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James Forman, Jr. is a professor of law at Yale Law School and author of the 2018 Pulitzer Prize-winning book, Locking Up Our Own: Crime and Punishment in Black America, a detailed history of how well-meaning but misguided black civic leaders and elected officials unwittingly contributed to building the system of mass incarceration in America. He is a former public defender in the nation’s capital, where most of the book is focused, and also the son of James Forman, the famed civil rights leader and member of the Student Nonviolent Coordinating Committee.

We spoke by phone about the limitations of the debate around criminal justice reform, the uses of and alternatives to prison, and the misappropriated legacy of Martin Luther King, Jr. While the phrase “criminal justice system” may be a misnomer—as Chris Hayes argues in his book, A Colony in a Nation, there are many different systems operating in concert with one another—Forman and I discussed the unifying philosophies that have allowed the interlocking systems of criminal justice to become seemingly intractable parts of American culture and law.

—Mychal Denzel Smith

Mychal Denzel Smith: The story you’re telling in Locking Up Our Own is about the roles played, over the past forty years or so, by black civic leaders and elected officials in the system of mass incarceration that most of us are horrified by today. You divide the book into two halves: “Origins” and “Consequences.” I’ve seen it suggested in some reviews that for the second half you could have added “unforeseen” or “unintended” to “consequences.” I’m curious how true that is—the idea that these consequences were unintended or unforeseen. You don’t completely blame these black civic leaders or elected officials for building mass incarceration. You’re very clear about the role that white supremacist systems played and the ways in which these black folks became pawns of that system, and also that many of them were interested in what you call an “all of the above” approach: a Marshall Plan for black communities that would provide jobs, education and housing. But there was also a strain of thought that it was the under-policing of black communities that helped lead to the high levels of crime in the Seventies and Eighties, which mass incarceration is a reaction to. I’m curious, given black communities’ experiences with police and prosecutors and prisons—was mass incarceration really an unforeseen consequence? Even if they were asking for greater investment in social programs, they also asked for more policing and longer, harsher prison sentences. That seems purposeful rather than unintended.

James Forman, Jr.: It’s a good question, and you are right that that is one of the things I wrestled the most with in writing the book. Let me step back. The first thing I should say is, to me, the most interesting question of the book is not that black officials in some ways bought into the same logic and mentality that the nation had been pursuing over the last fifty years. To me what the book is really about is: Why? Not everyone has the same motivations. The “why” gets at the question you’re asking. Because in some cases, I think it was fairly foreseen. As I’m sure you know, there’s a strain of respectability politics, which has been written about at length, and which you see appearing at different moments in the book with different figures—people who take the attitude “Yeah, I’m sorry that this is going to happen to you, but this is the cost. You’re just going to have to take it because we have to save the community, and if that means we need to cut off an arm, then so be it.” But I do think that there were other people and other moments where maybe the right way of thinking about it is that the scale and the scope weren’t fully foreseen or predicted. One example would be the debate about marijuana decriminalization in 1975 in Washington, D.C. You have Doug Moore, the black-nationalist pastor and self-proclaimed spokesperson for the black poor in D.C., arguing against marijuana decriminalization, in the face of evidence that there was disparate enforcement of the law, even back then. So black people were more likely to be arrested for marijuana possession than whites—and he knew that. Yet, he still opposed decriminalization, and he did it because he feared heroin, and marijuana as a gateway to heroin.

At that moment, where Moore stood in 1975, the risk of addiction outweighed the risks of criminalization. But here’s what was unforeseen for him: he didn’t realize in 1975 that in the decades to follow, Congress and local lawmakers would pass laws so that a marijuana conviction would make you ineligible for public housing, ineligible for student loans and ineligible for employment. So he knew that black people were going to be disparately targeted by the failure to decriminalize, but he didn’t understand the extent of the damage that decision would do to the black community.

Or consider Eric Holder in the Nineties with Operation Ceasefire, which I talk about in chapter six of the book. Eric Holder knows that when he endorses this regime of pretext policing, basically stop-and-frisk of cars—we’re going to pull over every car that’s suspicious to us and we’re going to search it for guns—he knows that black people are going to be disproportionately charged, and he says that that’s because black people in this city disproportionately have the guns. So he makes it seem like the disparity is going to be on those with the guns. But then you have stories like Sandra Dozier’s, stories of black citizens who don’t have any guns at all—but once you start dragnet-style policing, you’re going to catch not just guns, you’re going to catch minor stuff, like marijuana in her case. That’s then going to be the cause for somebody to lose their job. Did Eric Holder know that would happen? Sure, he had to know that it would happen somewhat, but did he know the extent of it? I’m not sure.

