Apology as Accountability in Transitional Justice

Posted in: Politics

In thinking about the calls for national unity and what moving forward after the Capitol Hill riot should look like, my co-author and I suggested the transitional justice frame. While we strongly support calls for accountability, we also think non-punitive tools must be included in the accountability toolbox. In this post, I discuss the possibility of and criteria for amend making, an important transitional justice tool. In so doing, I focus on Senator Lankford’s recent apology in the wake of his call for an electoral commission and the Capitol Hill riot.

By way of background, Senator James Lankford from Oklahoma was one of many Congresspeople to suggest that the presidential election was stolen and ought not be certified. In a December Senate hearing, he spoke about public opinion regarding voter fraud, the potential for ballot harvesting to allow fraud, and repeated the already judicially debunked claim of 130,000 voter irregularities in Nevada. In January, he issued a joint statement with other senators concluding “Voter fraud has posed a persistent challenge in our elections, although its breadth and scope are disputed. By any measure, the allegations of fraud and irregularities in the 2020 election exceed any in our lifetimes.” He also penned an op-ed which started from the premise that a meaningful number of dead and double voters raised a problem that needed to be fixed. His op-ed and communications generally avoided the heated rhetoric of some of his other colleagues and made clear the electoral commission he proposed would not select the President. That said, his call for the commission still left open the question of whether states might change their decisions about whom to certify for President. He also said in the absence of the commission, he would oppose electors because he “wouldn’t be able to affirm [the electoral votes] were ‘regularly made,’ which is the legal standard.” Lankford was speaking against the electoral certification on Senate floor when Senate Chambers were cleared due to the riot. Even as the riot was ending, his office was sending emails about voter fraud.

In the wake of the riot, he was one of several Republican senators who abandoned his or her earlier challenge, decried the violent rioters, and in a joint statement that night, called on “the entire Congress to come together and vote to certify the election results.” Even so, Lankford faced significant condemnation across the political spectrum for his earlier actions. In particular, Black leaders implored him to “Stir up the moral courage to tell the truth that leads to a nation and a world that may flourish.” Black leaders from Oklahoma also called for him to resign from the 1921 Tulsa Race Massacre Centennial Commission, an action Lankford considered.

Lankford then issued an apology to the Black voters of Oklahoma. The letter, addressed to his friends in North Tulsa, discusses the Tulsa Race Massacre and his call for an Electoral Commission. He stated,

It was never my intention to disenfranchise any voter or state. . . . But my action of asking for more election information caused a firestorm of suspicion among many of my friends, particularly in Black communities around the state. I was completely blindsided, but I also found a blind spot. What I did not realize was all of the national conversation about states like Georgia, Pennsylvania, and Michigan, was seen as casting doubt on the validity of votes coming out of predominantly Black communities like Atlanta, Philadelphia, and Detroit. After decades of fighting for voting rights, many Black friends in Oklahoma saw this as a direct attack on their right to vote, for their vote to matter, and even a belief that their votes made an election in our country illegitimate. I can assure you, my intent to give a voice to Oklahomans who had questions was never also an intent to diminish the voice of any Black American. . . . In this instance, I should have recognized how what I said and what I did could be interpreted by many of you. I deeply regret my blindness to that perception, and for that I am sorry.

He then emphasized the “goal of reconciliation” and explained that supporting “the people of North Tulsa as you tell your story” was part of that work. He recounted his work establishing the 1921 Race Massacre Centennial Commission, his push for a school curriculum that would teach students what happened, and concluded by “asking my friends in North Tulsa for grace and an opportunity for us to show the state what reconciliation looks like in moments of disagreement.”

How might transitional justice help us assess this apology? Well, in addition to determining whether the apology fits the usual restorative justice goals of repairing individual and community relationships, we might also ask how well it restores the commitment to the democratic rule of law and the equality of citizens in resolving conflicts.

First, we might consider how well Lankford does in acknowledging his harm. Part of making amends requires identifying who has been harmed and in what way. I think Lankford does a relatively good job in the apology noting that questions about electoral integrity fall most heavily on African American communities and compound a long history of voter disenfranchisement and suppression. Apology literature explains the need to direct apologies to the specific victims to help repair the damage to self-respect that the original harm inflicted and to make clear the victims were not in the wrong. Similarly, transitional justice tells us repair can be a way to distance the state from the political persecution of the past and affirm that citizens’ rights will be protected on an equal basis. Whose rights in this instance? The rights of African Americans affected by a long history aimed at preventing them from equally participating in our elections and our democracy.

