The Black Lives Matter movement has exposed the state violence and social devaluation that Black populations continue to suffer. Police shootings and incarceration inequalities in the US and UK are just two examples of the legacy of slavery today.
This book offers a criminological exploration of the case for slavery and anti-Black racism reparations in the context of the enduring harms and differential treatment of Black citizens. Through critical analysis of legal arguments and reviewing recent court actions, it refutes the policy perspectives that argue against reparations.
Highlighting the human rights abuses inherent to and arising from slavery and ongoing racism, this book calls for governments to take responsibility for the impact of ongoing racialized injustice.
This illuminating study explores crimes against, and involving, wildlife and the resultant social harms.
The authors go well beyond basic conceptions of animal-related crime, such as illicit trade, for a deeper exploration of wildlife criminology, using a novel approach that combines philosophical, legal and criminological perspectives. They shed light on both legal and illegal harms, including blood sports, wildlife as food and abuse in zoos, and consider the potential connections with inter-human crimes.
This is a unique treatment of wildlife as victims of crime and a consideration of their rights as sentient beings that sets new horizons for the concept of wildlife criminology.
As the early chapters of this book indicate, miscarriages of justice have been an enduring feature of all legal systems since their inception and are inextricably linked to policing discourse. We cannot know how many, or how often, innocent individuals are wrongly convicted; however, the notion of the innocent person spending years in prison for a crime that they did not commit remains a powerful narrative that dominates miscarriage of justice discourse (Booker, 2016; Groombridge, 2016; Linehan, 2016). Understandably, campaigners, media commentators and victims of miscarriages focus on the innocent victim wrongly convicted of a crime and serving an unjust punishment. Such manifest unfairness can be symbolic of failings in a system that pits the might of the state against a notionally powerless citizen. The conviction of the innocent creates a powerful narrative about the relentless nature of the criminal justice system (CJS) as being outcomes-driven, with conviction and punishment as the goal. The conviction of the innocent also exemplifies fears about alleged institutional corruption and abuse of state policing powers that potentially result in significant interference with civil liberties. Historically, concerns have been raised about alleged police malpractice, and policing practices are a significant cause of the conviction of the innocent. Yet, as this book illustrates, more commonplace problems of miscarriages are endemic to justice systems in the context of wrongful convictions. In examining this topic, our analysis is concerned with the safety of convictions and the extent to which procedural error raises concerns about the administration of justice. Undoubtedly, some unsafe convictions will involve innocent defendants.
As the first few chapters of this book identify, providing a definition of miscarriages of justice is problematic. So, too, is identifying the causes of miscarriages of justice. In adopting the definition of wrongful conviction outlined in earlier chapters for this book’s discussion of miscarriages of justice, this chapter identifies that a single miscarriage of justice can have multiple causes. Miscarriages of justice issues can start from an individual’s first contact with the police, continuing to the end of their dealings with the criminal justice system (CJS), when potentially problematic judgments are not readily rectified by appellate or informal mechanisms (see Chapters Six and Seven). The term ‘wrongful conviction’ covers a multitude of issues, from failure in investigation through to errors at trial. Such errors can result in a conviction that may well be technically correct in the sense of having convicted the guilty party, but that may nevertheless have been achieved in a manner that cannot be considered safe, according to legal definitions (see Chapter Six). Accordingly, the discussion of wrongful conviction needs to extend beyond merely considering conviction of the innocent. It must also include examination of those cases where doubts exist about whether due process was followed, about evidential validity or about the manner in which evidence was collected. It must also consider doubts about the conduct of investigatory officers, experts and witnesses at trial.
Disentangling the causes of miscarriages of justice is difficult; however, this chapter examines a range of issues that have been thought to cause a miscarriage.