So I guess the ambiguity in my answer to you and the ambiguity in the book on this point is intentional. That’s to say that I think this is a very hard question. I think some people were more aware than others, I think most people didn’t understand the full scope and extent. I should also be clear—the history in the book is mainly about the side that won and it focuses more on the people who ended up arguing for these policies, but there’s dissent along the way. These votes are close!

MS: You write about an encounter you had as a public defender, talking to a judge who refused one of your client’s drug rehabilitation because they said she had failed that before. In response, you said to him: “Our system never treated the failure of prison as a reason not to try more prisons.” From your perspective—your history, your understanding, your educational background—can you tell me what you think is the driving force for using prison as part of the justice system? If we do recognize that it has failed, what keeps us coming back to it?

JF: I guess we can talk about theories of punishment—people talk about incapacitation, people talk about deterrence. But fundamentally those would only explain, in my mind, a part of why we use prisons to the extent that we do, because there are so many instances that we can point to where prison isn’t reasonably justified by any theory of punishment. The case that you’re talking about from the book is a good example of that, because the woman that I was representing there in that instance, Tasha Willis, wasn’t a threat to anybody. Nobody thought that putting her in prison again was going to deter her. She was an addict, and nobody disagreed with that. And so the only way that she would end up in prison is not by a theory of punishment, but rather by something else, which is a criminal system in which everybody involved in its operation has just absorbed the logic of the inevitability of prisons. The judge had bought into a mentality—had incarcerated so many other people, had become desensitized to the use of prisons—because it just happens on a daily basis. This is one of those things that people don’t talk enough about, but everyone in the system becomes desensitized to prisons. If you put people in prison for twenty or thirty years, well, then putting someone away for six months almost feels like nothing. You know, it feels like a slap on the wrist; it feels minor. It’s like air: it’s just part of the system and what the system does—and not just part, but the major part. And the choice is: How long? That’s the conversation. Five years or ten years? Two years or eight years? The question is not whether or not to incarcerate someone, and it’s not “Why we are we doing this to begin with?” Prison in America isn’t really even defended on its own terms, it has simply become an inevitability.

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If you like this interview, you might also be interested in other articles from
our “What is prison for?” symposium, such as  “Socializing Punishment
by Benjamin Ewing
 and “Go Directly to Jail” by Kaya Naomi Williams.

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MS: What do we believe we’re achieving when we use prisons as the sole mechanism for dealing with harm?

JF: You’d probably have to put that question to somebody who believes more firmly in prisons than I do, or somebody who uses prison as a solution on a daily basis. My job, when I was in the criminal system, was to fight against prison, and so I don’t know, because I never believed in it. But I think that what people would say is that, in some cases, “This is a person who right now is dangerous. We don’t have another choice. Society hasn’t created another option.” Another category is judges or prosecutors who say, “This victim has suffered, and there has to be an acknowledgement of the pain this person has caused, and right now, the only way we have for people to accept their responsibility is through a period of incarceration.” I think if you asked people—really pressed them on the question “Why do we have to do this?”—those would be the two kinds of answers you would get.

MS: So what is the counter to that?

JF: Most victims will say, “If my choice is between nothing and prison, then yeah, I want the person to go to prison.” But we could give victims a wider range of options. We could set up a system that is more restorative in its approach, that involves the person who committed the harm apologizing, taking accountability for the loss and the pain and the suffering that they’ve caused, centering the victim’s perspective and allowing the victim to speak and to share what has happened to them and how that has impacted them. We could bring in members of the community—a lot of restorative-justice circles are oriented in this direction—and have members of the community talk about how these actions have harmed them, as well as what resources are available to help. Then, both for the offender and the victim, you start to create a circle in which there’s real accountability and there’s a real apology and there’s real humanity. There’s polling data from groups like the Alliance for Safety and Justice showing that if you present this range of options to victims, they overwhelmingly choose these alternatives over prisons. In our society, we’ve taught people that the only option, the only way you get justice, is through prison. And once we’ve done that, that’s what people demand.

Now, the other argument for prisons which I mentioned is the incapacitation argument: “This person is dangerous and they have to be kept apart from the broader public.” That is a much harder case, in my opinion, to respond to, because in that case I don’t know what to do instead. I can have a conversation with you about how what we do now is ineffective. I can say that our prison sentences should be shorter, that our prisons should be more humane, they should be less prison-like, they should be full of education, they should be full of opportunity for religious exploration, opportunities for drug treatment and mental health treatment… I have lots of things that I can say, but for that individual who’s right now dangerous, I don’t have another suggestion besides prison—except I would radically alter what that prison looks like.

