Banking on genocide: The racial disparities and patriotic politics of a massive international corruption case

Abstract

We focus on the 2015 conviction in New York of BNP Paribas Bank for its role in the Darfur genocide. Proceeds from this case were used by congress to create a terrorism fund to compensate American victims of the 9/11 Twin Towers attack, while Black victims of the Darfur genocide received no compensation. This paper uses a sequential theory developed by David Garland to understand the racialized persistence of the American death penalty and its implications for understanding the creation of the Twin Towers Fund. A civil suit is presently drawing on the BNP conviction to again seek compensation for Darfur genocide victims. Garland’s approach helps us to better understand the evolution of the Darfur case.

Introduction

What is often called “the first genocide of the 21st century” peaked more than a decade ago in the Darfur region of Sudan. Yet few Americans are aware that the results of this conflict continue to occupy a little understood place not only in Sudan, but also in the ongoing American racial politics of patriotism and punishment. This paper traces the legal and monetary linkage between a landmark French BNP Paribas Bank case involving the Darfur genocide and an historic nine-billion-dollar court settlement and conviction of Paribas Bank which led to the creation of a “United States Victims of State Sponsors of Terrorism Fund.”

The latter fund was created by an end of term omnibus congressional bill that displaced an expected use of the Paribas settlement to compensate victims of the Darfur conflict. Instead, the bill unexpectedly compensated surviving victims of the 9/11 Twin Towers attack, and in so doing blocked compensation to the Darfur victims who the judge in the New York Southern District had identified as deserving monetary benefits.

The omnibus bill was signed into law during the final weeks of Barack Obama’s second term as president. The bill in turn became a long-term source of conflict between one group of terrorist victims – 9/11 victims – and another group – Iranian hostage victims (Gearan, 2021). The Darfur genocide victims, who as noted above were central to the Paribas case, have never received compensation.

Notwithstanding the complexity of the above events and the challenges of bringing them to the attention of the American public, this paper ultimately concludes that the victims of Darfur’s genocide may nonetheless still in the future be successful in claiming monetary compensation from Paribas Bank for their genocidal victimization. Although this is a complicated story, it is nonetheless important for the large number of people and the several countries that it involves.

A Note About Theory and Method

This paper takes seriously the mandate of this journal which “is aimed at uncovering the interrelations of theoretical and empirical investigation of the crimes of powerfully organized people and institutions while advancing the knowledge of white collar and corporate crime as well as the practices of social intervention and policy change.” More specifically, our focus is on the white collar and corporate crimes of the French based BNP Paribas Bank, which were the foundation of Sudan’s genocidal attacks on Darfur, and which were ultimately prosecuted in the Southern District of New York.

Garland has made a particularly important contribution for our purposes in his book Peculiar Institution (2010). Garland’s book explains America’s legal retention of its death penalty and its broader implications. While America’s application of the death penalty involves its imposition on individuals, this paper focuses on the related relevance of Garland’s theory for the institutions and nation states involved in the Darfur genocide.

A key part of Garland’s book is his theoretical concept of interactive sequences involving legal actions and reactions in successively interconnected court cases. These interactive sequences can be fundamental to the ways in which interpretations of law are formed, and in turn for how they may also be open to change. Our point is not that these legal sequences necessarily are correct or incorrect, but rather that they can establish pathways that are highly consequential, and in some cases also beneficial, for one or another of the parties involved.

The kinds of sequences considered by Garland have historically been important not only for American criminal law but also for American criminology. We illustrate this point by reviewing the important work of David Baldus (1983) in the Georgia criminal case of McCleskey v Kemp. Even though Baldus found persuasive evidence of discrimination in Georgia’s use of the death penalty against many Black Americans, the verdict in McCleskey v Kemp ultimately discounted this evidence and was instead resolved in favor of the retention of the American death penalty. We argue that there are important parallels between how Garland explains this and how Darfur’s genocide victims were displaced from the settlement of the Paribas prosecution.

Some may think that our focus is too broad in including the work of Garland and other social scientists such as Baldus in developing the explanatory account we present. However, our premise is that including this work is important to seeing how the Paribas case evolved, and furthermore, how it is likely to continue to develop in ways that can be important not only to American criminology, but also to international criminal law, and especially to the now more than 15,000 victims of the Darfur genocide who over time have taken refuge and become citizens of the United States.

The growing number of these new American citizens raises the following question: if the United States Congress was able to appropriate funds from the Paribus Bank settlement for the creation of a “United States Victims of State Sponsors of Terrorism Fund,” why has it not also been possible to create a similar fund for victims of the Darfur genocide, beginning with those who have become naturalized American citizens? We consider below how Garland’s concept of interactive sequences involving legal actions and reactions in successively linked cases can help us to understand the logic of the legal settlement in the Southern District of New York case which we believe may yet be extended to include victims of the Darfur genocide.

Crime and Punishment in Context

David Garland’s book, Peculiar Institution (2010), as well as Philip Smith’s related book, Punishment and Culture (2008), can help us understand the Paribas case. An American backdrop to this case was unexpectedly set when, during a 1988 nationally televised presidential debate, candidate Michael Dukakis stumbled over the topic of the death penalty by responding awkwardly to a hypothetical question about the rape of his wife. This debate became a memorable part of a national resurgence in American support for its death penalty.

Garland (2001: 244) has called the hypothetical question asked of Dukakis an American litmus test of a politician’s commitment to law and order. Later we will suggest that although Barack Obama was still a teenager during the debate, he was nonetheless old enough to recall its importance years later when the BNP Paribus case required this President - at the end of his second term - to make a decision at the center of our analysis. As we will see, this decision was consistent with Barak Obama’s ambivalence about the United States retaining its death penalty.

