Any real discussion of mass incarceration is impossible without addressing racism. Michelle Alexander’s widely acclaimed book The New Jim Crow cast the criminal-justice system as a successor to slavery and segregation, one that’s hamstrung the African American community’s social and economic growth since the civil-rights movement. My colleague Ta-Nehisi Coates has explored at length how racial anxieties led white politicians to support increasingly harsher punishments for gun and drug crimes to devastating effect.
Locking Up Our Own: Crime and Punishment in Black America adds more layers to this case. (A full review of the book can be found in the upcoming June 2017 issue of this magazine.) The author, James Forman Jr., is a Yale University law professor and the son of a civil-rights icon. What he offers is an insightful history of black American leaders and their struggle to keep their communities safe from police and criminals alike. “Far from ignoring the issue of crime by blacks against other blacks, African American officials and their constituents have been consumed by it,” he writes.
What often followed, however, was a tragic embrace of punitive solutions to deep-seated social woes. “We’re going to fight drugs and crime until the drug dealer’s teeth rattle,” Atlanta Mayor Maynard Jackson insisted in the 1970s. Congressman Charlie Rangel, who represented Harlem for decades, enthusiastically took up the mantle of a drug warrior during the crack epidemic in the 1980s. Eric Holder, a federal prosecutor and later the first black U.S. attorney general, championed pretextual car stops and searches to curb gun violence during the Clinton administration.
Even while focusing on black America’s presence at the start of mass incarceration, Forman does not detach it from its roots in racist policies. If anything, he uncovers deeper ones. Black leaders in the 1970s, for example, called for “a Marshall Plan for urban America” to combat entrenched poverty and despair. They demanded social justice, stronger policing, and greater economic opportunity—and received only stronger policing in response.
Bracketing this history are Forman’s own experiences as a public defender in Washington, D.C., where he witnessed black judges and prosecutors carry out the thousands of small decisions that helped build mass incarceration. He opens with the story of a local judge who reprimands a teenage defendant with what Forman describes as “the Martin Luther King speech”—a stern lecture on how one’s failings are an insult to the civil-rights struggle—before handing the young man an excessive prison sentence. “I grew to hate the Martin Luther King speech,” Forman writes.
From both these personal experiences and the history that helped shape them, Forman uncovers the black community’s role in waging wars on crime and drugs. I spoke with him about the book, the stories behind it, and their meaning for this unusual moment in the national conversation on American law and order. Our conversation has been edited for length and clarity.
Matt Ford: What surprised you most when you were writing and researching this book?
James Forman: Let me say two things: One is a general thing, and one is something that’s more specific. I’m very critical of the system of criminal justice that has been built and its devastating impact on black communities, and I’m very critical of people like the judge who I open the book with, that story. When I went back, and I did the research, and I read transcripts, and I read op-eds, and I interviewed people, I tried to put myself in the position of looking at the world through their eyes and in their context. One of the things that I developed was a greater sense of compassion for and empathy for people with whom I disagreed or made decisions that I thought now, in retrospect, were mistakes. And it’s interesting because as a public defender, I’m always asking that people be empathetic and people be compassionate toward my client. But I realized that I wasn’t particularly empathetic at all toward someone like the judge. And I think I developed some of that through the writing. My views didn’t change. I still think the system is destructive and damaging and a human-rights violation in many ways. But I have more compassion for the people who helped to build it and understanding where they were coming from.
The more specific answer was the chapter on black policing. A few things surprised me about it. One is for how long into the past the demand for more black police officers had been on the civil-rights agenda. I found Martin Luther King, Sr. saying in 1947 that the 105,000 Negroes of Atlanta needed and deserved one Negro officer. I didn’t know it went back that far. I also was surprised because I didn’t know that there were so many different rationales that had been asserted over time for why we needed more black officers. I was familiar with the “black police officers would be less brutal” rationale—that’s a little bit more of the modern-day one. But I didn’t know that people argued that black police officers will be more aggressive and attentive to crime because they’ll care about crime in black neighborhoods. I didn’t know that was an argument that dated back to the 1940s.
