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The Case for Racism Response Funds – A Collective Response to Racist Acts

Through this mechanism, communities can accept accountability for the racism they allow to flourish by failing to disrupt it. This research and analysis is part of our Discourse series. Discourse is a collaboration between The Appeal, The Justice Collaborative Institute, and Data For Progress. Its mission is to provide expert commentary and rigorous, pragmatic research […]

Through this mechanism, communities can accept accountability for the racism they allow to flourish by failing to disrupt it.

This research and analysis is part of our Discourse series. Discourse is a collaboration between The Appeal, The Justice Collaborative Institute, and Data For Progress. Its mission is to provide expert commentary and rigorous, pragmatic research especially for public officials, reporters, advocates, and scholars. The Appeal and The Justice Collaborative Institute are editorially independent projects of The Justice Collaborative.

The catalogue of recorded moments when white people call the police to report Black and brown people for no good reason is so large, and growing so fast, that the response has become routine: A video is posted on social media. There is an explosion of comments and shares. A crowdsourced search for personal details about the caller begins alongside a parallel crowdsourced examination of the call’s target for blameworthy details. Then, depending on the results of those investigations, a ritual of “cancellation” ensues, perhaps resulting in the police-caller losing her reputation, her livelihood, and in a recent case, briefly, her dog. The police-caller’s victim may gain recognition for a short time but otherwise, nothing. This is internet justice.

For those who commit racist acts, internet justice may produce justified negative consequences, but it does little to help those who have been harmed. Its focus is too narrow, its reach too short. It emphasizes individual “blame and shame” and detracts from shared accountability for these routine racist acts. It’s a “bad apples” reaction to racist harm that ignores the “rotten trees.”

Our criminal and civil legal systems fall short for similar reasons. In New York, for example, the Manhattan district attorney charged Central Park police-caller Amy Cooper with falsely reporting an incident in the third degree, a misdemeanor punishable by up to a year in jail. This may add to the punishment for Cooper, but does nothing for the man she threatened with police. It’s also hard to square penal responses with a systemic critique of the criminal legal system. It is counterproductive to expand criminal codes when they are already tumid. Moreover, leaning into racist, classist, and otherwise marginalizing institutions of punishment may undermine the deeper change needed to eradicate them.

Civil suits at least offer the possibility of some redress for victims of racism. New York and Oregon have passed legislation that authorize private lawsuits for racially motivated police calls. San Francisco is considering the jauntily titled “CAREN” Act, which would allow the same. But lawsuits can be tedious and expensive. More fundamentally, civil suits, like criminal prosecutions and internet justice, are focused on a single perpetrator and fail to create ongoing, community-level accountability.

To these points, Chris Cooper, the man whom Amy Cooper (no relation) threatened in Central Park, has said that he won’t participate in the prosecution against her. “I think it’s a mistake to focus on this one individual,” he said. But what else is there? What might accountability that both provides redress to victims and accounts for the collective reality of racism actually look like?

I propose Racism Response Funds (RRFs), entities that would provide compensation and services—for example, mental health services and narrative-sharing opportunities—to victims of racist acts, including unjustified police calls. Through this mechanism, communities can accept accountability for the racism they allow to flourish by failing to disrupt it.

RRFs could take many forms and could be administered or funded in many ways—through federal, state, or  municipal governments, or even through community organizations. The right model will vary, but the intervention will be most productive if directly-affected community members have primary control of its philosophy and design.

Routine Racism and the Need for Alternative Responses

Racism is ground into our structures, institutions, and collective ideas. Racist ideas are neither isolated within individuals nor fixed unchangeably in everyone. That’s why claims such as “everyone is racist” and “I am not a racist” are inapt: In America, everyone has the capacity to engage in racist acts that stem from racist ideas.  Because of this basic feature of racism, routine racist incidents demand both personal and shared accountability.

But none of our existing legal mechanisms for preventing and responding to racism work this way. As I already discussed, lawsuits and criminal prosecutions are concerned only with individual wrongdoers and ignore shared culpability. And other legal protections, like  constitutional and statutory antidiscrimination laws, impose stringent evidentiary burdens and rely on narrow conceptions of racial discrimination that do not cover most systemic, covert, or “microaggressive” forms of racism.

Current systems also have practical pitfalls. Workplace grievance processes for racial and sexual harassment come with fears of retaliation, and university disciplinary proceedings can raise concerns about the chilling of campus speech. Reparative responses, such as truth and reconciliation commissions, allow for more nuance and offer more flexibility. But they usually address particular atrocities or events, not routine racist acts.

The Possibilities of Racism Response Funds

RRFs can bridge the chasm between the daily realities of racism and currently available responses to it. They offer a path to collective response, allow flexibility to assess liability and compensation, and provide a reparative — not adversarial — process to make victims whole. RRFs can also be a concrete way of expressing the community’s recognition of its complicity in perpetuating racism, segregation, and their accompanying ills. In some places, community-based RRFs might look more like mutual aid, and in predominantly white communities, the structure might reflect commitment to redistribution or reparation.

The notion of creating a fund to redress harm is not without precedent, especially in other contexts where litigation is inefficient or inadequate. For example, crime victims’ compensation funds, which exist in every state and three U.S. territories, are a helpful model for providing broad remedial support — they often cover an array of expenses, including lost wages, mental health services, funeral expenses, and sometimes moving expenses and housekeeping.

People who are concerned about the prevalence of routine racism in their towns and neighborhoods can come together and create a local, community-based RRF, analogous to a community bail fund. Community bail funds pool monetary resources to get people out of jail by making bail, but they also have broader goals that include radically transforming or even abolishing the criminal legal system.

These models aren’t perfect blueprints for RRFs; crime victims’ compensation funds, in particular, can be more regressive than restorative. Many are funded through fines and court fees, which have led to devastating penal debt that Black and low-income people disproportionately bear. But these models provide starting points to adapt and modify and show how RRFs need not break entirely new ground, either in concept or design.

Objections to RRFs might raise broader concerns. Even though RRFs need not preclude criminal punishment, their spirit of repair might trouble those who believe prosecution and sentencing are helpful responses to racist police-calling. But in reality, prosecution will probably continue to be rare and is unlikely to be a meaningful deterrent. It may be difficult to quantify the harms of racist acts or to figure out who should receive compensation, but the existence of funds that respond to other forms of victimization suggest that these implementation details can be worked out. The flexibility of RRFs is a feature, not a bug.

To be clear, RRFs are not, on their own, a structural intervention into systemic racism. They should not supplant deeper transformations. However, RRFs offer a quickly implementable response to individual racial harms, and they can be a tool for communities to create space for consciousness-raising and racial justice advocacy. RRFs can shift strategy: Instead of targeting  punishment solely at individual racists, they recognize racism as a collective catastrophe and respond directly to the suffering it inflicts. These shifts might ultimately lay better groundwork for approaching more ambitious horizons of accountability for the nation’s racial sins.

Monica C. Bell is a Fellow at the The Justice Collaborative Institute and an Associate Professor of Law at Yale Law School and Associate Professor of Sociology at Yale University. Her areas of study include law and sociology, race and the law, policing and the criminal legal system, welfare and public benefits law, and housing law and residential segregation.