While the Dukakis debacle was remarkable in itself, it also anticipated a larger point made by both Smith and Garland. For example, Smith (2008:25) writes that while “… we can interpret judicially sanctioned punishments as in part messages from [society’s] core to periphery,” nonetheless, “… at other times we must instead be watchful for contextual and structurally contingent shifts in punishments as attempts … to shut down contending, problematic, or embarrassing interpretive possibilities.”

Writing in a similar vein about the American death penalty, Garland (2010: 254) explains that shifts in the meaning of death penalties can be understood as consequences of legal interactive sequences. His explanation is that “This is how the political process works. Contingent, historical events, specific to a time and place, give rise to a sequence of actions and reactions.” Garland explains that “In that process, contingency counts, context counts, and history counts.” We examine below how Garland uses this approach to explain the legal preservation of America’s death penalty and its implications for our understanding of the Darfur genocide.

This can further help us to understand how the politics of punishment influenced the American response to the Darfur genocide in the way that it did, and with results that were consequential not just for Paribas Bank, but also halfway around the world for the Black African victims of Darfur’s genocide. After very briefly reviewing research on American Supreme Court decision-making below, and in doing so considering relevant case law related to central questions posed in this paper, we will ultimately argue that the approach Garland and Smith apply in viewing the Supreme Court may yet still have beneficial implications for Darfur’s victims of genocide.

Criminology and the Supreme Court’s Racialized Politics of Death

In 1970’s the U.S. Supreme Court concluded that this nation’s use of the death penalty was a form of cruel and unusual punishment and inconsistent with the Eighth and 15th Amendments (Furman v. Georgia, 408 U.S. 238). However, this response to America’s death penalty was not long lasting. Garland (230) explains that “Rather than marking the end of capital punishment in America, Furman marked the beginning of the contemporary system that persists to this day.”

This can help to explain how the Southern District of New York wound up unexpectedly favoring Americans and disfavoring Darfurians as recipients of the financial compensation from the Paribas case. Few Americans are likely aware that the omnibus bill signed into law by President Barack Obama, as noted above at the close of his second term, had such highly adverse financial implications for Darfur’s genocide victims. Simply put, the repurposing of this bill compensated victims of the 9/11 attack on New York City’s Twin Towers, while at the same time denying compensation to the victims of the Darfur genocide. Black Americans and Sudan’s Black African Darfurians, in their different but related ways, both experienced adverse fates at the hands of the American legal system.

Both the Clinton and Bush administrations had made unsuccessful legislative efforts to forestall the Darfur genocide. However, this genocide instead took the lives of hundreds of thousands of Black Africans, while injuring many others. Although no assistance was forthcoming for these victims with funds from the nine-billion-dollar Southern District court settlement, we nonetheless argue in our closing discussion to this paper - using Garland’s sequential interactive theory - that it is still possible that this misfortune can and will be addressed. American criminology occupies an important but too seldom remembered place in this story.

Relatively little attention is given today to the roles that that the NAACP Legal Defense Fund [LDF] and American criminological research played in Supreme Court decisions that temporarily restrained use of the death penalty. The temporariness of this stoppage became apparent in the period leading up to the rapid escalation of America’s mass incarceration policies beginning in the 1980s (see National Research Council, 2014: Figure 2-1, 35). Perhaps most notable in this chain of events involving criminology was the 1987 Georgia criminal case of McCleskey v. Kemp.

Implications of McCleskey v. Kemp

We demonstrate next that there is an important parallel between the Courts’ actions in McCleskey, and congressional actions in drafting the 2015 congressional omnibus bill that is at the center of this paper. An account of the McCleskey case is provided in Amsterdam and Bruner’s (2000: Chapters 6–7) classic volume, Minding the Law (see also Gottschalk, 2006 at 227). A center piece of this case involved extensive analyses of Georgia homicide cases conducted by David Baldus and colleagues at the University of Iowa. Baldus was a legal scholar who made extensive use of multiple regression techniques which were similarly being used in American criminology (see, e.g., Wolfgang and Reidel, 1973; 1975). Baldus wrote with a clarity that led the NAACP Legal Defense Fund to present two exhaustive Georgia case studies by Baldus which were important in the McCleskey case (see also Baldus, 1983).

The significance of the introduction of the Georgia studies undertaken by Baldus is emphasized by Amsterdam and Bruner (see 2000: 394). They note that a half dozen of America’s most preeminent criminologists (Franklin Fisher, Richard Lempert, Peter Sperlich, Marvin Wolfgang, Hans Zeisel, and Franklin Zimring) described this work as “among the best empirical studies on criminal sentencing ever conducted.”

Among the Georgia analyses reported by Baldus was a particularly compelling finding that race was a uniquely salient factor in cases occurring at middle levels of offense seriousness. In these “mid-range” cases, 34% of the killers of White victims received death sentences, compared to only 14% of the killers of Black victims. Baldus could find no variables other than race among 500 factors he considered that could explain this disparity. The implication was that death sentences imposed in cases with White victims were more than twice as high as one would expect given the percentage of victims who were White. McCleskey was Black, his victim was White, and he received the death penalty.

To many social scientists, McCleskey is among the most disturbing manifestations of the American refusal to seriously confront its systemic practices of racial discrimination. What makes McCleskey especially disturbing is the persuasiveness with which David Baldus was able to establish - although without enforceable effect – that racism was so pervasive in Georgia. The apparently irrefutable finding of the Baldus study introduced above was that while “fewer than 40% of Georgia homicide cases involve white victims, … in 87% of cases in which a death sentence is imposed the victim is white” (Garland, 2010: 282).

