Put Racial Justice at Center of the Biden-Harris Transition Plan
The new administration doesn’t have to reinvent the wheel—it can learn from South Africa’s experience with transitional justice.
This article is part of Foreign Policy’s ongoing coverage of U.S. President Joe Biden’s first 100 days in office, detailing key administration policies as they get drafted—and the people who will put them into practice.
One week into their term, U.S. President Joe Biden and Vice President Kamala Harris have already made good on several campaign promises. Since their inauguration, they have reentered the Paris climate accord, renewed U.S. support for the World Health Organization, and ended the Trump administration’s travel bans targeting nationals of select Muslim-majority and African nations. Racial justice is next on the list of issues that they have identified as most pressing and requiring action in their first 100 days.
On Tuesday Biden rolled out his administration’s first steps to advance racial equity and promote national unity and reconciliation. He issued four executive orders spanning issues that affect multiple racial and ethnic minority groups in the United States, namely Black, Latino, Indigenous, Asian, and Pacific Islander Americans.
The first executive order directs the Department of Housing and Urban Development to remedy racism in federal housing policy and practice, while the second instructs the Department of Justice to end contracts with private prisons. The third renews the federal government’s “commitment to tribal sovereignty and consultation” and the fourth orders the Department of Justice to combat anti-Asian racism and xenophobia. Beyond the four orders, Biden and Harris have called for a whole-of-government approach to redressing structural racism and systemic inequality.
Biden opened his remarks on Tuesday by acknowledging racial disparities in health and the economy, noting disproportionate rates of coronavirus infections and deaths, food insecurity, and job losses among Americans of color. He invoked the memory of George Floyd, who was killed by Minneapolis police in May 2020 and whose death, Biden affirmed, marked a turning point for the United States. The president admonished, “Now is the time to act” and “[this is] what faith and morality call us to do.”
The administration is off to a strong start, but it has a long way to go. Fortunately, Biden and Harris’s team doesn’t have to reinvent the wheel. Rather, they can look to historical cases of transitional justice in racially divided societies.
To give two examples of how transitional justice could work under a Biden-Harris administration—and the impact it could have on racial justice—consider policy reforms in South Africa during the transition from apartheid and white-minority rule to democracy and Black-majority rule in the mid-1990s.
After nearly 50 years of violence and discrimination against Black and other non-white South Africans, the first post-apartheid government, led by President Nelson Mandela and the African National Congress (ANC), undertook a range of reforms relating to housing and criminal justice. Parts of the Biden plan resemble these early initiatives.
Here’s what worked, what didn’t, and implications for the United States today.
First, Mandela and the ANC introduced several policies to redress discrimination in housing—from granting developer subsidies to ending redlining, the practice of denying housing loans to entire communities. At the time, the country faced a housing shortage of roughly 1.5 million units and a public housing system in shambles. To fill in the gaps, the new government relied heavily on private-sector investment and the work of non-governmental organizations.
But progress on these policies stalled. Government subsidies did not produce housing quickly enough and disagreement among local, provincial, and national governments further slowed momentum. What housing was developed was far from centers of economic opportunity. Above all, residents denounced the lack of community consultation in the process.
Biden’s executive order is the first step of many in responding to the U.S. housing crisis, whose effects have been especially devastating for Americans of color. The Biden-Harris campaign’s housing plan echoes many of the ANC’s early policies, including $100 billion in grants and tax incentives to build affordable housing. But subsidies without a strategy aren’t enough.
It wasn’t until the 1998 People’s Housing Process—four years after Mandela came into office—that South Africans in need were given a voice in the development of their homes. The Biden administration should not make the same mistake—it must put community needs at the center of their efforts in order to produce better quality housing and avoid years of wasted time.
Second, the new South African government ushered in a range of prison reforms. It moved quickly to abolish the death penalty and reduce inhumane treatment of inmates, which again disproportionately affected Black South Africans. The government also began educating prison staff on human rights and attempted to transform the correctional system from one based on punishment to one based on rehabilitation. For petty offenders especially, the government sought to prioritize skills training, education, and diversion programs.
Regrettably, many of the ANC’s efforts to reform prisons were ultimately hampered by political pressure to take a harsher stance amidst a rising crime rate. Facing an outcry from the white population, the government established maximum-security private prisons and encouraged judges to grant longer sentences. This tougher approach led to increasingly overcrowded prisons that remain racially imbalanced—as of 2016, nearly 98 percent of prisoners are Black or coloured, much higher than their 85 percent share of the population.
Biden’s move to eliminate private prisons and his campaign’s broader criminal justice plan is just the beginning when it comes to dismantling a fundamentally racist and overly punitive incarceration state. Some of his proposed initiatives parallel measures supported by the ANC in early post-apartheid South Africa, including a focus on rehabilitation and an interest in alternatives to detention.
To succeed, however, the new administration must resist the dog-whistle politics behind many Republicans’ tough-on-crime stances. And, in contrast to South Africa, Biden should tackle structural inequities that perpetuate racial disparities in the prison system today.
So far, it appears that the Biden-Harris team is committed to reforms to deliver racial equity. Still to be revealed is whether they are also committed to repair historical inequity. In South Africa and many other countries that have undergone political transitions—some violent, like the one the United States recently underwent—reforms have been accompanied by truth commissions, judicial accountability for wrongdoers, and economic and symbolic reparations. These are part of what scholars and practitioners call the transitional justice tool-kit, or portfolio.
Among these, reparations are very important. Biden’s plan is nicely poised to prevent harm in the future—and that’s important. But so, too, is remedying harm that took place in the past. How will the administration repair what’s been broken and provide restitution—for victims of housing discrimination, the incarceration state, encroachments on sovereign indigenous land, xenophobia, and more?
Scholars have developed detailed suggestions. Whether Biden and Harris, in partnership with the U.S. Congress, adopt them remains to be seen. But a crucial lesson from South Africa is that the lack of a serious and comprehensive reparations plan can decrease affected communities’ confidence in reforms and diminish their trust in the government more generally. That undermines national unity and reconciliation.
Alexandra Byrne is a research fellow in the International Justice Lab at William & Mary.
Bilen Zerie is a research fellow in the International Justice Lab at William & Mary.
Kelebogile Zvobgo is provost’s fellow in the social sciences at the University of Southern California and the founder and director of the International Justice Lab at William & Mary. Twitter: @kelly_zvobgo