It is well documented how mass incarceration reinforces a racial caste system in America. But James Forman Jr., a longtime public defender in Washington, D.C., and now a Yale professor, points out that many African-American leaders supported the policies that led to mass incarceration. His book, “Locking Up Our Own,” explores why and how they supported policies that ultimately harmed the Black community. Forman takes us back to the late 1970s and early 1980s, when first heroin and then crack were epidemic among young Black people, along with associated theft, muggings and murder. Many civil rights leaders saw drugs as destroying the gains from civil rights. At the same time, Black majority cities such as the District of Columbia were for the first time in control of their own law enforcement.
Black leaders who called for harsh penalties on drug dealers and users also advocated for better jobs, better schools and better housing. The only thing they got was more policing. It took a decade or more for them to realize the mistake that they had made.
Forman met with Real Change during a recent visit to Seattle to discuss his new book.
Why did you decide to become a public defender?
I wanted to do civil rights work. At the time, the criminal justice system wasn’t understood as part of the domain of civil rights organizations. The NAACP Legal Defense Fund had a unit on the death penalty, but not on general criminal justice. I worked in their death penalty unit.
I saw cases where lawyers that had not prepared their defense, had not called relevant witnesses to provide mitigation, hadn’t cross-examined people. There was the Rodney King beating and the subsequent acquittal. The United States had passed Russia and South Africa to become the world’s largest jailer. One in three young Black men was under criminal justice supervision. I was drawn into the idea that the civil rights issue of my generation was the criminal justice system.
How did you feel about your clients?
You stand next to somebody who the systems have failed, all systems, foster care, public housing, services for veterans. Many of our clients have fathers that served in Vietnam and didn’t get the treatment that they deserved. As a public defender, you have the opportunity to provide the best possible representation to somebody who’s been denied the best. It’s an honor to have that obligation and that opportunity.
You also founded a school for your juvenile clients.
My juvenile clients kept telling me “I want a job and I want to go to a good school.” So, along with a friend, I started what was first an after-school tutoring and job-training program.
Many of the measures that contributed to mass incarceration were strongly supported by the Black community. How do you account for that?
One of my first cases in the book is “Brandon” — 15 years old, pled guilty to possession of a gun and $15 worth of marijuana. I argued for probation. I had a letter from his coach and his teachers. His mom and grandmother were ready to provide him supervision.
Brandon was African-American. The prosecutor was African-American. She was asking for him to go to Oak Hill, a juvenile jail in D.C. that you should call a dungeon. It had no functioning school, no job-training program, no drug treatment program, no mental health programs.
The judge is African-American. He looks at Brandon and says:
“Mr. Forman has been telling me that you had a tough life and deserve a second chance. Let me tell you about ‘tough.’ Let me tell you about Jim Crow. Let me tell you about segregation,” he told Brandon. Then he said, “People fought, marched and died for you to be free. Dr. King didn’t die for you to be running and gunning and thugging and carrying on. Actions have consequences, and your consequence is Oak Hill.”
The judge had used the same history that brought me to the courtroom. He flipped it. It was an argument for locking this kid up. It wasn’t just the judge and the prosecutor, [it was] the city council that passed the laws, a majority Black city council. The police force was majority Black. The police chief was Black. All the guards that I met in Oak Hill were African-American.
We had this dramatic history of racism in the criminal justice system, books like “The New Jim Crow.” Alongside those stories, which I very much agree with, there was something else, people like this judge. I wanted to write a book that told their story in a way that was nuanced, empathetic, that tried to explain their choices, while keeping my critical position of, these were mistakes, this wasn’t the right way to go.
Racism doesn’t have to be conscious or intentional to operate.
That’s exactly right.
And when people are in the middle of a crime wave, they tend to say, “Let’s just lock them up.”
When people get desperate, they get fearful and angry. This country has a long tradition of harsh justice. It’s tempting to focus on the executive branch: Nixon declared the war on drugs, and Ronald Reagan declared a war on crack. But a huge part of the story are the micro-acts, the small steps that individuals make.
I write about a city council member, one of the White guys. He supported marijuana legalization. He gets letters complaining about junkies “in front of my doorstep.” He sends them off to a government agency. But what’s the agency? The department of mental health? Addiction services? Drug rehabilitation? No, the police chief. This is the failure of imagination. Those choices across 50 states, the federal government, D.C., 3,000 counties and 50 years add up to the system that we have now.
Do you see social class as playing a part?
I do. People ask me about the “Our” in the title. “Who’s ‘Our Own?’” The reason I was surprised in that courtroom is that in Black America there’s this sense of linked fate. When you suffer harm on the basis of race, I understand this as a harm that’s affecting me. So it’s counterintuitive when a Black judge is locking this kid up and invoking King to do it.