Even Justice Powell, who led the majority in voting to uphold the death sentence in McCleskey, indicated that he nonetheless assumed the Baldus study was “valid statistically.” Rather than question the statistical validity of the results, the majority in this case instead joined Powell in concluding that its evidence was irrelevant because the sample used to reach its conclusions could not show that the specific decision-makers in the McCleskey case had acted with discriminatory intent. According to the resulting majority opinion, specific evidence of “discriminatory intent” rather than representative evidence of “discriminatory impact,” was the missing required evidentiary proof of disqualifying bias.

Garland (2010: 283) concludes that by this logic “the people’s right to capital punishment thus trumped the rights of black defendants to a fair trial and equal protection.” This was systemic discrimination in action. It is noteworthy that the same unrealistically high standard in the American view would in turn theoretically also have applied to Sudanese leaders accused of leading the Darfur genocide – assuming, for example, that they could be taken into custody and placed on trial at the International Criminal Court, which does not have its own arrest power, and whose authority the United States does not presently officially recognize.

There is a significant parallel between the Courts’ actions in McCleskey, and the congressional actions in drafting the 2015 omnibus bill. Where the Court had substituted “discriminatory intent” for “discriminatory impact” to arrive at its decision in McCleskey, in a parallel way the Congressional drafters in response to the Paribas case had substituted compensation of the Twin Towers 9/11 victims for compensation of the Black Darfurian genocide victims. In the former case, it was a switch involving the independent variables of racial impact and intent, while in the latter case it was a switch of dependent variables involving different groups of White and Black victims. In both, the racial rearrangements imposed to achieve the desired outcomes challenge common sense understandings of justice. The willingness of courts to overlook the racially disparate impact of the death penalty in America was in this way similar to the congressional willingness to overlook its shift of settlement proceeds in the Paribus case from the Darfur genocide survivors to the American 9-11 Twin Tower victims.

Baldus was only one among a number of criminologists who in this same period found strong evidence of racial disparities in the criminal sentencing of Black Americans (see Amsterdam & Bruner, 2000: 392 fn. 6; see also Lifton & Mitchell, 2000). Similarly persuasive is a 130-page analysis of studies by James Liebman (2007) in the Columbia Law Review. This article is unique in its analysis of a variety of different approaches that the Supreme Court pursued over time in deciding the constitutionality of the death penalty.

Liebman (2007: 1) found that once the Court decided to regulate rather than abolish the death penalty, it adopted procedures that experimented in sharing its decision-making responsibilities with the states. Liebman concluded that this innovation proved useful to the court in assessing the wrongfulness of death sentences, at least for deliberate murders. However, while this partial success was potentially useful in pointing to a new and efficient way forward for death penalty decision-making, the Court, in Liebman’s assessment, then proved itself unable to consistently implement this approach (see also Bienen et al. 1988). His conclusion was that this experiment in shared decision making demonstrated that “constitutional regulation of the death penalty is impossible and that the Court should abolish it” (Liebman, 2007: 2). The Supreme Court did not follow this suggestion.

Our discussion of the sentencing literature suggests - here and later in this paper – that despite the acknowledged importance of its methodological contributions, criminology and its allied disciplines could not successfully find a mechanism that the court would or could consistently adopt in its decision-making about death penalty cases. However, we argue that subsequent contributions, especially the contributions of Garland introduced further below, have begun to more successfully show how our legal system can be usefully understood to operate, and how the potentially beneficial results of this improved understanding can impact cases such as those involving the Darfur genocide victims.

The Nine Billion Dollar Dilemma

The Paribas case involved “one of the greatest bank crimes of all times.” ¹ An earlier unsuccessful effort to prevent this genocide occurred when the Clinton Administration pressed congress to pass the Emergency Powers Act and the Trading with the Enemy Act. As noted above, these and later acts passed by the Bush Administration outlawed U.S. dollar trades for the government of Sudan [GOS] through the banking system of the Southern District of New York.

Although Cuba and Syria were also targets, Sudan was the primary concern. Sudan’s President Omar al-Bashir was illegally colluding with BNP Paribas Bank to market Sudan’s oil in exchange for U.S. currency (“petrodollars”) used to acquire heavy weapons which played key roles in Sudan’s genocide in Darfur. These included large Antonov aircraft used to bomb Darfur’s Black African tribal groups who occupied land located on valuable oil deposits the Sudanese government wanted to develop.

Paribas bank joined with other “satellite” banks to disguise the identity of their Sudanese clients. By these means, BNP Paribas effectively established itself as the de facto central bank of Sudan. Human Rights Watch (HRW, 2003: 345) documented the resulting growth of Sudan’s oil sector. It reports GOS oil revenues rose from about 61 million U.S. dollars in 1999 to over 800 million dollars in 2002. Between 1999 and 2001, GOS reported its military expenditures more than doubled from nearly 30% to over 60%. HRW (2003: 343) further explains that:

In 2001, Russia sold eight armored combat vehicles and twelve attack helicopters to Sudan, and Belarus sold Sudan fourteen large-caliber artillery systems …. The impact on the war of the acquisitions of just twelve attack helicopters in 2001 was substantial: … The oil revenue was used to triple the size of Sudan’s attack helicopter fleet in 2001 alone ….

In 2002, further aided by the recruitment of Arab Janjaweed militia in Darfur, Sudan sharply intensified its genocidal attacks (see Prunier, 2005; Hagan and Rymond-Richmond, 2009). These attacks on Black African farms and tribal villages were led with its newly acquired Antonov aircraft and helicopters.

A mortality estimate published in Science indicates between 170,000 and 255,000 deaths occurred in a 19 month period in the state of West Darfur alone (Hagan & Palloni, 2006). In a recent International Criminal Court proceeding involving the first defendant placed on trial from the Darfur genocide, the United Nations UN News similarly reported that hundreds of thousands were killed, and that several million were displaced by the brutal fighting.

