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Achieving Representation in an Unjust System

A conversation between James Forman Jr. and Gloria Browne-Marshall.

Gloria Browne-Marshall Sep 7

In his new book, Locking Up Our Own: Crime and Punishment in Black America, James Forman Jr. — son of civil rights leader James Forman — explores the debates that took place within the African-American community surrounding drugs, policing and criminal justice after the fall of Jim Crow, when mass incarceration began to codify itself into America’s legal system. He spoke with Gloria Browne-Marshall on WBAI radio’s “Law of the Land” on Sept. 5 as part of a collaboration with The Indypendent.

Browne-Marshall is a professor of Constitutional law at John Jay College of Criminal Justice and is an accomplished scholar in her own right. She is the author of several books including Race, Law and American Society: 1607 to Present. A civil rights attorney, she has also worked with the Legal Services NYC and other civil rights organizations. She began by asking Forman about the legacy of the Civil Rights Movement and the turn it took during the 1970s.

Gloria Browne-Marshall: You can’t understand your present if you don’t understand the past. And your book focuses on something that happened in our past. At some point, fearless freedom fighters like your father handed over the future of our community and it seems that we didn’t do the greatest job with it. Why don’t you tell us more about your perspective on this in your book?

James Forman Jr: When I grew up, both my parents were members of the Student NonViolent Coordinating Committee (SNCC). My dad is the one that everybody knows because of his leadership position as Executive Secretary. But my mom was also a member of the organization. They were an interracial couple at a time when that was illegal in many states in this country. I was a child of the movement in a very real sense and saw the dramatic progress that that generation made. I had opportunities as an African-American man that were unheard of for my father’s generation, unheard of for somebody like him who grew up under Jim Crow. I got the chance to go to Yale Law School and then I clerked for Justice Sandra Day O’Connor and I became a public defender in Washington D.C.

But I grew up in a working-class, African-American neighborhood in Atlanta and many of my classmates from high school didn’t make it. In the neighborhood that I lived in we had two huge buildings. We had a penitentiary and a Ford plant — two huge institutions. By the time I graduated from law school the penitentiary had added a wing and the Ford plant was closed. That to me a kind of a testament to what was happening in the country. I chose to become a public defender because I wanted to fight for what seemed to me to be the civil rights issue of my generation: Keeping black men and women, black boys and girls mostly, out of the criminal justice system.

When I would go to court, I would have cases where not only were my clients African American, the judges and prosecutors were as well. The police force in D.C. is majority black and the police chief when I was there 30 years ago was African American. We were doing in a majority African-American community with a lot of black elected officials the same harsh,  punitive and counterproductive things I was seeing around the country.

We had a penitentiary and a Ford plant — two huge institutions. By the time I graduated from law school the penitentiary had added a wing and the Ford plant was closed.

One in three young black men is under criminal justice supervision in the United States. That’s a number that came out starting in the early 90s from a great organization called the Sentencing Project. In D.C., it’s one in two. And so this question of how did we end up going along with this nationwide push to lock up more people arises. That was what I was trying to grapple with in the book. I felt like that story hadn’t been told. I felt like we hadn’t really gone back in history to the 60s or 70s or 80s, to the origins of the War on Drugs and asked, “What was the involvement of the black community then?” And going forward, “What can we do now?”

Let’s break down the War on Drugs. When President Nixon declared war on drugs he made-up the culprit of African Americans and white hippies. The news, night after night, demonized them. The rest of the country went along with this demonization. The country’s state, local and federal criminal justice resources were put forward. But something else happened that you touch on a little bit in your book in relation to stop and frisk. There was also a sea change with the Supreme Court beginning with the Terry vs Ohio ruling, which  permitted police to perform pat downs without reasonable suspicion.

There’s a political story and there’s a legal story. The political story is the one that you identified. People like Nixon adviser Bob Haldeman said we’re going to talk about crime because we can’t talk about race anymore, but when we talk about crime that white voter that we’re appealing to knows that we’re actually talking about black people. They were very explicit about making coded racial appeals. Michelle Alexander, Brian Stevenson and others have written about their efforts.

Then, legally, the Supreme Court went back and forth on criminal justice issues in the 60s. There are some rulings from that era that are positive in terms of the right to counsel, in terms of the right against self-incrimination. There are some very worthwhile decisions that haven’t been executed to this day to their full potential or close to it. The landscape of what it’s like to be charged with a crime when you’re poor hasn’t changed enough, but the court made steps in the right direction. Then, at the same time, you have things like Terry vs Ohio, which basically authorized — although I don’t know that the court knew how it would be exploited in the decades to come — this stop-and-frisk program that we would see in later years in places like New York City.

There was a political move in the 60s and early 70s to capitalize on rising crime in order to gin up fear and to persuade voters — black and white, but mainly white — that now is the time to get tough.You have the Court authorizing some of that. That’s the backdrop, that’s the national story. I’m trying to ask the question, “What are black elected officials doing within that?” My book is both a story of agency and a story of constraint.

One of the things that I write about is marijuana decriminalization in the 1970s. People have kind of forgotten it today but it was a big issue around the country back then. I myself thought marijuana decriminalization had only been an issue for the last four or five years until I went back and did my research. It really was first pushed in the 70s. In D.C., the opposition to marijuana decriminalization mainly came from black ministers within the black church, which was an even more politically powerful force than it is now. They didn’t oppose marijuana decriminalization because they didn’t care about black people. That wasn’t their rationale in the way that it was for Nixon. Nixon didn’t have the interests of the black community at heart. But these were individuals who did care about black people, black progress. They are African American themselves and were worried about black youth using marijuana and getting high because they felt our kids have to be twice as good. They have to be twice as ready for school. They have to be on the straight and narrow because of racism. