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  • Writer's pictureHarroll Ingram Jr.

Reparations or Restitution?

Black people were enslaved in the United States of America (USA) from 1619 to 1865. During that time, the US Government supported the enslavement, forced unpaid labor, brutalization, and murder of black people in the USA. The Government must atone for their actions. Atonement can take the form of money or land. The Government can give land and/or money to the black descendants of those enslaved people. That atonement is more commonly referred to as reparations.

The initial reparations discussion occurred in 1865 shortly after the enslaved black people were freed from physical bondage. The Government agreed to give each formally enslaved person 40 acres and a mule. Coastal land extending from South Carolina to Georgia was identified for reparations usage. That plan was discarded a few months later by an incoming President (Andrew Johnson). Numerous additional attempts to provide reparations to the formerly enslaved or their descendants were made between the late 1800s and the mid-1900s. None of those attempts were successful. Today, reparations seem to be on the lips, or at least in the minds, of most Americans. Perhaps past attempts were unsuccessful because of the use of the word reparations in each claim. Perhaps the word “reparations” is not a legally sufficient term.

Reparations is defined as the making of amends for a wrong one has done by paying money to or otherwise helping those who have been wronged. The legal definition, as shown in Black’s Law Dictionary, defines reparations as a payment for an injury or damage or redress for a wrong done. Understanding that slavery was legal during the enslavement of black people in the USA, it seems it would be difficult to sway a Judge or jury with arguments concerning injuries and/or damage to persons while they were enslaved. Suing for reparations will not result in a guilty-of-a-crime verdict because slavery was legal at that time. Without a guilty verdict, any monies given would be minimized and might have to be given voluntarily. Damages incurred after the enslaved blacks were freed will not likely qualify as slave-reparations. Restitution, on the other hand, would better align with any need to seek payments for economic losses after slavery.

Restitution, according to Black’s Law Dictionary, is defined as an equitable remedy under which a person is restored to his/her original position prior to loss or injury. Unlike claims for reparations, case law relative to restitution is in abundance. For example, State v Barnett concerned giving an equivalent for or restoring something to the rightful owner. Antoine v McCaffery concerned compensation for the wrongful taking of property. According to the law, a person who has been unjustly enriched at the expense of another is required to make restitution to the other.

The descendants of the formerly enslaved should change their strategy from seeking reparations via some congressional act to seeking restitution in a court of law. Considering the centuries of failed attempts at obtaining reparations as well as the numerous successful restitution remedies ordered by the courts should lead to strategic changes for seeking remedies. Restitution, not reparations, was the chosen remedy sought by the former enslavers after their slaves were freed by the Government. Those enslavers sought payment for the loss of property (i.e., their former slaves) and were granted a hefty sum by the court. Restitution seems to be the wisest choice for the descendants of the formally enslaved to obtain viable legal remedies for past injuries/damages.

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