In 2014, BNP Paribas entered a guilty plea admitting responsibility for its sanction violations in association with Sudan:

… BNPP has acknowledged that, from at least 2004 through 2012, it knowingly and willingly moved over $8.8 billion through the U.S. financial system …. The majority of illegal payments were made on behalf of sanctioned entities in Sudan, which was subject to U.S. embargo based on the Sudanese government’s role in facilitating terrorism and committing human rights abuses …. Indeed, in March 2007, a senior compliance officer at BNPP wrote to other high-level BNPP employees and legal employees reminding them that certain Sudanese banks with which BNPP dealt ‘play a pivotal role in support of the Sudanese government which … refuses the United Nations intervention in Darfur’ (United States Department of Justice, 2014).

The importance of this case was reflected by the five prominent law enforcement officials who gathered to announce the plea agreement: U.S. Attorney General Eric Holder, the U.S. Attorney for the Southern District of New York Preet Bharara, FBI Director James B. Comey, Chief Richard Weber of the Internal Revenue Service, and District Attorney Cyrus R. Vance Jr. of New York County.

The guilty plea by Paribas produced the near nine-billion-dollar criminal penalty reported above, which was further supplemented by a civil monetary penalty of $508 million, a monetary penalty to the New York State Department of Financial Services of over $2.2 billion, as well as a fine of $963 million to the Treasury Department’s Office of Foreign Assets Control, and a fine of $963 million paid directly to the Department of Justice.

However, victims of the Darfur genocide received no compensation from the proceeds. The scholar-activist Eric Reeves (2015) wrote in the New York Times that this “issue remains central since so many Sudanese clearly meet the criterion set down by the presiding federal district court Judge, Loma G. Schofield.” She insisted that “Those deserving restitution are people who have been ‘harmed directly and proximately’ by BNP’s [Paribas] criminal conduct.”

In May of 2015, the Department of Justice had issued a several-page statement that preceded Reeve’s New Yok Times op-ed, reporting that:

In accepting BNPP’s guilty plea, Judge Schofield stated that BNPP’s actions ‘not only flouted U.S. foreign policy but also provided support to governments that threaten both our regional and national security and, in the case of Sudan, a government that has committed flagrant human rights abuses and has known links to terrorism. (United States Department of Justice, 2015).

The press release then described the plan Eric Holder’s Department of Justice had initiated for compensation of the harmed Black Africans in Darfur:

The Justice Department is exploring ways to use the [BNPP] forfeited funds to compensate individuals who may have been harmed by the sanctioned regimes of Sudan, Iran and Cuba … the Justice Department is inviting such individuals or their representatives to provide information describing the nature and value of the harm they suffered. Beginning today (May 1, 2015), interested persons can learn more about the process and submit their information at www.usvbnpp.com, or call 888–272–5632 (within North America) or 317–324–0382 (internationally).

Thus, in the spring of 2015, victims of the Darfur genocide were apparently on track to receive compensation for their victimization. However, in the final month of 2015, the circumstances surrounding the Paribas prosecution abruptly changed – especially for the Darfurian victims.

John Bellinger Unburies the Omnibus Bill

The new circumstances were summarized in Lawfare, a security issues blog published with the Brookings Institution. The summary was written by John Bellinger (2015), a former Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, as well as the Counsel for National Security Matters in the Department of Justice from 1997–2001. Bellinger explained the meaning of the final text of a lengthy and technically cumbersome “omnibus bill” that might have otherwise remained buried in the arcane records of congress.

Bellinger’s account opened with a statement that seemed to mix surprise with skepticism. He wrote that without prior hearings or consultation with the Executive branch that: “Buried at the end of the Consolidated Appropriations Act signed by President Obama … is a long and complex provision that creates a new ‘United States Victims of State Sponsors of Terrorism Fund’” (1).

Bellinger went on to explain that after the departments indicated above received their shares of the allocations that “the legislation stated the $3.8 billion civil penalty collected by the Department of Justice … may be used only for the Terrorism Victims Fund and 9–11 victim compensation programming reauthorized in the Omnibus,” while then adding for emphasis that, “the legislation specifically states that the BNP Paribas moneys ‘may not be used for a compensation program that the Department of Justice announced it was considering in May’ [see above, emphasis added]. Bellinger then took note of the further provision that “despite the explicitness of this rejection of a compensation program for victimized Black African victims in Darfur, the legislation … allows attorneys for the victims to receive up to 25% of the payments from the fund …, a surprising earmark from a Republican-controlled Congress.” The importance of this compensation for lawyers is explained later in this paper. Meanwhile, Bellinger seemed implicitly to be asking what Barack Obama was thinking when he accepted the blanket rejection of compensation for Darfur’s Black African victims by signing the “United States Victims of State Sponsors of Terrorism Fund” into law.

Bi-Partisan Bait and Switch?

So why did President Obama, seemingly so willingly, end the compensation plan that his own Department of Justice, under Eric Holder, had begun to develop in 2015 for the Darfur genocide victims? This became a criticism that Barack Obama increasingly confronted as his presidency came to an end.

For example, Armin Rosen (2017) criticized Obama in an article for the Nation titled “How Obama Went from Calling to Save Darfur to De-Sanctioning Sudan ….” Rosen recalled that on April 30th in 2006, when Obama was emerging as a candidate for president, he had joined thousands at a Save Darfur rally on the National Mall, where [Elie] Wiesel, Gorge Clooney, and then-Senator Barack Obama, had urged the U.S. to take stronger action to end genocidal atrocities in Darfur.

Yet by the end of his second term, Obama had removed many of the U.S. sanctions previously imposed on Sudan. His explanation was that Sudan was now cooperating in American counter-terrorism efforts. Yet the President of Sudan, Omar al-Bashir, was at this moment also facing charges of genocide at the International Criminal Court for Sudan’s violence against Darfur’s Black Africans.

