Locking Up Our Own: An Interview with Professor James Forman Jr.

By Amanda Knox with Christopher Robinson

In Locking Up Our Own: Crime and Punishment in Black America, Professor James Forman Jr. of Yale Law School chronicles the history of our country’s war on crime from the perspective of the first substantial cohort of black mayors, judges, and police chiefs who took office in the 1970s and ‘80s amid a surge in crime and drug addiction, and how, in response, they ended up pushing for tough-on-crime policies that would have unforeseen consequences for the impoverished and disenfranchised black communities they were trying to protect.

Amanda Knox  

What assumptions do we make about who commits crime, and why, and what should we do to people who commit crimes? Where does this prevailing narrative come from?

James Forman Jr.

One prevailing narrative is that people commit crimes because it’s a choice. They have all the opportunities that they might have, and they can choose a, b, and c, and they decide, “I’m gonna commit a crime.” And that, of course, doesn’t factor in the way in which addiction and mental illness and trauma that hasn’t been treated and poverty conspires to limit people’s life chances and they might feel pushed or compelled to commit a crime. Another prevailing narrative is the notion that there’s something about black people that makes them more criminally minded. That’s a narrative that was created during the slave period when whites needed to justify controlling black people. These are a criminal group and unless they are controlled, unless they are regulated, unless they are held in bondage or are subjected to a expansive set of laws that criminalize what would be daily activity, like loitering or vagrancy, unless we have that regime in place, these people are just going to harm us.” There’s a prevailing narrative that suggests that prison helps deter people from committing crime, and that the best way to hold people accountable is to confine them in cages. So, really, from the beginning to the end of the system, we have a set of narratives that increasingly is being challenged. But for most of the country’s history, this prison building and crime control experiment that has produced mass incarceration, went unchallenged. 

Amanda Knox 

What is the true story of crime in the U.S.?

James Forman Jr. 

The true story is complicated. You know, I teach in prison. I teach a class called Inside Out: Issues In Criminal Justice, which is part of a national program in which professors bring the class that they teach at their home institution inside a prison and the class is made up of half students who are incarcerated and half students from your home institution. So every semester, I teach either in a men’s prison or a women’s prison in the state of Connecticut, and one of the great learnings in that class is how even law students, people who should know something about what prisons are like, don’t in most cases. Very rarely has one of my students from Yale ever been inside of a prison. And one of the first men who took Inside Out class said something that has since become something of a mantra for the organization. He said, “These walls are meant not just to keep me in, but to keep you out.” Keeping other people out is part of what is keeping people ignorant about the system. 

Amanda Knox  

In Locking Up Our Own, you make this compelling case that our mass incarceration system is not some secret plot by a few evil men in a room, but the result of a series of small decisions that are made over time by a lot of different people.

James Forman Jr.  

Yeah, absolutely. I should say up front that I don’t mean to suggest that there weren’t people with evil intentions who were doing things during this period of time. William Barr, who’s the current Attorney General, in the early 1990s, he wrote a white paper called The Case For More Incarceration. At the point at which he was writing that, the United States had recently passed Russia and South Africa to become the world’s largest jailer. We knew that the United States had one in four young African American men under criminal justice supervision. There were things that were known about the system at the time when he was expressly making the argument that we need yet more prisons. And now here we are, 30 years later, he’s the Attorney General, and he’s just continued in that same direction. So there are plenty of people, whether it’s Richard Nixon or Ronald Reagan, who deserve blame, and who I do not think I could fairly say they were acting out of good intentions for the black community in particular. Having said that, one of the things that I was trying to do in my book is add to the record. As an academic, I go into any conversation thinking that the truth is going to be complicated. I was writing against the backdrop of an impressive literature that had documented the role of people like Richard Nixon cynically exploiting crime as a way to talk about race. So that story is out there. And it’s important and it’s powerful and I endorse it. What I was trying to do is add to it. And so, to go to some of the other examples, there’s lots in my book, but let me just sort of give you one that I feel captures this dilemma really well. So in the early 1980s, in Washington, DC, heroin was all over the city. And the city council was getting deluged with letters from citizens saying, “They’re these addicts. They’re gathering on park benches and they’re hanging out in the alleys. There’s dirty syringes everywhere. You got to do something about it.” Now, these letters went to the chair of the D.C. City Council, a guy named David Clark. Now, David Clark is a progressive hero in the overall story of the last 30 or 40 years in terms of local politics. He was against the drug war, he fought for marijuana decriminalization in 1975 before it had the resonance nationally that it does now. He’s a good guy on a lot of these issues. And David Clark gets all of these letters. And what does he do? He forwards them to the head of the relevant government agency. But who does he forward them to? Remember, the letters are about addicts in public space. Well, he forwards them not to the Department of Mental Health Addiction Services. He sends them to the police chief. Because even David Clark, a truly good guy in this story, doesn’t have the imagination to think of this problem of addicts in public space as a problem that we should think of as outside the criminal system. And part of the story is funding. These other departments weren’t adequately funded. There’s a nine month waiting list for a space in a treatment center. They didn’t have somebody they could send out that afternoon to respond to those drug addicts on the corner. The only person who had that much resources and that ability was the police chief. So this is both a story about lacking a broader imagination, and also a story consistent with what we’ve been seeing in the national conversation since the murder of George Floyd, about which agencies do we invest in? Where are we spending our money? And there’s story after story like that. And the basic case that I make is that if we’re going to understand how we got this system, and how we’re going to dismantle it, we do have to look at those small choices, many of them made at the local level, and many of them made by well-intentioned people. 

Amanda Knox  

Why is it so counterintuitive to treat crime or addiction as a symptom of an unhealthy and unfair society as opposed to a moral failing?

James Forman Jr. 

Such an important question. The answer is complicated. It has lots of different factors, but just to tackle a couple. The first is the United States has long been punitive in how it deals with failing on the part of poor people and people of color. Compared to our peers, we have massively under-invested in the social safety network. We don’t have a tradition of saying to people that we’re going to meet your needs, we’re going to make sure that you have a home, we’re going to make sure that you have enough food to feed yourself and your children, we’re going to make sure that as a parent you have adequate childcare and you have adequate parental leave, we’re going to make sure that you have the ability to get to and from work with a robust system of public transportation. We don’t have any of that. We don’t have that tradition. If you don’t have that tradition, you have to come up with a kind of ideology to justify those choices. And the story that we’ve told ourselves is the story that “those people” aren’t deserving. And it’s so deep. It’s so deep, that even people who themselves are those people, even people who would themselves benefit from this additional investment, don’t think of themselves as the people who would benefit, and don’t support those programs. Part of that is that we don’t have a history of class consciousness in American society. Part of it is the religious traditions which have emphasized individual responsibility over collective responsibility. And then you add racism to the story. Just to take the last 50 years, the way the Republican Party ascended to power was by breaking up the Democratic coalition. The way the Republican Party has persuaded working class white voters to vote for it, despite the fact that its policy positions consistently put money in the hands of wealthy people and take it away from poor people, is by this cynical exploitation of race. When politicians say, “Don’t give money to those people,” in that sentence is people of color. 

Amanda Knox 

What do you think also about how the traditionally conservative authority has exploited the black community’s legitimate concerns about the drug epidemic and violence in their communities to justify conservative law-and-order policy positions?

James Forman Jr. 

I really want to get away from the term “law and order.” I also want to get away from the term “tough on crime.” I mean, President Trump really brilliantly and brashley shows why those terms have so little meaning. President Trump, on the same day, will tweet about “LAW AND ORDER” in all caps, referring to violence in a majority black city. On the same day that he does that, he will take a political ally of his, who was duly prosecuted, convicted by a jury of his peers, and sentenced by a judge, and he will pardon them. He will exculpate them entirely and he’ll do it without batting an eye. How can you say you are “law and order” when you are blatantly excusing criminality? Well, Attorney General Barr was asked that question, and he had this convoluted thing about “We are not so concerned about esoteric crimes. We’re really focused on the meat and potatoes crime.” Well, first of all, the Department of Justice doesn’t get to decide what is a crime. A normal law and order conservative would laugh at that. If a liberal tried to say, “We’re not concerned about this crime. We’re concerned about that crime.” They would say, “The legislature passed a law, a prosecutor took the case, the jury convicted, so you can’t just let it go.” But they do. And they’re exposing the fact that they’re talking about law and order for some. They’re talking about using the criminal law for some. And so I don’t think they deserve the term “law and order” or the term “tough on crime” for that matter. Now, to your point about the black community. I don’t see the conservatives as necessarily exploiting the black community’s fear. The way that I see the story is the conservative movement had a particular agenda. They’ve had a particular set of policy positions that they have wanted to push. Things like mandatory minimums, stop and frisk policing, longer prison sentences. They had been pushing those for their own reasons, which do not include the health and wellbeing of the black community. I’m writing about a different set of people. I’m writing about black community members, black elected officials, many of whom ended up pushing for a similar set of laws, a similar set of policy interventions, for a different set of reasons. Eric Holder, you know, a figure who features prominently in my book, cares deeply about the black community. He’s not going to allow himself to be exploited by somebody else. But he looks out at the world in the early 1990s and goes to the pulpit of churches in Washington D.C. and says, “The thing that is holding black people back today, the thing that is keeping us unfree in the way that segregation kept us unfree, is crime. We are afraid to leave our homes. We have to respond to it.” And he ends up endorsing the vehicle version of stop and frisk policing in Washington, DC. But he doesn’t do it because he’s tricked. He doesn’t do it because he’s being exploited. He does it because he’s independently arrived at this conclusion that this set of policies will help black communities. Now, I think he was mistaken at the time. And I think the evidence now shows that to be the case, but I think he did it out of a deep love for black people, which separates him from some of the other figures that I’m talking about, and that matters so much. Because it means in this moment that we’re in now, one group of people is willing to learn from this past information. The people that are moved by a love of the black community are changing and evolving minute by minute as we speak today. But people that came into this for different reasons, people that never cared about the black community, they’re right where they were.

