African Americans lament that the cops are never there when you need them—that “911 is a joke,” as the Public Enemy song goes—and then they complain that their communities are “overpoliced.” These gripes aren’t so much inconsistent as they are underdeveloped, or they have been until now. James Forman Jr.’s revelatory new book, Locking Up Our Own: Crime and Punishment in Black America, sets out to describe how, and explain why, both complaints are valid and what that means for criminal-justice reform.
If a conservative is a liberal who has been mugged, you might expect black folks, who are disproportionately victims of crime, to support the politics of law and order. And they frequently have done just that, according to Forman, a former public defender in Washington, D.C.; a co-founder of a D.C. charter school for at-risk youth; and now a professor at Yale Law School. Using the District of Columbia (a k a “Chocolate City”) as his laboratory, Forman documents how, as crime rose from the late 1960s to the ’90s, the city’s African American residents responded by supporting an array of tough-on-crime measures. A 1975 measure decriminalizing marijuana died in the majority-black city council, which went on to implement one of the nation’s most stringent gun-control laws. Black residents endorsed a ballot initiative that called for imposing harsh sentences on drug dealers and violent offenders. Replicated on a national level over the same period, these policies led to mass incarceration and aggressive policing strategies like stop-and-frisk, developments that are now looked upon as affronts to racial justice.
Much of what Forman reports would not surprise anyone who has spent time at a black church or a black barbershop—or in the company of my mother. In the ’60s, she marched with Malcolm X, and during the ’80s, after the public school where she taught was vandalized, she said, “Those niggers should be put under the jail.” My mom’s ideas about criminal-justice policy are informed by getting held up at gunpoint in front of our house on Chicago’s South Side, seeing family members suffer from addiction, and watching the cops treat my stepfather like a criminal after he got into a fender bender with a white man.
Needing the criminal-justice system to help keep you safe, to be fair in its investigations, and to be merciful with people who’ve run afoul of the law—this urgent, unwieldy agenda explains much of African American politics, from the anti-lynching campaigns of the early 20th century to the Black Lives Matter movement today. As Forman reminds his readers, black people have long been vigilant, often to no avail, about two kinds of equality enshrined in our nation’s ideals: equal protection of the law, and equal justice under the law.
The absence of equal protection has been, historically, the most vexing problem in the lives of African Americans. The NAACP was founded in 1909 partly in response to the federal and state governments’ turning a blind eye to white violence against blacks. More than half a century later, as open-air drug markets flourished in inner-city neighborhoods, black activists perceived a related form of racist neglect by the state. The police, they believed, would have shut down those markets had they existed in white communities. In fact, as Forman notes, many activists thought that those in power actually condoned the availability of drugs in the hood, as a means to keep the black man down. (In those days, it was black men—rather than all black people—who were seen as principally injured by racism, a fallacy that made its way into government policy under the guise of the controversial Moynihan Report in 1965.) The black radical Stokely Carmichael, speaking at a historically black college in 1970, said, “Fighting against drugs is revolutionary because drugs are a trick of the oppressor.”
Back then, many white progressives were pro-pot, and disinclined to see drug prohibition as part of a revolutionary utopia. African American suspicion of white liberals is a theme throughout Locking Up Our Own. One reason the 1975 effort to decriminalize marijuana in Washington, D.C., failed is that the bill’s two primary supporters were white men. Forman quotes the spoken-word artist Gil Scott-Heron’s portrayal of a typical white member of Students for a Democratic Society: “He is fighting for legalized smoke … / All I want is a good home and a wife and children / And some food to feed them every night.”
Scott-Heron’s very traditional wish list reveals another important explanation for black support of law and order. Not for the first time, many middle-class African Americans subscribed to the “politics of respectability”: The race advances, the view goes, when black people demonstrate that they are capable of living up to white standards of morality and conduct. Among the black elite, advocacy for lenient criminal-justice policies was deemed an admission that black interests were allied with the interests of criminals. That sort of solidarity would hardly help the cause. For many bougie African Americans—certainly those in cities like Washington and Atlanta, where light-skinned blacks dominated the middle class—colorism was also at work: The fact that their dark-skinned hoodlum cousins were getting locked up was not a problem. Indeed, one of the primary arguments for allowing African Americans to join Atlanta’s police department in the 1930s and ’40s was that they would be better able than white officers to distinguish between elite blacks and the riffraff.
As Forman tells the story, the politics of respectability converged with other cultural and social influences to shape tough-on-crime attitudes in the black community. He builds on, among other things, two conclusions associated with the work of the Harvard Law School professor Randall Kennedy. In Race, Crime, and the Law, Kennedy argues that African Americans suffer more harm from underenforcement of the law than from overenforcement. He also notes that “racist” can be, from the perspective of African Americans, an inaccurate way to describe criminal-justice policies that burden primarily black criminals. Forman doesn’t endorse these views. Rather, he demonstrates how influential they were in the black body politic during an era of high crime.