MS: I guess for me, that comes down to a semantic debate, in a way.

JF: It might be. I was going to use the word “semantic” in my response, so I’m really curious to hear what you have to say.

MS: What you’re describing to me is undercutting the logic of what the prison is, by saying, “What we want to do within the structure of a prison is offer mental-health benefits and education and real steps towards rehabilitation.” I think that then what we’re describing is not a prison, especially if we’re doing away with the dehumanizing aspects of locking people away in cages. If it is a holding facility that offers these levels of services that is aimed at something different than what the prison is currently set up to foster, then is it itself a prison?

JF: That’s fair. I’m glad you made that point, because I was thinking about it and there is a way in which it could be semantic. I care way more about the content of the experience than I do about the label. So you may be right that having redefined it in the way that you and I just have collectively, it’s certainly not prison as we know it in this country. The reason why I’m reluctant to agree is that I feel like it’s an easy out for me to say “that’s not prison.” Because even with the thing we’re talking about—you called it a “holding facility”—you are not permitted to leave. You are going to be held in that space by state authority, including under the threat of violence. And as long as that’s true, I don’t know what we call it, but it’s definitely not freedom, and it definitely won’t feel like freedom for the person’s who’s there. And so I don’t want us to kid ourselves about what we’re doing. If we’re not going to use the word “prison,” I do want to have a term that fairly signals what we’re doing, which is holding a person against their will for a period of time that has been determined by authority of law.

MS: This is the question most often put to prison abolitionists: What do you do with the most violent offenders? The rhetoric right now around criminal justice reform has been leaning more towards sympathy for nonviolent drug offenders. But there is not the same level of movement towards saying that violent offenders could be dealt with differently. And so we’re not thinking through alternatives, because the only thing we have is the prison. At the end of Locking Up Our Own, you write a story of redemption, in a case you had with a young man who committed a robbery—

JF: An armed robbery.

MS: An armed robbery, and wrote a letter of apology to his victim, and the victim says, “You want me to forgive this young man. I don’t know if I can, but I will try.” Here’s a moment where we can imagine something different, and eventually the judge also sort of agrees with you and a prison sentence is averted. But I think about this story and, because the people you’re writing about here are black people, I think about how little compassion and forgiveness is afforded to black offenders—and then contrasting that with a public rush to forgive and show compassion to white men who commit horrific acts of violence.

Think of someone like Dylann Roof. He killed nine members of this church, and there was a wondering out loud about whether or not the families would be willing to forgive him. I’m thinking about that in terms of a lack of compassion that black offenders are allowed, and then knowing that that is available, that the public can offer it when it is a white male offender who commits a violent act. And my worry is that what will be called for is not more compassion or forgiveness for black offenders, but a call for more harshness for everyone else. Essentially, the question is: How do we make room for the ideas of forgiveness and compassion within a justice system that has these racist disparities in the ways in which offenders have been treated?

JF: In some ways this ties back to where we ended with the last question. I personally don’t struggle so much with the question you said gets posed to abolitionists. It’s not that I don’t think it’s an important question, but I guess I struggle with a related question: What do we do about the categories of cases that are especially triggering and meaningful for those of us who advocate for the disempowered?

And here I’m thinking about—you mentioned Dylann Roof—but all the sexual violence cases, whether it’s Dr. Nassar in Michigan, or Bill Cosby, or of course all of the police-violence and police-shooting cases. Or the hate crimes that don’t rise to the Dylann Roof level, but whether it’s the cross burnings or the church vandalism… there’s a big category of cases that, at least if I look at my social-media feed, when they come up, people—including people who are typically critical of the harsh criminal-justice response—say “Lock ’em up!” I’ve lost count of people who have talked about locking up Trump and his associates—I’m talking about my friends, who are otherwise posting sympathetic articles about abolitionism. And you really can’t have it both ways, but it’s incredibly hard to resist that impulse, when the category of harm or category of offender is a privileged individual harming a historically oppressed group. And I see it all the time in myself. Times when I have to catch myself and ask myself the question: What do I think should happen to this person based on what I’ve said and written and thought about in the past?