This chapter examines formal remedies existing for miscarriages of justice. Until the 1990s, there was limited scope for appeal against criminal conviction in England and Wales. Attempts to introduce an appellate court were continually rejected until the Court of Appeal was formally established in 1857, with a primarily civil jurisdiction, and the Court of Criminal Appeal was created in 1907 (see Chapter Two). The Court of Appeal’s jurisdiction over criminal appeals was formalised by the Criminal Appeal Act 1968, when it replaced the Court of Criminal Appeal (Slapper and Kelly, 2012: 249). The 1968 Act set rules for appeal against conviction in cases where a conviction was considered unsafe, much the same as the current position, although the scope for investigation post-appeal was limited prior to 1997. As this chapter demonstrates, considerable criticism has been made of the Court of Appeal’s role and performance. During the early 1990s, the perception that this had resulted in a fall in public confidence in the CJS, in part, led to calls for the creation of an independent non-judicial body that, once the standard appeal channels had been exhausted, might still investigate cases and refer them back to appeal. This institution, the Criminal Cases Review Commission (CCRC), began its work in 1997 following the Royal Commission on Criminal Procedure’s (RCCP’s) recommendations, which resulted in the Criminal Appeal Act 1995. The RCCP recommended that there should be a new independent authority with a remit to consider allegations of miscarriage of justice. Where there are reasons to consider that a miscarriage has occurred, the new authority, which should be independent of the police and the court structure, should be able to refer cases to the Court of Appeal.
This chapter examines the issue of harm and suffering, one of the issues identified in reparations litigation and policy debates, in more detail. As Chapter 3 identified through its litigation analysis, some reparations claims have been dismissed in part due to the conception that there is nobody alive today who has directly suffered from slavery and thus in one sense there is no surviving victim who should be compensated. This argument distinguishes the ‘legacy’ of transatlantic slavery as an institution that was directed against Black people who are arguably still feeling its effects, from more recent harms like the persecution of the Jews in the Holocaust of World War II (Rosensaft and Rosensaft, 2002). Holocaust reparations have been paid in part because not only is the Holocaust a more recent memory, but also because several survivors and their children are still alive (Brandler, 2000). As a result, a direct victim who has suffered a tangible injury exists and the harm caused to them can arguably be addressed through reparative approaches that, for example, meet the costs of medical bills and the social care needs and pensions of ageing survivors (discussed further in Chapter 5). The Holocaust was also litigated in an international justice forum in accordance with contemporary international law perspectives (Bassiouni, 1979; Buergenthal, 2003; Bazyler, 2017) whereas transatlantic slavery has not been subject to the same process (discussed further in both Chapter 5 and Chapter 8). Thus, a more coherent legal basis for reparations arguably exists within Holocaust reparations where an identified perpetrator exists whose guilt has been established through normative justice processes.
The previous chapter identified that reparations have been considered by the US government in cases where the state acknowledged an obligation to pay reparations for harms attributable to government action; namely the harms caused to native Americans and Japanese Americans. In this case, state acceptance of the case for reparations is arguably linked to direct action that harmed citizens and amounted to an infringement of human rights.
This establishes an important consideration in reparations discourse; the notion that where states can tangibly be determined to be culpable for harm to an identifiable group or individuals within a group then reparations may be due at a state level. Such reparations amount to a form of compensation for the harm caused and ‘damages’ owed to the affected group or collection of individuals. This chapter expands on Chapter 4’s discussion of this principle via an in-depth case study of another reparations case; restitution for the Holocaust and the losses suffered by Jewish people during World War II. The nature of these reparations is well documented, and a robust legal and administrative process was created to allow for the making of claims, the administration of payments and review of the operation of the scheme. Records exist concerning the nature of reparations owed and of the affected individuals. Reparations were also given to native Americans where the state has accepted the necessity of providing federal aid and redress as a consequence of state exploitation, and to Japanese Americans for internment following the Pearl Harbor attack.