Amanda Knox

Getting back to the history in the ’70s and ’80s, there were various factions within the black community who disagreed on things like whether to decriminalize marijuana or impose gun control, but they all advocated for an all-of-the-above response to the problems of drugs and violence and poverty and general disorder. Why didn’t that all-of-the-above tactic stick?

James Forman Jr.

Well, mainly because of racism. And the fact that although African American decision makers had control at the local level, there were aspects of national policy that black leaders never controlled. For the all-of-the-above to work required action by Congress, or action by state legislature. So when people said they wanted all-of-the-above, they said, “Yes, we want tougher policing.” And sometimes they said, “We want things like mandatory minimums or longer prison sentences.” But then they also said, “We want funding for job training programs and mental health programs and addiction services. We want housing policy that’s going to desegregate communities. We want access to jobs and to education.” A lot of those things that I just mentioned are things that you needed a broader political constituency to get done. You need Congress to act, you need a president to sign legislation, you need courts to support those efforts. And that’s where my story, which is a story of black political actors, meets that outside opposition. My history that I’m writing is about what black communities did with the things they could control. But there are also things that they couldn’t control. And some of the things that we’re talking about now are things they couldn’t control. So they never got the all-of-the-above. They never got the rest of the things to complement the tougher policing and the longer prison sentences.

Amanda Knox 

What lessons can we take from our collective history of tough-on-crime policies and their foreseen or unforeseen consequences?

James Forman Jr.

One lesson that we can take is that the police-prosecutor-prison bureaucracies have an incredible capacity to grow and to consume resources. So whenever somebody comes to you and says, “I’m going to do both. I’m going to do funding for this police or this prosecutor, this prison program, but I’m also going to complement that with funding for the after-school programs,” I think the response has to be, “How about instead of doing that, let’s double the money for the after-school programs and not add to the budget for police, prosecutors, prisons, because we’ve just been adding to those budgets for 30 or 40 years and they’re big enough. If anything, they need to be shrunk.” And if you can’t get that kind of commitment, then at least you’d better get that funding for the after-school program or the jobs-creating program or the addiction services, you better get that sustained and guaranteed and locked into law, because otherwise what’s going to happen is, you’ll get the funding for both in year one, but then year two, when there’s budget cuts, lo and behold, what’s going to get cut? Not the police budget, not the prison budget. What’s gonna get cut is your social service budget. Those would probably be my initial lessons. And then, thinking about your question a little bit more broadly, I think that the biggest lesson that we can take from the mid 1960s to 2010 is that the problems in America, in particular the problems in poor communities and in communities of color and in African American communities, those problems are real. So it doesn’t do any good to deny things like violence rising when it is. But the key thing that we have to remember is, just because a problem exists, doesn’t mean that criminal law and the criminal system is how we should respond. A problem may be real, but the best solution to that problem will often, maybe always, be a non-criminal response.

Amanda Knox 

People put their foot down on this idea of fairness. What would you say to someone about navigating the fine line between holding people accountable and seeking retribution?

James Forman Jr.