But the judge is from a different social class. A Black man today who drops out of high school is 10 times more likely to go to prison than a Black man who finishes college. The people making the laws overwhelmingly have finished college. The people that go to prison, overwhelmingly, have dropped out of high school.
Another way to think about “Our” is America locking up “Our Own.” Forty percent of the people in prison in this country are White. They’re overwhelmingly poor. They disproportionately have mental health issues that have not been treated and continue to not be treated.
You talk about how pretextual traffic stops aimed at gun violence disproportionately affected Blacks in D.C.
Eric Holder [as chief prosecutor in D.C.] had gone on radio in multiple interviews and detailed the strategy. The whole traffic stop is just a pretext. If I follow anybody for 30 seconds, I can find a traffic violation: going 26 miles per hour in a 25 zone, stopping too long at a stop sign, stopping not long enough.
The theory was guns were everywhere. The homicide rate had tripled in the ’60s, tripled again in the late ’80s. [Holder] does this pretext stop regime: “We’re targeting every part of the city except for Ward 2,” the White part of D.C. “We’re going to focus on places that gun violence is highest.”
One of the people in the book, Sandra Dozier, was pulled over on a pretext stop. They didn’t find guns. They found $20 worth of marijuana. They didn’t hold her overnight, because she said, “I have a job at FedEx.” The officers gave her a notice to appear a week later. When she got there, the prosecutors dismissed the case.
You could say that the criminal justice system acted fairly and with mercy. She didn’t miss work and the case was dismissed. But if you were on probationary status, they [FedEx] treated any arrest, whether or not there was a conviction, as a violation. It doesn’t seem super-malicious. But there’s [also] this dragnet that results in Black citizens getting picked up on minor things. All the White kids in Northwest, they got to drive around without ever getting pulled over. Of course they had drugs. Drug use is equally distributed across American society.
So a policy of going after guns ...
Leads to her losing her job. It almost perfectly illustrates the grotesque injustice, unintentional and unintended, of our criminal justice policies when they’re matched by hyperaggressive punitiveness on the part of employers.
I got an email from a guy who applied for benefits, and it came up that he had a record — he says for marijuana — from 1970. It comes up as “unspecified narcotics offense.” That sounds terrible. It is just an arrest. But he’s struggling to clear his record. He’s got to get records showing that it was marijuana and it was dismissed. The technology is another part. Nobody knew when they were setting these systems up that at the press of a button any employer could pull up your record from 47 years ago.
So what do we do now?
The system was built not in one fell swoop. If all of us get somewhat more punitive, and we all do it for 50 years, we get mass incarceration. The solution is that same series of micro-acts, each of us looking at our individual spheres of control, asking not “What can somebody else do to fix this problem?” but “What can I do?”
There’s been a focus on electing progressive prosecutors. The polls just closed an hour ago in Philadelphia. A very reform-oriented guy, a lifetime civil rights attorney ran for prosecutor [He won]. In November, a whole slew of people ran for prosecutor on platforms of “We’re locking up too many people;” “the War on Drugs has caused a lot of damage;” “my predecessor participated in wrongful convictions and won’t admit it.” They won — in Chicago, Alabama, Florida, Texas, Colorado.
People say, “We had this criminal justice reform moment, but now Trump and Sessions arrived.” Their power is much less than we give them credit for. Eighty-eight percent of the prisoners in this country are state, county and local. Local prosecutors and your state legislature and your city council built mass incarceration, and that’s who’s going to unbuild it.
The other thing is, who’s the lawyer opposing the prosecutor? Two percent of the funding that goes to our criminal system goes to indigent defense. People have crushing caseloads. So the other thing we have to do is fund indigent defense better.
There’s also what we can do as individual citizens. Most of us are employees. Or employers. What’s the policy on hiring people with criminal records? There’s a huge range from first question on the application [being], “Have you ever been arrested” — people don’t even fill out the application once they see that — to “all right, we’re going deep into the application process, give you a chance, and then I’m going to learn this additional fact, if it’s true, and I can factor that in to everything else.”
When we started the school, we hired this amazing guy, and on day three he said he had been convicted of armed robbery. If he had put that on an application, we’re tossing it. But it was this person we had spent three days with who was funny and inspiring and great with kids. It was still a hard call, but he turned out to be amazing.
People like Nixon and Reagan get a special place in the pantheon of wrongness. But we all participated, either actively or by allowing it in our names and with our tax dollars. We all have both an opportunity and an obligation to unbuild it.
Read the full May 31 issue.
Director's Corner: The vital role of Black Jurors Update
Book Review: "Evicted: Poverty and Profit in the American City"
Remembering Michael Layton Taylor