Another surprise finding for me was the disconnect between the civil-rights advocates who were pushing for black officers and the actual people who were going and taking the job. A lot of the people that were taking these jobs as black officers were taking them because they wanted a good job. They were having a different conversation with themselves than the civil-rights leadership that was demanding more black police was having. And I never appreciated that disconnect until I went back and noticed how even though there were 40 or 50 or 60 or more years of asking and demanding for black police, the officers themselves were so silent through that process. They weren’t the ones testifying. They weren’t the ones making speeches. They weren’t the ones writing op-eds. They were going to work. That tension is one of the things that I argue is kind of problematic about the way we think about black police now—because we have, I think, unreasonable expectations. I now realize we always have had those conflicting and unreasonable expectations of the difference that they would make. And I’ve now settled on the view that I never had before, which is that we should have more black police officers, but we should have them because blacks deserve our fair share of good municipal jobs—not because we think they’re going to change policing in any way.
Ford: A notable theme in the policing chapter was how class affected the black community’s views. How does that division shape the discourse around criminal-justice issues, then and now?
Forman: The class question goes back a long time. One argument that civil-rights advocates in Atlanta had in the 1930s and 1940s was that black officers would be able to more effectively distinguish between the law-abiding members of the community and those that weren’t. In essence, they were saying, “White people can’t tell us apart, but those of us that are upstanding, black officers will understand. They’ll respect those members of our community who deserve respect.” I’m sympathetic to that, of course, but then I would go further and say everybody deserves that respect. That was an early example of a class distinction becoming apparent.
Another one came later in the 1960s. I tell a story about Tilmon O’Bryant, who was the first African American lieutenant in the D.C. Metropolitan Police Department. He was also one of the first African American officers, period, to rise up through the ranks. And he overcame tremendous racism alongside Burrell Jefferson, his friend and ally who would go on to be the first black D.C. police chief. They overcame rank discrimination where they couldn’t get promoted because there was a quantitative assessment, a test that they had to take, matched with a qualitative assessment, a supervisor evaluation. And their white, racist supervisors wouldn’t give them rankings high enough that even with high test scores they could get promoted. Their response to that was to double down and triple down and study two and three times as hard. They set up a special training session in O’Bryant’s basement and they studied weekly for the test. Eventually, out of that first class of black officers, all but one scored so high that even with the discriminatory qualitative assessment, they had to be promoted.
As the March on Washington was preparing to descend on D.C., there was advocacy in the local community for more black officers, including in The Washington Afro-American. And O’Bryant came out in opposition to affirmative action. He said, “We don’t need that.” And the Afro-American, D.C.’s black newspaper, which was more of an elite institution than O’Bryant and his working-class background, they told him basically to remain in his place, that he should “stick to policing, not to civil-rights work.” Here they are, the African American elite, through the leading black newspaper, telling this barrier-breaking, path-breaking, working-class African American officer that he should know his place. And that’s the kind of subtle but real class differences that start to appear.
When we move to present day, what we see is a reality where an African American who dropped out of high school is 10 times more likely to go to prison than an African American man who’s attended college. That’s a big difference, then, because the people who are making laws, passing laws, and implementing laws overwhelmingly went to college. And so even though there’s this concept of linked fate in black communities and even though family bonds mean that lots of members of the African American middle class have somebody in their family who’s been caught up in the prison system, it still affects you differently.
There’s one more way in which I think class works its way into our politics of criminal justice: not mass incarceration, but racial profiling in the 1990s. Racial profiling was really the big criminal-justice, racial-justice issue. And the reason I think that racial profiling came to our attention is that it’s an issue that cuts across class lines. It doesn’t matter how much money you have, it doesn’t matter how many degrees you have—if your skin is dark enough to be identifiably black, then you run the risk of being racially profiled. So that issue comes to the attention of the civil-rights establishment almost two decades before mass incarceration does. And the reason, I think, is class.
Ford: I got kind of the sense of déjà vu reading some of these stories you have in here, because it seems like we’re having some of these same debates over and over again—on gun violence, on marijuana legalization, on the criminal-justice system’s interaction with both of those issues, on racism’s impact on them. Are we?
Forman: I think that we are. I think that the conditions that lead to the debate have remained similar if not the same, and then I think the debates remain similar if not the same. The historical context changes, our language changes, some of our understanding of the issues changes, but the issues themselves—issues of crime, issues of police brutality, issues of underenforcement—don’t. Chapter Two is called “Black Lives Matter,” so I’m self-consciously trying to make the point there that something we think of as a 2014 or 2015 development is something that’s been around for 50 years.