And there was a further disturbing possibility, more specifically involving Sudanese counter terrorism activities that Obama may have been referring to above, and which a reviewer of this paper also describes:

Most of the on-the-ground foreign military muscle of the war against the Gadaffi Regime in Libya starting in 2011 came from the Sudanese government, including many Sudanese tank units, while the US, UK and France supplied the air power. I do not know if lifting sanctions was a condition of Sudan fighting on the US side in that war. It just makes sense that Sudan would say that the US and NATO cannot expect Sudan to support them in their latest war while they still have sanctions against Sudan. More than that, Sudan would be negligent if it did not so insist.

Although we cannot confirm the above speculation, we find it persuasive, and it does not conflict with the issues Obama and Holder were likely discussing, albeit in less specific terms, in passages summarized by Obama that we quote verbatim below.

Rosen’s challenges were also unsparing in other ways. For example, Rosen further noted that in an eerily prophetic speech while campaigning for his first term as President in 2006, Obama had lamented how office holders often changed so blatantly when they were elected: “We get busy. We get distracted. And the searing images of children being slaughtered, and women being assaulted start fading from view ….” Still, Senator and presidential candidate Obama had nonetheless predicted “… that a new day is dawning and [a] righteous spirit is on the move.” Yet, a decade later, in 2015, he was announcing the end of sanctions against Sudan. This leads us to ask what “contingent circumstances” might Garland and Smith have had in mind in explaining the President’s thinking.

Patriotic Contingent Circumstances

As noted earlier, Smith (2008:25) observes that at times we need to be watchful for “contextual and structurally contingent shifts … to shut down contending, problematic, or embarrassing interpretive possibilities.” The final weeks of Obama’s second term involved such embarrassing possibilities, for example, which likely would have resulted in patriotic outrange in response to any efforts he personally might have made to resist approval of use of the BNP Paribus fine for creation of the “Victims of State Sponsors of Terrorism Fund” instead of as a compensation fund for Black Darfurian genocide victims. Obama’s final days in office seemed to have left him with few options.

In Peculiar Institution, Garland focuses on the period discussed above in which the western democracies were abolishing their death penalties. Garland (especially 280–284) explains that beginning in the 1970s, a structural shift was underway in the United States that would revise but not terminate its own use of the death penalty. He notes that the ensuing evolution of the Supreme Court’s approach not only allowed the death penalty to continue, but also for other discriminatory practices to increase. The latter practices excluded survivors of the Darfur genocide from receiving, or even sharing in, the benefits of the nine-million-dollar settlement of the Paribas case.

Garland traces America’s preservation of its modern death penalty to the 1976 case of Gregg v. Georgia. He explains that decisions in Gregg marked a retreat from an earlier 1960s civil rights influenced Furman v. Georgia decision. Gregg included a shift toward a 1970s law and order orientation which coincided with America’s approaching race linked escalation of its mass incarceration policies (Simon, 2007).

This era, Garland suggests, brought new arrangements intended to guide use of the death penalty through the enforcement of legal, procedural, and evidentiary principles. He (2010:262) identifies “three bright threads” among these requirements: including rationalization through juridification of capital punishment decision-making grounded in the 14^th amendment and its focus on legal rules and procedures; a civilizing and humanizing jurisprudence based on the eighth amendment’s prohibition of “cruel and unusual” practices ostensibly meant to minimize the death penalty’s most brutal forms; and a democratizing and localizing jurisprudence that reaffirmed the separation of powers that increased the authority of state courts and local decision makers.

All three of these decision-making threads were important, but the third was especially important in reinforcing the contingent influence that the separation of powers extended to the states to make their own decisions. Beyond this, Garland’s analysis attributes a further important role to what he calls civilizing and humanizing jurisprudence. The latter is the process he sees as preoccupying America’s “peculiar institution” as it sought to minimize egregious reminders of the racialized lynchings of the Jim Crow era. Both America’s Jim Crowe lynchings and Sudan’s genocidal atrocities had the effect of treating racialized killings as allowable spectacles.

However, Garland noted that during this period the American death penalty had also substantially declined in its use. As this happened, the work of the Court was thus preoccupied with two distinct matters: “banning legal lynching, which it would do, and banning the death penalty, which it would not” (Garland, 2010: 281). The result was a way of preserving rather than abolishing America’s death penalty. These measures seemed designed to make America’s use of the death penalty less observably painful, as well as less visibly horrifying, and often more private in its final fatal moments.

However, the refusal to ban the American death penalty allowed other systemically controversial racialized practices to continue. The inability and/or unwillingness of the Court to deal directly with many forms of racial disparity was made particularly clear, as discussed above, in Garland’s discussion of the 1987 Georgia case of McCleskey v Kemp.

From David Garland to Barack Obama and Donald Trump

David Garland and Barack Obama are both remarkable students of the place of symbolic communication and the roles of performance and discourse in American political life. It seems probable that Garland (2010: 312) when writing Peculiar Institution was thinking, at least in part, about the then recently elected President Obama when he observed that “The system of capital punishment that exists in America today is primarily a communication system.” Although he observes that capital punishment in this respect has settled into a declaratory and discursive period, he is careful to also say that this is a period which is “no less powerful in its political, legal, and cultural effects.” Barack Obama often seems the modern embodiment of these changes, as reflected by his reluctance to endorse an end to the death penalty - asserting instead, for example, that in cases of child rape, “states have the right to consider … capital punishment” (cited by Garland, 2010: 250).