I think your question that you’re asking is a very important one. In a lot of ways, it gets at the core of the motivations that have driven us to where we are at, in terms of criminal policy. People really want accountability. There’s a sense that other people should be held accountable for their misdeeds. Now, let’s be clear. People are willing to make all sorts of exceptions to that. But in general, there’s a sense that when someone breaks the rules, they should be held accountable. Well, here’s the thing in our criminal system. In response to people’s requests for accountability, we have delivered punishment and exclusively punishment. If you dig a little bit deeper and you really spend time with people that have been victimized by crime, you’ll find that often punishment is not precisely what people say they want when they want accountability. They’ll talk about wanting to have the person who harmed them confront and acknowledge what they did, talk about why they did it, talk about “Why me? Why was I the victim?” They want to hear the whole of the story. And the whole of the story includes, and must include, a deep sense of apology and remorse for the harm that they’ve caused. None of this works if it doesn’t start with that. But once that’s clear, then you get to deeper questions like, “What did you go through that puts you to where you would be willing to create this harm in somebody else’s life?” This is the deeper reckoning that underlies the movement for restorative justice. The research that asks victims of crime what they want in response to the harm that they’ve suffered shows overwhelmingly and unequivocally is that if you only give people two options, “We’re going to do nothing or we’re going to punish the person who harms you,” people always choose punishment. Always. Nobody wants nothing done in response. But if you give people a broader set of possible responses that includes things like apology, paying back the harm, explaining what you’ve done, committing yourself to another path, understanding the services available both for the person who’s victimized and for the person who caused the harm, if you put that on the table in a real way, the majority of crime victims say that that’s what they want. They want that over more prison. But that’s never been what we’ve offered. We’ve been offering prison. I do think that one of the exciting things that we’re seeing now around the country, and most of this is happening at a local level, off the radar, are a lot of these upstart, community-based restorative justice programs. Some of them operate out of churches, in schools, in prisons, in the conference rooms of nonprofits. Some of them have funding to work out of the court system, but not typically. And this is, I think, one of the most exciting developments that we have right now, is that people are really asking that question, “What does it mean to hold somebody accountable?”

Amanda Knox

You’ve written, “Our challenge as Americans is to recognize the power each of us has in our own spheres to push back against the harshness of mass incarceration.” What does that look like?

James Forman Jr. 

The first thing is trying to convince people that the system we have is wrong and is doing a lot of harm. Once you get people to that place, and more and more people have arrived at that place, then you’re faced with this enormous, monstrous, awful system. And when you are faced up to the magnitude of that system, the initial response can be to think, “Somebody else is to blame for that, and somebody else has to fix that.” One of my arguments is that this was something that we did collectively. Not everybody was an active participant, not everybody was a knowing participant, not everybody was an equally enthusiastic participant, but at some level, everyone contributed, and we have a collective responsibility to respond. So how do you respond? People are busy and our lives are difficult. A lot of people are just trying to get through the day-to-day, week-to-week. I know. I feel that way all the time, and I say this as somebody who has relative privilege in our society. If you’re struggling, then it’s like, “What can I do? Really, what can I do?” I think each of us has to not ask the question, “What needs to be done?” but ask the question, “What part can I do?” Because nobody can do everything, but everybody can do something. And because the system of mass incarceration has worked its tentacles into every aspect of American life, from housing to employment, to education, to transportation ― there’s no piece of American life that has not been affected by this ― that gives us all an opportunity. That means that everybody can look in their place of employment and ask, “Is my employer a fair chance employer?” And if not, “Let me learn more about what that means.” There are step-by-step guides for how an employer can become a fair chance employer, where you are willing to hire people who have had a criminal record or have been incarcerated. “What is my community doing about reentry and bringing people back from prison?” There’s 900,000 people that come back from prison or jails every year in this country, and they need a lot of support. I can’t do anything about 900,000. But what if we thought about it like this? There are 300,000 faith communities, houses of worship, whether they be synagogues, mosques, churches, etc. If every one of those houses of worship took three people and said, “We are going to take three people coming back into our community, and we are going to create a welcoming space, we are going to help them find a job, we are going to help them find housing, we’re going to help them pay the $30 that it takes to get a driver’s license or a non-driver’s ID, we’re going to sponsor three people?” What if my institution of higher education ― I teach at Yale ― made it our business to create a program that supports people to build their resumes and the academic backing that they need to get into law school?” We then start to create pathways to success for those people. I just picked that last one because it’s the one that I happen to be doing. Is that one more important than the others? No, but I’m in a law school, so that’s a place I have some measure of control. So it’s what I can do. And my plea to anybody listening, or anybody reading, or anybody who is thinking about this issue, is to ask yourself that same question, “What do I control? Where do I have influence and how can I use that influence, however large or small it is, to try to create a society that is less harsh, less punitive, less racist, less brutal, and more welcoming to people who have been harmed by all of those systems?”