Ford: There’s also kind of a sense of tragedy, especially in the early chapters of the book, where you can see the thought processes going into these decisions, but we already know from modern experience where some of these paths will lead.
Forman: Well, yeah. I mean, I wanted to cry sometimes when I’d read the debates surrounding marijuana decriminalization in 1975, because I saw people like African American ministers who came out against decriminalization and people like Doug Moore. Moore was a Washington, D.C. city council member, a black nationalist, a race man, and a minister with a deep, deep love for the black community. In many ways, he organized his life around fighting for black people, fighting for black youth, fighting for disenfranchised black youth. I mean, the man was endorsed by a coalition of prisoners. This was someone who cared about those that society has given up on.
And his love for black community, combined with his not knowing what was to come, combined with his fear of drug addiction and drug use and his distrust of white liberal allies who were proposing decriminalization—all of those come together and lead him to conclude that the harms of marijuana use were greater than the harms of marijuana criminalization. And he won the debate. It was a close debate, but he won the debate. And when I look now and I think about how much damage marijuana criminalization has done to black communities, I think that somebody like that, if he knew what was to come later, he surely would have done something different. That’s, for me, the tragic element.
Ford: Another aspect that stood out to me was the role black-on-black crime played in these debates. These days we always hear it as a lazy retort when people talk about police shootings, but you highlight a greater role for it in the civil-rights era. How big of an influence was it?
Forman: It was huge. First of all, black commentators created the term “black-on-black crime.” A whole Ebony magazine in 1979 was devoted to the term. The first post-Jim Crow generation of black elected officials came into office, and they were bound and determined to make black lives matter. They wanted to protect black people who they knew had never been protected. They came out of a world—this would’ve been true in the North, too, but it was especially true in the South—where you didn’t bother to call the police for a crime in the black community because they weren’t going to come, and if they did come they were just going to make matters worse. Racist Southern sheriffs that had been infiltrated by the Klan considered a black death just another dead black person—and they didn’t use the term “black person.” And so these black elected officials come into power and they want to remedy that. They are deeply motivated by a desire to protect black lives, which they saw and understood as under threat principally from other black people.
And that’s why one of the arguments in the book that’s so important for me to highlight is—I just think it’s a 239-page rebuttal to the idea that black people only care about crime and abuse when it’s at the hands of the police officers. No, no, no. You see page after page of deep and dripping and profound concern for the protection of black lives, regardless of who puts them under threat—whether it be the police or whether it be the robber on the street.
Ford: How does that kind of shape our understanding of how mass incarceration arose? We think of it primarily as this sort of abstract force that came from on high, but you make the really good point that it’s kind of a brick-by-brick thing. Does this kind of history change how we should view the origins of mass incarceration?
Forman: I think it requires us to supplement how we’ve come to view the origins. I see a lot of power and persuasive force in the traditional model that focuses first and foremost on how kind of race-baiting politicians used race to cynically win votes, and how our relative indifference to black suffering at the national level is part of what’s blinded people to the pain and the misery that is mass incarceration. I lay what I’m doing alongside those. I think we have failed to focus on all of these little tiny decisions. When you stack them up and you add them up across time and across the country, and when you add them up throughout the criminal-justice system from police on the one end, through prosecutors and judges and legislatures and probation and parole officers at the other end of the process—when you look at all of these actors over time and over space and across the country, if everyone only becomes somewhat more punitive, but everyone does it together and everyone does it for decades, you get mass incarceration.
I do think that’s a crucial part of the story, and I don’t think it’s one that has gotten enough attention. Ronald Reagan and Richard Nixon and the War on Drugs are the kind of natural hinge points for the story, and they’re important. But they’re not the only things that are important. It’s harder to see some of these smaller decisions. One of the ones I draw out—that’s a classic example of something so small that you wouldn’t even notice it—is Dave Clark, who was a marijuana decriminalizer and a civil-rights activist. He becomes the D.C. city-council head and he gets deluged with letters from constituents asking him, “Hey, there’s drug dealers on my corner, do something about it. There’s drug sales in my neighborhood, do something about it. There’s addicts that are strung out in front of my place of business, do something about it.” And he forwards those letters to a D.C. agency, and the head of the agency writes back to him, and he forwards the response back to the constituent and says, “Look, I did something about the problem. You wrote to me and I took action.”