Garland’s emphasis on the civilizing aspects of reforms in the American death penalty parallels Obama’s growing interest in broader structural changes in America’s civic culture. Commenting at a leadership summit for young people and his Chicago foundation, Obama warned that “what’s wrong with our politics is a reflection of something wrong in our civic culture” (Politics, 2017).

Obama’s role as a politician rather than as a scholar, and the declarative aspect of his public remarks, are particularly interesting examples of Garland’s argument about the performative turn that characterizes contemporary American politics. However, speeches and carefully curated political positions are one thing, and the need to make a decision when confronted with a pressing racialized issue is something else again. The omnibus bill that withheld expected compensation for Darfur’s Black African victims of genocide was the latter kind of circumstance, especially given that Obama’s successor would be Donald Trump.

Obama’s decision to sign the omnibus bill came quickly at the conclusion of his second term. He probably felt little choice but to sign, not only because his second term was nearly finished, but also because he knew many Americans, encouraged by Donald Trump, were suspicious about both his birthplace and his patriotism. Obama explained that “having the son of a black African with a Muslim name and socialist ideas ensconced in the White House with the full force of the U.S. government under his command was precisely the thing they wanted to be defended against” (2020: 308).

The prospect that Obama could successfully block a bill revised to compensate the victims of the September 11 Twin Towers attack, even though it also completely denied compensation to Darfur’s Black African genocidal victims, was unlikely. To paraphrase Garland, “this is [NOT] how the political process works.” There are abundant examples.

Early in his administration, Obama had attended his first G20 summit in London and negotiated a collective agreement in response to the sub-prime crisis he inherited on taking office. This agreement was understood by many as a major achievement, but when he was asked a few days later for his views about American exceptionalism, he answered that he not only believed in American exceptionalism but that he assumed all the other G20 leaders believed in their own nations’ exceptionalism as well. “Later,” Obama (2020) learned, “Republicans and conservative news outlets had seized upon this unremarkable statement … as evidence of weakness and insufficient patriotism on my part” (Obama: 344). Political patriotism was a consistently treacherous topic for the first Black American President.

Other incidents also underline how the politics of patriotism was a recurring problem for Obama. e.g., early in his administration, Obama tried to deliver on his campaign promise to close the detention center at Guantanamo. In 2010, Illinois Senator Dick Durbin proposed using a mostly vacant prison in a remote part of Illinois as a place to hold nearly 90 of the Guantanamo prisoners. However, Republicans refused to fund it, saying the detention center would be a terrorist target. Dick Cheney accused Obama of embracing pre-2001 (i.e., 1960s) ideas about law enforcement that ignored the concept of a “serious military threat” to the homeland (Obama, 2020:583).

The Republicans thus treated Obama’s racial identity as symbolic of his progressive policies and as a political weakness that made for an easy target. It was not hard to see how and why Obama became increasingly cautious about appearing weak on terrorism or patriotism. He was in no position with Trump coming into office to wage a highly publicized and politicized battle in defense of Darfur’s genocide victims. But there was more to this story than likely was apparent.

Much that was unapparent involved the unique relationship between Barack Obama and his Attorney General, Eric Holder. Obama (2020: 585) was close to Holder, yet he also prided himself as being scrupulous about “White House interference in pending and ongoing investigations.” Obama was aware that Holder often served as another conveniently Black target for Republicans and Fox newscasters. Obama himself (2020: 586) held Holder responsible for “the heat we [i.e., Obama et al.] took at the White House for the justice department’s legally sound but politically toxic decision not to indict any of the bank executives for their role in the financial crisis ….”

The focus of the 2015 omnibus congressional bill which established the “Victims of State Sponsored Terrorism Fund” at the expense of compensation for Darfur’s Black African victims was so central to both Obama and Holder’s concerns about racial disparities that it is difficult to imagine that the specifics of this issue went undiscussed. However, the bigger question is not how careful they were in discussing this topic, but rather whether accepting the sweeping terms of the “Victim’s Fund,” denying any support for the Darfur victims, was inevitable. Our answer is that this outcome likely was inevitable, and that there is more to this story and about what Obama and Holder nonetheless accomplished. The following section offers unique empirical evidence that supports this conclusion.

The Corporate Prosecution Registry

The Duke University legal scholar, Brandon Garrett, working with his University of Virginia law colleague, Jon Ashley, has developed a unique “Corporate Prosecution Registry” (2014) which is intended to provide a complete accounting of “federal prosecution declinations, acquittals, trial convictions, deferred and non-prosecution agreements, and plea agreements with corporations” (2020: 110fn10). Garrett has used these data to analyze the Obama and Trump era bank prosecutions (see Garrett 2014; 2016; 2020), and this has produced some noteworthy results in relation to Obama and Holder’s record.

We begin with Garrett’s interpretive analysis and then briefly take advantage of the ongoing cumulation of these data to empirically understand how the Obama era compared to what followed under Donald Trump, and the implications for what may still lie (Garrett, 2014, 2016, 2020) ahead. It is important to begin by noting that prior to the 2008 financial crisis, when Obama became President and Holder was appointed Attorney General, the federal courts prosecuted very few banks and the public took little notice. However, after the financial crisis, attention to federal bank prosecutions increased, with criticism focusing on banks characterized as “too big to jail.” As noted above, President Obama attributed some of this to Holder’s prosecutorial decisions. Yet this did not mean that banks went entirely unpunished during the Obama-Holder years.

As Garrett (2016: 33) demonstrates, there was actually a remarkable rise in the number of federal bank prosecutions during the Obama-Holder period, including the conviction of BNPP Paribas. Yet while this rise in prosecutions was notable, there were concerns that prosecutors also cut deals which left responsible individuals unpunished while undermining presumably intended compliance goals (2016: 34).