But Lankford’s apology falls short on the responsibility-taking aspect for harm. While he does identify a “blind spot” not to understand how Black voters might perceive his challenges to the 2020 election, he also implicitly suggests this is simply a mutual misunderstanding. He didn’t know how his words would be perceived, and the listeners didn’t understand his true intent. His apology certainly takes more responsibility than the multiple rioters requesting pardons suggesting no real responsibility and that all responsibility for their action lies with President Trump. But that’s an awfully low bar. What he fails to acknowledge is the reasonableness of how Black voters would and should respond to massive, unfounded allegations of widespread voter fraud in this specific political moment. Note too the limited scope of the apology’s responsibility taking—it is limited to his responsibility in how Black voters feel about his call for the electoral commission and does not include recognition of any contribution to political instability. Under transitional justice, it is particularly important to understand political actors’ roles in and responsibility for undermining respect for the rule of law. One can think that Lankford falls short of the legal rules governing incitement and still acknowledge the significant role of consistently undermining the integrity of the election in the current climate played in motivating political violence.

Both restorative and transitional justice also call for harm repair as part of amend making. The apology and restorative justice literature focus on repairing the harm to and relationships with individuals. They suggest that while fully restoring harmed individuals may often be impossible, efforts to engage in service work or respectful offers of compensation or reparations are needed to demonstrate esteem for the individuals or to repay a moral debt. Transitional justice goes further to suggest that harm repair does not play a simply compensatory or restorative role but also a “functional and symbolic role particular to the state’s political transformation.” In other words, in times of transitional justice, efforts to repair harm should be designed both to address the needs of individuals and also to advance the purposes of peace and reconciliation. These efforts must be offered in ways that don’t compound the harm or harm others. Work on the Tulsa race massacre commission could count as part of such an effort, but only if members of the community still want him there. Better still would be a commitment to a congressional investigation of how the big lie of election theft came to be and how to debunk it along with work on voter disenfranchisement and related issues on race, something for which he has shown some past appetite. Responding affirmatively to the calls for reparations related to the Tulsa race massacre and the more recent gentrification of Black Wall Street would be another promising avenue.

Lastly, in making amends and furthering the goal of reconciliation, both restorative and transitional justice emphasize the central importance of non-repetition, in ceasing to commit the wrongdoing of the past. An apology is simply a moment in time, but amend making continues long past the act of offering an apology. Promising not to commit the same harm matters; actually not committing the same harm matters more. While it is still early, the evidence on Lankford’s willingness to repeat the wrongs of the past is already mixed. On January 13, he spoke to ProPublica at length. On the positive side, he emphasized his prior rejection of some spurious election charges such as Dominion double-counting ballots in Georgia and Michigan and sharpies ruining ballots in Arizona. When prompted, Lankford agreed that Joe Biden and Kamala Harris are the legitimate winners of a free and fair American election. He explained that if he were able, he would have rephrased his demands for an electoral commission to make clear such a commission was only looking to the future and would not change the inauguration of President-elect Joe Biden. But in continuing to extol the virtues of addressing potential vulnerabilities in the election system and simply delaying such actions because “right now is not the time to be able to do it. Right now is the time for unity as a nation,” he missed an opportunity to reiterate that his concerns were wholly decoupled from Black, big city voter turnout; that while the potential for fraud might exist, no compelling evidence has demonstrably shown widespread voter fraud; and that disenfranchisement and suppression pose a significant threat to democracy and equal respect for citizens.

I applaud Senator Lankford’s desire for a demonstration of what national reconciliation looks like in moments of disagreement and his willingness to apologize. But while backing off calls for an immediate electoral commission, recognizing the racial implications of voter integrity concerns, and saying the word “sorry” might be a start, these actions alone do not undertake much of the hard work demanded by restorative and transitional justice. Lankford and others who brought us to this moment must also repair the harm inflicted on voters of color and on our democratic processes. Transitional justice demands no less than a broader understanding of the harm inflicted by spurious claims of widespread election fraud; ongoing commitment to respect and recognize people of color as equals, deserving of equal opportunities to participate in the political community, and meaningful efforts to repair the harms of the past while avoiding their repetition.

Comments are closed.