But he always writes to the police chief. He never writes to a department for drug rehabilitation. He never writes to the department of mental health. This is somebody who’s no drug warrior, but it doesn’t even cross his mind that there would be a non-law-enforcement option to the problem of addiction and the drug trade. So part of the story is lack of imagination. We’ve become, as a nation, trapped in a way of thinking about these problems, and it’s infected everybody, even the good people.
It’s those kinds of small steps that I want us all to confront. That means we’re all going to have to confront it as a way of getting out of this mess. Most people reading this interview have a job and work somewhere. What are your employer’s HR policies? What do they say about the ability to get hired if you have a criminal record? If you’re a student or a professor or an administrator at a university, what are your policies toward admission? What barriers do you impose for people to become admitted to your school based on criminal records? What signals do you send to discourage people by suggesting that if they have a criminal record they won’t be successful in the application process? I want everybody in the country to think about their sphere of influence—because it was everybody kind of acting together, sometimes unknowingly, that helped to create the problem, and I see that as how we’re going to have to unwind it.
Ford: What does this history tell us about the future of reform? I think you pretty much just answered that, but to clarify: It’s going to require not just some sort of legislation, but some sort of collective response?
Forman: That is correct. We definitely need legislation. When I’m talking about kind of the small steps, some of those steps are legislative. A lot of times, someone will propose something, whether it be bail reform or juvenile-justice reform or you name it, and by itself it doesn’t look like it is ever sufficient to respond to this problem of mass incarceration. It can be demoralizing, because the problem is so big, and then you look at this particular legislative response and you think, “Well, that’s not going to solve the problem.” And it’s not. But we have to do it. And we have to do it times a thousand because that’s how we built it. There was no moment when America said, “Hey, do we want to become the world’s largest jailer?” We never took an up-or-down vote. That’s not how it was built. It was built with all these tiny little legislative pieces and in the private arena. We’re going to have to unwind it the same way. Some of them are going to look very small by themselves, but collectively they’ll be powerful.
And yes, it’s going to also have to be all of us in our personal spheres of influence. We’re not only voters and citizens and activists, right, we’re also employers and students, church members or members of religious institutions. What if every religious institution decided that it was going to take three people a year and commit to helping them reenter society? Reentry is one of the biggest problems we have. If every religious institution in America took three people coming back from a prison or jail this year, every one of them coming back would have a place where people are saying, “We are going to care for you. We’re gonna help you get housing. We’re gonna help you get a driver’s license. We’re gonna help you get reconnected to your family and your children.” There are 300,000 religious institutions in America and there are about 900,000 people coming back from prisons and jails every year. So we just need to each do three. It’s that kind of collective response that I’m thinking of.
Ford: Are you optimistic or pessimistic about Americans’ ability to confront this issue?
Forman: It depends on the day. I am fundamentally an optimistic person. And I’m optimistic, in part, because of the amount of interest that I see in this issue. I teach a class on race and the criminal-justice system at Yale Law School. Last year, I taught it inside a prison, so it was 10 law students and 10 incarcerated students studying together. I only had ten slots in the class [for Yale students], and I had six times as many students on the waitlist. And I see that when I go and I lecture and I talk to professors at other schools. College students and law students and high-school students are extremely motivated around this issue. Many of them have been brought to it by reading The New Jim Crow. Others have been brought to it by reading Bryan Stevenson. Still others have been brought to it by reading Ta-Nehisi Coates. Still others have been brought to it by reading some of the hundreds of academics and activists who are less well-known than those three, but are speaking and publishing and advocating. I see this energy. This was not the case in the early 1990s when I became a public defender. Not at all. And that is the thing, fundamentally, that gives me the most optimism.
The second thing that gives me optimism is the enhanced and elevated role that we’re starting to give to people who have been incarcerated and their family members. For so long, those folks were at the margins. Nobody really gave them a voice. Folks were afraid to speak up, they were so stigmatized. “Who really wants to hear from me? I have a felony conviction. Do I really want to reveal my past?” These are the questions that people were asking. And in the past couple of years, that started to change. That idea of turning to those who are closest to the problem for solutions—I think that’s also a cause for optimism.