Recently, Garrett (2020) has updated the previous findings and conclusions to 2018, which has allowed him to undertake a comparison between the last 20 months of the Obama administration and the first 20 months of the Trump administration. The results not only suggest that we should not overlook the surge in bank prosecutions, especially during the second Obama-Holder term, but also how quickly Trump’s single term in office resulted in a softening of federal prosecution of banks.

Garrett (2019: 109) offers a cogent summary of the comparative difference between the later Obama and early Trump months in office:

… in its last twenty months, the Obama Administration levied $14.15 billion in total corporate penalties by prosecuting seventy-one financial institutions and thirty-four public companies. During the first twenty months of the Trump Administration, corporate penalties declined to $3.4 billion …, with seventeen financial institutions and thirteen public companies prosecuted.

The ratio of penalties for financial compared to public institutions was more than four times greater in the Obama than the Trump period – a notable disparity.

As noted, a strength of the data collection registry is that it is ongoing. Garrett also has used additional data from the registry to confirm a pattern of growth associated with enforcement of the Federal Corrupt Practices Act [FCPA] against banks. The provisions in this act make it a crime to bribe foreign officials for business purposes. Interestingly, the registry data indicate growth in corporate settlements involving financial institutions, including banks in both the Obama and Trump administrations, but especially during the Trump years, which requires explanation.

This later increase can be explained with what we have noted David Garland calls interaction sequences and reactions to structurally contingent change. Garret (2020) identifies how this shift was initiated in 2012 during the Obama administration through the creation of a specially dedicated FCPA unit within the Department of Justice. This unit was expanded in 2016, near the end of Obama’s second term, with the addition of ten new prosecutors, doubling the size of the unit as Holder’s term as Attorney General came to an end.

During this period, the FBI also reacted by reinforcing its external investigative contribution to these prosecutions by creating three squads of agents assigned to work on FPCA cases. This work continued to produce increased corporate settlements during the Trump period, despite a newly announced Trump era commitment to prosecute fewer corporate criminals. Consistent with Garland’s thesis, the implication is that this kind of interactive sequence, assisted by a sufficiently powerful external source of reactive structural support, in this case provided by the FBI, can continue to promote growth despite changes of administrations. We explain below the importance of this observation to our understanding of the Obama administration.

First, however, we emphasize that the low level of bank prosecutions prior to the Obama-Holder years, followed by the surge in size and number of these prosecutions under Obama-Holder, followed by the large overall decline in bank prosecutions with Trump’s arrival in office, suggests that more credit is due for what the Obama-Holder years produced – even though it is also true that individual bankers still seldom serve time in jail.

Second, the uniqueness of the ground-breaking prosecution of BNP Paribas [BNPP] during the Obama-Holder period deserves more public awareness than it has received, including for the fact that individuals were actually punished, albeit not directly because of Department of Justice initiative. Rather, it was the New York State Department of Financial Services that could claim credit for insisting that BNP Paribas agree in its guilty plea to “terminate or separate” 13 employees from the bank. Among these 13 were the bank’s Group Chief Operating Officer as well as a number of other senior executives.

The BNP Paribas Case as an Interactive Sequence of Actions and Reactions

The guilty plea by BNP Paribas also marked the significance of the kind of interactive sequence and structural reaction discussed by Garland, even though the BNP Paribas case also differed in notable ways from the state-based context of the death penalty in Peculiar Institution. The BNP case was the product of federal law enforcement specifically undertaken in the Southern District of New York’s U.S. Attorney Office, with help from the Manhattan D.A., the FBI, the IRS, and the state of New York. This mix of powerful actors in the Southern District worked in notable ways that paralleled the action and reaction sequences analyzed by Garland.

While the sequence following from the BNP Paribas case has taken years to unfold, its implications may nonetheless be consequential in unexpectedly important ways. On the day the 2015 omnibus bill became public, the Wall Street Journal reported that “tucked into the massive spending deal … are provisions that effectively take $3.8 billion of the BNP fine from the Justice Department and put it toward paying victims of the 9/11 attacks ….” (Viswanatha, 2015:1). This article significantly noted that the bill did not appear until page 1901 of the 2009-page omnibus package.

However, the article did not mention that funds designated as appropriate for compensation of Darfur victims explicitly were removed for use in this way. Instead, the story speculated that the bill reflected “a growing unease from lawmakers with giving the Justice Department sole discretion over how to spend the record sums it has recently taken in,” while indicating that the source of this “unease” was that “the Justice Department [as indicated above] set up a website to collect information from potential victims and said it would study who it could legally turn over the funds to.” It noted that the omnibus bill instead directed U.S. Attorney Holder to appoint a “special master” to oversee distribution of the funds exclusively to the 9/11 victims.

These features of the bill likely stimulated an interactive sequence and reaction of the kind that Garland anticipates and which we consider next. Focusing on two Southern District of New York court decisions that followed the BNP Paribas guilty plea, Stanford law professor Beth Van Schaack (2019) identified a key issue in what her article calls ‘The Decision to Revive the Sudanese Genocide Lawsuit.’

The issue, Van Schaack explained, was that BNP Paribas bank was either liable for acts that subsidized genocidal violence against Sudan’s Darfur victims, or it indirectly was liable for the conduct of the Sudanese forces under theories of conspiracy and aiding/abetting. Notably, the plaintiffs in this new lawsuit were identified as citizens of the United States who were suing on behalf of a larger class who were victims and notably also U.S. citizens. The citizenship status of the latter group made them less politically vulnerable to the biases of a patriotic attack or dismissal.

Originally, the district court that heard the case in 2016 had dismissed it for what is known as the ‘act of state doctrine’ as well as the expiration of a statute of limitations for pursuit of the case. The latter issue was rejected at the appellate level as a mistaken technicality, while the former “act of state doctrine” was taken more seriously. BNP Paribas, as the alleged defendant, contended that the doctrine required the court to declare “upon the legality and validity” of an “official act” of a foreign sovereign (Case 1: 16-cv-03228-AJN).

