Over the past few years, many people who decry mass incarceration have coalesced on certain tenets of collective wisdom. First, as the title of Michelle Alexander’s The New Jim Crow suggests, that mass incarceration is a form of racial domination that shares essential elements with the regime of Jim Crow. Second, that the massive increase in incarceration since 1970 — from about 300,000 people behind bars to 2.3 million people imprisoned today — is essentially the product of a backlash to the gains of the civil rights movement. And, finally, that this massive increase has largely been fueled by the drug war. You hear these beliefs repeated in President Obama’s speeches, in articles in liberal magazines and at bars in Brooklyn.
It’s a nice pat narrative. It provides us with convenient villains, a tidy moral, and an easy answer for what should be done — let those nonviolent drug offenders go free!
There’s just one problem. It’s wrong. Not totally wrong, of course, but certainly incomplete, and in some ways misleading. The criminal justice system undoubtedly reflects and reinforces racial domination, cementing an equation of blackness with criminality; the racial disparities in who goes to prison for drug charges are real and appalling, despite surveys consistently finding that at least as high a percentage of whites use and sell drugs; the “war on crime” and “war on drugs” were ways for reactionary politicians like Nixon and Reagan to foment and channel a white backlash without ever explicitly talking about race; and so on. But, although people convicted of drug offenses make up about half the federal prison population, they make up only about one in five people imprisoned in this country. The racial domination thesis offers no answers for why we lock up white people at a far higher rate than Europe or Canada — albeit at a far lower rate than black or Latino people. Violent crime rates really did rise dramatically in the ’60s. And, finally, the white backlash thesis fails to explain why black leaders were among the staunchest advocates of the punitive criminal policies, including mandatory minimums for drug cases, that brought us to the present impasse.
Yale Law School professor James Forman Jr. focuses on the last part in Locking Up Our Own. Interweaving analysis and autobiography into a tightly argued and compellingly readable package, he details how black police, black politicians and black voters played a crucial role in ratcheting up penalties and building the current carceral state. Focusing on Washington, D.C., he tells stories from the courtroom trenches of how black judges would lecture black defendants about how they were desecrating the legacy of Martin Luther King before handing out harsh sentences. Forman is ideally suited to tell this tale: son of civil rights activists; former public defender; founder of a D.C. charter school that works with justice-involved youth. No one should doubt his commitment to combating mass incarceration. But we need to understand the nature of the beast if we want to fight it.
The story he tells is nuanced. He takes pain to note how black leaders also wanted programs that would address the root causes of crime such as education and social services — support that was not forthcoming from the federal government. And he is sensitive to class distinctions in attitudes and experiences within the black community. But just as mass incarceration cannot be ascribed to white backlash politics when it comes to D.C., it cannot be described as just the politics of the black bourgeoisie either. It was a response to a real sense of fear and insecurity: D.C., like New York and many other cities, had a crime wave that did not peak until the early ’90s and, just like now, poor black people were both more likely to be criminal defendants and more likely to be the victims of crime. It seems obvious today that mass incarceration is a racial justice issue, but many people steeped in the civil rights movement saw the problem as more the lack of attention to black victims.
As Forman would likely be the first to admit, there are real limits to his methods. D.C., with its majority-black government, is not a good proxy for the country as a whole. And the reasons why a particular set of policies were adopted are not necessarily the reasons why they remain in place. Nevertheless, Locking Up Our Own is a major contribution to the literature on mass incarceration.
As Forman argues, the real problem of mass incarceration is what we do with people who commit violent crimes. Certainly, the almost half a million people in cages in this country because of drug charges should be let out immediately. Everyone in jail on petty-ante bail pending trial should be let go, too — Rikers is filled with poor people who are there because they can’t scrape together $500 or $1,000 to buy their freedom. But there are also almost 1 million people behind bars for violent offenses—and figuring out what we do with these people poses a knottier problem.
There are no easy answers. But this does not mean there are no ways forward. In the epilogue, Forman discusses the case of a teenager, Dante, he represented. Dante robbed a working-class black man at knifepoint as part of a gang initiation. There was no question of his guilt; in fact, he confessed as soon as he was caught. But Forman did not let that stop him: he tracked down records of Dante’s horrific childhood and, with help from his mom, found a youth program that would accept his client, who was skilled at working with his hands. This much is already far more than what the lawyers for most poor people accused of crimes would do — and, realistically, can do, given crushing caseloads. Forman, however, did not stop there. He spoke to the victim, telling him Dante’s story and his remorse. With the victim urging mercy at sentencing, the judge agreed not to imprison Dante. Decades later, Forman ran into Dante in the streets of D.C.; he has never been re-arrested, works in construction and has a family. It seems doubtful that the story would end this way if Dante had been shipped off to a juvenile jail, let alone adult prison.
This story is exceptional but it need not be. If we are truly committed to ending mass incarceration, we have to be willing to take chances on rehabilitation, even when people cause real harm. This will require a radical revamping of our sense of justice. No longer can the length of the prison sentence be the only way we measure the seriousness of the crime. No longer can we banish people to prisons upstate, far from major population centers, and forget about them. And no longer can we concentrate those who commit acts of violence in cages to fight among themselves.
The current carceral state was not built in a day. It was the product of numerous actions, by various policymakers, most of whom did not fully anticipate the consequences of their choices. And, as Forman suggests, dismantling it will likely have to take place in the same incremental manner.
Illustration by Brian Ponto.