This chapter examines questions of who benefits or benefitted from slavery as well as further examining the nature of disadvantage and inequality. It examines the arguments raised in reparations litigation concerning the benefit gained by companies and other institutions (discussed in Chapter 3) but explores this within the context of specific arguments about enrichment, specifically the legal concept of unjust enrichment. Central to these arguments are questions concerning whether the present-day status of some institutions and even wider society is built on their participation in historic injustices and arguably whether they could be said to have benefitted from participation in discriminatory practices.
As outlined in this chapter and elsewhere in this book it has been argued that reparations should not be paid by present-day institutions for harm caused by their predecessors due to an activity that was ostensibly legal albeit distinctly harmful to a specific community or section of a society. This chapter challenges this notion in part by examining the unjust enrichment argument from a contemporary criminological and zemiological perspective, contending that ideas of the need to remedy contemporary injustice and social harm, arising from the legacy of slavery can be applied to the concept of unjust enrichment. Thus, it argues that the concept of unjust enrichment should be applied not just in the strict context of whether institutions can be said to have acted legally or illegally at the time of slavery, but adopting the Roman Law principle that no one should benefit at another’s expense. In part, this chapter makes an argument for institutions to recognize that their existing wealth and social prestige amount to unjust enrichment, irrespective of any legal arguments that the doctrine should not apply.
Chapter 1 sets out the starting point for this book’s discussion of anti-Black reparations discourse as having its basis in the harms caused by slavery, while acknowledging the contemporary reality of continued racism that is directed at and impacts negatively on Black citizens. This chapter situates the book’s discussion of slavery reparations within criminological discourse, viewing slavery as both a crime of the powerful and as state crime (and state-corporate crime) given the (historical) legality of slavery in both the US and UK and its value to Western prosperity (Wilkins, 2020). As Chapter 1 identifies, slavery was underpinned by the state who in both the US and UK received revenues and taxes from slave labour and were thus complicit in the subjugation of African citizens who became property within the confines of the slave system. Whereas today most states have anti-trafficking laws (and international conventions also exist in this area), at the height of the transatlantic slave trade, the movement and trafficking of persons was deemed legal, profitable and supported the fledgling American economy. Thus, it was supported by state institutions, finance and other corporations and provided an economic contribution to states and private wealth (Neuborne, 2003). Thus, states were arguably complicit in slavery’s human rights abuses for economic reasons as well as for cultural reasons predicated on beliefs that Black non-Europeans were lesser beings for whom slavery and a status as property was considered acceptable. This ideology rejected any notion of Black people as fellow citizens deserving of respect and equal treatment (Epps, 2006).1
This chapter further examines the case for reparations through a restorative justice and human rights lens. In doing so, it also applies a critical criminological perspective to examining the nature and type of reparations and the purpose of reparations. This chapter draws on contemporary human rights and international criminal law to critically evaluate conceptions on repairing harm.
The chapter’s discussion identifies and conceptualizes reparations as a human rights issue and draws on selected case law and judicial principles from the ICC, the ECtHR and the International Court of Justice (ICJ) to discuss issues surrounding remedying international crimes such as war crimes, genocide, unlawful discrimination and other human rights abuses including modern slavery, with a focus on how these might be remedied within contemporary justice systems.
While acknowledging that contemporary law cannot be retrospectively applied, this chapter identifies that reparations can take many forms from apology and state recognition of the harms caused by CAH like slavery, through to financial compensation, affirmative action or social rebuilding that contributes to social justice. The chapter also contains analysis using contemporary examples of reparations mechanisms to discuss how international principles could arguably be applied to the issue of ongoing reparations for slavery and its legacy of anti-Black racism.
Reparations arguably have a strong basis in international law since World War II. Governments may agree to reparations through political settlements in order ‘to draw a line under the past and provide new opportunities for victims’ (Moffett and Schwarz, 2018). Reparations, as a legal mechanism for resolving a dispute have the potential to provide for a practical remedy to an identified social or political need while also resolving individual or group rights to a remedy for harm directly caused to them.