At the same time, he avoids any hint of the “gotcha” spirit that some commentators found in Michael Javen Fortner’s Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment, which mines similar territory. Whereas Fortner’s analysis could be read as a rejoinder to the Black Lives Matter movement—implying that early support for harsh sentencing in drug cases undercut later critiques of the policy—Forman’s experience as a D.C. public defender gives him more street cred. His stories about clients make it clear that, however well-intentioned black middle-class power brokers were in fashioning conservative approaches to criminal justice, the policies that resulted were devastating to the larger community.
Some of those stories will stay with me a long time. One woman lost her hard-won job at FedEx because she got arrested for possessing a little bit of weed, and then couldn’t get the job back even after the prosecutors dropped the case. Her arrest record will follow her like a curse for the rest of her life, all because cops pulled her over, supposedly for the infraction of driving a car with dark tinted windows. Though Brandon, a scared 15-year-old kid, had a gun, he never used it. He was sent to jail for six months anyway when a cop found him carrying it (along with a small amount of pot). Forman doesn’t tell us how things turned out for Brandon, but few boys sentenced to D.C.’s notorious Oak Hill juvenile-detention facility left better off than they came in. Sending a nonviolent kid there was like sending him to a finishing school for criminals.
I was a prosecutor in D.C. during part of the time that Forman writes about, and I have some stories too. I loved standing in front of juries in my best suit, announcing my name and declaring that I represented the United States. (The federal government is the primary local prosecutor in the capital, because of the city’s status as a district and not a state.) The jurors—often elderly black people—would beam at me, and I imagined them thinking, You go, boy, you represent the United States! I didn’t know the term politics of respectability at the time, but I did know how to cross-examine a defendant (virtually every single one was black) and mock his diction and references to his “baby mama,” and then button up my jacket and give the jury a look indicating that they and I were middle-class Negroes and the defendant was a thug who needed to be locked up. I won most of my cases, and Forman’s book helps me understand that my trial-advocacy skills weren’t the only reason.
But I didn’t win all my cases, and that helps me understand that not all the black people in D.C. were as complicit as Forman implies. When I was in training, various experienced prosecutors told us rookies that in some cases we would convince the jury that the defendant was guilty. But if it was a drug case, jurors might find him not guilty because they didn’t want to send another young black man to jail. That did indeed happen, and when I left the prosecutor’s office and became a law professor, I learned that this practice of jury nullification is not simply legal. It is a check built into the Constitution, through the double-jeopardy clause, which has been interpreted to mean that not-guilty verdicts cannot be reversed for any reason. The purpose is to let the people, rather than a power-mad prosecutor of the kind I used to be, have the final say in the fate of the accused.
I am not sure what Forman would make of the fact that in the nation’s capital, widespread jury nullification in drug cases coincided with the city council’s passage of a law in 1994 that took away the right to a jury trial in many misdemeanor cases. As a result, D.C. residents have fewer rights to a jury trial than do the residents of most states. More-vivid evidence of deeply mixed impulses with perverse consequences would be hard to find: A law passed by a majority-black city council protected prosecutors (who, though you won’t learn this from Forman, remain majority-white) from the judgment of majority-black juries.
Locking Up Our Own is a well-timed, nuanced examination of the past, but I am glad that the story it tells is over. Beginning in the early ’90s, crime went down dramatically across the country. It has continued, by and large, to decline. Activists have turned their attention to mass incarceration and police violence. Even mainstream civil-rights organizations now focus on reducing sentences and making the police more accountable and transparent. Gone are the days when some black activists and politicians aimed to equip cops with more-powerful guns, as then–D.C. Mayor Marion Barry wanted to do during the crack wave that began in the late ’80s.
As everyone knows, Barry himself got caught up in that epidemic and eventually, like a lot of the African American politicians who figure in Forman’s account, changed his mind about what was in the best interests of the community. If law-and-order policies had actually worked to make neighborhoods safer, maybe people would have been willing to tolerate them, despite the racial disparities and erosions of civil liberties they entailed. But they did not work. Most criminologists don’t credit aggressive policing and harsh sentencing with substantially reducing crime, in part because crime went down in jurisdictions that weren’t relying on those policies.
At its best, democracy is about being creative and experimental, learning from mistakes and trying a different approach. Locking Up Our Own makes a powerful case that the African American community was instrumental in creating a monster. We should be grateful that the same community—from nullifying D.C. jurors and Black Lives Matter activists to writers like Michelle Alexander and artists like Beyoncé and Kendrick Lamar—is leading the fight to take the monster down.
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