So I think you’re exactly right. We have to make sure that our critique of prison as a solution is one in which we remember when the people that are committing the harms are people from more powerful groups, and when the people who are being harmed are the historically disenfranchised. That’s why I think what’s most important right now are the kinds of organizations that are trying to build alternative criminal-justice models in communities of color and in poor and working-class communities, which historically haven’t been met with compassion, as you mentioned, and haven’t had that empathy. So an organization like Common Justice in Brooklyn, which is starting with a restorative-justice model in a heavily black and Latino community in New York City, and is saying, “Let’s bring in these aspects of compassion and forgiveness and mercy and centering victims, and give victims options other than prison as the solution.” Let’s do restorative justice and accountability circles, including sessions for people that have committed violent offenses, because I think that’s the place that we’re going to need to go in order to build up this alternative vision of justice. That’s where the work is going to have to start, because otherwise, exactly the fear that you articulated will happen. Otherwise, we’ll keep on doing what we’ve always done in those communities, and we’ll just ratchet up punishment in wealthier pockets or for crimes perpetrated against more privileged individuals.

MS: You mentioned the chapter of the book where you talk about Eric Holder, a chapter called “What Would Martin Luther King, Jr. Say?” This is something, in recent years especially, that has been a pet peeve of mine. We know the ways that King has been appropriated by the right. His rhetoric has been whitewashed, and this image of this loving, peaceful character has been rendered to us in a way that’s supposed to make us more docile, more accepting of oppressive measures, which we’re supposed to meet with love and kindness and forgiveness. But his legacy and image have also been used in a way that justifies a lot of the things that you’re talking about in the book. The legacy of King as someone of moral clarity has been used to chastise black youth about drug use and gang violence, as opposed to talking about root causes and structural changes as ways to ameliorate these social conditions.

That mentality is still with us, even as this change of political reality is taking place. I’m thinking of how New York gubernatorial candidate Cynthia Nixon, in calling for the legalization of marijuana, also said that a piece of reparations could be to allow people most affected by the drug war to be first in line for licenses in the legal marijuana trade. Reverend Al Sharpton and other black civic leaders responded by saying that that’s not reparations, and that’s not what we should be fighting for, for black folks to be able to sell drugs. We need jobs and we need schools. And it’s not that they’re wrong about the jobs and the schools and all of that, but there’s a piece of it that still feels like we’re determining black futures based on a sense of a moral past, as opposed to looking at a system that has been structured toward our failure.

JF: That’s a nice way of putting it. One great strength of black politics has been our ability to appeal to a history, to a tradition of struggle, to a tradition of overcoming against the odds, to a tradition of resistance to oppression. All of the things we hear from our parents and from our churches, of slaves teaching themselves to read by candlelight, knowing that if the master comes by that might lead them to be whipped. I remember being told this as an inspiration—you come from a people who did this! What can’t you do? And I loved that. I love it. I truly love it. I didn’t mind it as a kid—I mean, sometimes I got annoyed at being told I had to do extra. But you know, I always, always connected to that. And at the same time, there’s a way in which, with just one turn of the dial, just a slight nudge, that can become problematic. The place where you see it becoming problematic is exactly as you suggested, when it starts to push us against a structural understanding of oppression.

To me, it fundamentally comes down to confusing private spaces with public policy. The example I just gave, that’s our parents in the home, or the barbershop, or even the church (which starts to veer into the public, but let’s call it private for now). Those exhortations are appropriate in those spaces, because those are the moments in which we’re trying to inspire our children, our peers, one another, ourselves. We’re trying to inspire ourselves to be like the people in Montgomery, Alabama, who chose to walk to work for a year to boycott segregated buses. A year! I’m telling myself, “Wait, I can’t go to the march on Sunday? They walked for a year, and I’m too busy?” So that’s all right, and that’s where it should be. The problem that you identified is that it has no place at the city-council hearing, because at the city-council hearing or the state legislature, the issue of whether they marched for a year in Montgomery is irrelevant. The issue there is: what is the legal structure, and should they have had to march—and the answer is no. So, to me, that’s the point of what Cynthia Nixon said. Of course, we should have not just legalization or decriminalization, but also economic subsidies for people who had been over-criminalized and now are being excluded from the legal market. Of course, there should be an intentional government effort to make sure those folks get economic opportunity in that legal market. Well, of course that’s true, and whether King and the Montgomery protesters were moral people has nothing to do with it. It is a distraction. It undermines a point that has its own moral authority, which is that we deserve laws and structures that don’t require us to be superhuman.

 

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This interview appears in issue 17 of The Point,
as part of our “What is prison for?” symposium.
Subscribe today to read this and more in print.

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