However, on appeal, the 2nd Southern District Circuit ² unanimously reversed the district court, holding that “The act of state doctrine cannot shield this genocide from scrutiny by the courts of the United States because, …, both Sudan’s own laws and a universal international consensus prohibit us from deeming genocide an ‘official act’ of Sudan, or for that matter, of any state, that could supply or support a rule of decision for our courts.”

In response to the circuit court’s reversal, Van Schaack recalls that the earlier suit against BNP Paribas had been quite costly to the bank in its near $9 billion in fines and forfeiture penalties - the largest financial penalty on record when imposed in 2014. Van Schaack further emphasizes that these funds were found to involve the proceeds of criminal activity, and that these funds were therefore expected to go to the people who were directly harmed. However, she emphasizes that a Darfur compensation fund was never created.

The effect of the New York District Court’s earlier decision, and the Circuit Court’s 2018 reversal, was as the title of Van Schaack’s article suggests: to “revive the Sudanese genocide lawsuit.” As Garland’s interactive sequence and reaction perspective anticipates, the implications of this outcome went beyond what the terms “reversal” and “revival” alone imply.

To begin, Van Schaack observes that the BNP Paribas prosecution strategy involved a creative “workaround” based on ordinary state tort law rather than relying upon an Alien Tort Statute [ATS] to gain federal jurisdiction. The ATS in the past had proven an unreliable vehicle for human rights cases. The success in the Southern District class action reinforced an argument that human rights advocates should in the future utilize U.S. state courts as a promising forum for their claims.

The combination of the 2014 BNP Paribas guilty plea and resulting 2015 conviction, and the Circuit Court’s 2018 reversal of the District Court’s decision, placed lawyers acting on behalf of Darfur plaintiffs in a strengthened position to develop a new civil class action case against BNP Paribas. The 2014 criminal case established the genocidal harm associated with the role BNP Paribas had assumed when in effect it assumed a central bank role for Sudan and thereby dramatically increased the petrodollar profits Sudan could reinvest in waging genocidal violence against Black Darfurians. The BNP guilty plea in the 2014 criminal case now further provided a foundation for a new civil case focusing on the genocidal violence inflicted by Sudan on a class of Darfurian victims who are now residents or citizens of the United States.

A further reaction in the interactive sequence involved the fees provided in the omnibus bill for lawyers representing 9–11 victims, establishing a precedent for a similarly compensated representation in class action civil suits on behalf of U.S. residents or citizens of Sudan’s genocidal violence. Said differently, the precedent resulting from the 2014 criminal case for the payment of fees to lawyers representing plaintiffs – who were in the omnibus bill designated as 9/11 victims – could now be claimed by the lawyers acting on behalf of U.S. resident or citizen victims of the Darfur genocide living in the Unites States.

Another Step in the Sequence

While David Garland’s analysis of America’s Peculiar Institution accounts for how the United States retained its death penalty in the face of its elimination in other western nations, his analysis is not intended or presented as a predictive theory. Still, Garland’s analytic framework is a source of unique insights into how America’s judicial system responds in important ways to changes in currents of public thought. More specifically, it accounts in the case of the death penalty for how historically this penalty was preserved and modified in a particular period as likely a law-and-order response to concerns about fears of rising crime (Simon, 2007). The point is that this framework is a broadly useful tool for purposes of understanding stability as well as change in important legal contexts.

For example, we have argued that by demonstrating the role of an “interactive sequence of actions and reactions,” Garland’s approach also helps us to understand the still ongoing and evolving prosecution of the French BNP Paribas bank, which most recently has reemerged as the source of the renewed pursuit of compensation for Black U.S. resident and citizen victims of the Darfur genocide. The interactive sequence of actions and reactions in the earlier 2014 BNP Paribas case, with its disparate responses to the victims of the 9/11 Twin Towers attack and the atrocities committed in Darfur, is a dramatic illustration of how contemporary American legal opinion, in an important international human rights case, is continuing to evolve, even if we make no certain claims predictively about the form this evolution will take.

We nonetheless close by hazarding a prediction about the recent civil suit filed against BNP Paribus. We base this prediction on the unique combination of actions and reactions that are shaping renewed efforts to gain compensation from BNP Paribas bank. This new Southern District of New York civil suit ³ is following in the footsteps of the 2014 BNP Paribas criminal conviction, and as we have noted with broader consequences, by acting on behalf of 21 named claimants representing a class of as many as 15,000 U.S. permanent residents and citizens who came as refugees to the United States as victims of Sudan’s genocidal violence. The reactive sequence that has followed from the plea bargained 2014 criminal conviction of BNP Paribas is an advantageous precursor for this ensuing class action suit.

As we have noted, the omnibus 2014 bill authorized future payments to lawyers who successfully represented plaintiffs in Twin Tower cases. Going forward, this precedent encourages the involvement of law firms and their lawyers to act as well on behalf of the above noted Sudanese class of actors who have successfully come to the United States and become naturalized citizens. Collectively, we predict that this interactive sequence of actions and reactions increases the likelihood of a positive compensatory outcome.

Yet at the same time, it is important to note that by narrowing its representation to these U.S. residents and citizens, and thereby increasing their prospects for success, it simultaneously has omitted representation for the far larger class of victims of the Darfur genocide who lack American residency or citizenship. Still, it is also possible that this case is a first reactive step that will nonetheless open wider possibilities. Garland’s theory does not predict the specific outcome of this case, but it nonetheless offers important hope and encouragement for the recognition of a wider class of Darfur’s genocide victims, and in doing so, it encourages the pursuit of this possibility.