal reparatory compensation programs since 1865; conduct an audit of reparatory compensation programs related to the denial of G.I. benefits to Black veterans in World War II and the Korean War; review and collect stories of World War II and Korean War Black vets illustrative of the taxonomy of racial harms; with the support of selected historians and economists, create a taxonomy and study of the racial harms described in the existing federal collection of digitized collection of slave narratives; with the foregoing, issue a national reparatory compensation report as an evidentiary, analytic, and programmatic predicate for the feasibility of reparations for Black Americans; and draft a fiscal model of a reparatory compensation program for all living Black World War II and Korean War veterans (and their direct descendants) who were denied education and housing benefits. This manageable model is meant only to illustrate the variety, efficacy, and impact of reparatory compensation, not limit the scope of reparations for Blacks.
Public Education
The president should direct the commission to conduct nationwide field hearings and to convene listening sessions for the public to share stories, family histories, and documents to narratively inform the study of reparatory compensation for Black Americans, and provide the public with data related to reparatory compensation in relatable terms, on accessible platforms, in symbolic venues related to Black history.
As the foremother of the reparations movement Callie G. House declared in 1899, “If the Government had the right to free us, she had a right to make some provision for us; and since she did not make it soon after Emancipation, she ought to make it now” (Berry 2005, 50). More than 124 years later, this article makes it clear that the norm, precedent, and federal expertise are in place to make reparatory compensation a reality for Black Americans—now.
Appendix
Selected Federal Reparatory Compensation Programs
FOOTNOTES
↵1. An Act for the Disposal of the Public Lands for Homesteads Actual Settlement in the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida (Southern Homestead Act), Pub. L. No. 39-127, 14 Stat. 66 (1866).
↵2. Buchanan v. Warley, 245 U.S. 60 (1917).
↵3. Shelley v. Kraemer, 334 U.S. 1 (1948).
↵4. Enacted as Titles VII–IX of the Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 73.
↵5. National Housing Act of 1934, Pub. L. No. 73-479, 48 Stat. 1246.
↵6. Servicemen’s Readjustment Act of 1944, Pub. L. No. 78-346, 58 Stat. 284.
↵7. The bureau’s efforts to reduce predatory lending have been thwarted (see Pierson 2023).
↵8. Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1850).
↵9. Plessy v. Ferguson, 163 U.S. 537 (1896).
↵10. Brown v. Board of Education, 347 U.S. 483 (1954).
↵11. Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991).
↵12. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
↵13. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023).
↵14. See Act of Mar. 2, 1867, ch. 187, 14 Stat. 546 (codified at 42 U.S.C. § 1994) (abolishing and outlawing peonage).
↵15. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. Const. amend. XIV.
↵16. National Industrial Recovery Act of 1933, Pub. L. No. 73-67, 48 Stat. 195.
↵17. Social Security Act of 1935, Pub. L. No. 74-271, 49 Stat. 620.
↵18. Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 160.
↵19. Due largely to increases in wages for frontline workers, the gap in real earnings between Black and Hispanic workers compared to White and Asian workers narrowed during the pandemic years of 2020 to 2022 (Chakrabarti et al. 2022). However, the long-term gap in earnings, particularly between White men and Black men, shows little change over many years, particularly when accounting for the number of those participating in the labor force (Wicks-Lim 2023).
↵20. See, for example, Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, Pub. L. No. 116-123, 134 Stat. 146; Families First Coronavirus Response Act, Pub. L. No. 116-127, 134 Stat. 178 (2020); Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020); Paycheck Protection Program and Health Care Enhancement Act, Pub. L. No. 116-139, 134 Stat. 620 (2020); Coronavirus Response and Relief Supplemental Appropriations Act, 2021, Pub. L. No. 116-260, 134 Stat. 1909; American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4.
↵21. Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742.
↵22. Congress implemented this industry-wide tax through the Black Lung Benefits Revenue Act of 1977, which amended the Federal Coal Mine Health and Safety Act of 1969. See Black Lung Benefits Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11; 26 U.S.C. § 4121.
↵23. These vaccines are recommended for children and pregnant women. They include diphtheria, hepatitis A and B, mumps, Polio, rubella, Tetanus, varicella, and other vaccines routinely administered and approved by the Food and Drug Administration
↵24. Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act, Pub. L. No. 116-34, 133 Stat. 1040 (2019).
↵25. Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978.
↵26. Trade Act of 1974, Pub. L. No. 93-618, § 201-84, 88 Stat. 1978, 2012-41.
↵27. The U.S military detonated the first-ever atomic bomb at the Trinity Test Site near Arizona in July 1945, three weeks before dropping others on Hiroshima and Nagasaki.
↵28. Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association, June 25, 1983, https://www.doi.gov/sites/doi.gov/files/section-177-agreement.pdf.
↵29. The Environmental Protection Agency has more than five hundred abandoned uranium mines in the Navajo Nation (U.S. Environmental Protection Agency, n.d.)
↵30. Radiation Exposure Compensation Act, Pub. L. No. 101-426, 104 Stat. 920 (1990).
↵31. Medical benefits of $50,000 for certain categories.
↵32. Energy Employees Occupational Illness Compensation Program Act of 2000, Pub. L. No. 106-398, §3630(e)(2), 114 Stat. 1654A-495, 506 (“The right to receive compensation under this section shall be afforded to survivors in the same order of precedence as that set forth in section 8109 of title 5, United States Code”).
↵33. RECA Extension Act of 2022, Pub. L. No. 117-139, 136 Stat. 1358 (codified as amended at 42 U.S.C. 2210 note).
↵34. Early payments deflated to 2022.
↵35. Title XXXVI of the Energy Employees Occupational Illness Compensation Program Act of 2000, Pub. L. No. 106-398, 114 Stat. 1654A-495.
↵36. Ex-slaves seventy years and older were to receive an initial payment of $500 and $15 per month for the rest of their lives; ex-slaves age sixty to sixty-nine would receive $300 and $12 per month; ex-slaves age fifty to fifty-nine would receive $100 and $8 per month; and those ex-slaves younger than fifty years old would receive $4 per month. If formerly enslaved persons were too ill to care for themselves, their caretaker was to be compensated.
↵37. H.R. 11119, 51st Cong. (1890).
↵38. See Johnson v. Mcadoo, 45 App. D.C. 440 (D.C. Cir. 1916).
↵39. Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat. 829.
↵40. Dawes Act of 1887, Pub. L. No. 49-105, 24 Stat. 388.
↵41. The case that became Cobell v. Salazar began as Cobell v. Babbitt. In suits against the Department of the Interior, the named respondent is the secretary of the interior. When Elouise Cobell initially filed suit, the secretary of the interior was Bruce Babbitt; by the time the case was settled in 2009, the secretary was Ken Salazar.
↵42. In 1987, Cobell helped found the Blackfeet National Bank, now the Native American Bank, the first American bank owned by a tribe.
↵43. Alaska Native Claims Settlement Act, Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified at 43 U.S.C. §§ 1601-29h).
↵44. Benefits.gov, 2021, https://www.benefits.gov.
- © 2024 Russell Sage Foundation. Bilmes, Linda J., and Cornell William Brooks. 2024. “Normalizing Reparations: U.S. Precedent, Norms, and Models for Compensating Harms and Implications for Reparations to Black Americans.” RSF: The Russell Sage Foundation Journal of the Social Sciences 10(2): 30–68. https://doi.org/10.7758/RSF.2024.10.2.02. Direct correspondence to: Linda Bilmes, at linda_bilmes{at}hks.harvard.edu, Harvard University, Cambridge, MA, United States; Cornell William Brooks, at cornellwm_brooks{at}hks.harvard.edu, Harvard University, Cambridge, MA, United States.
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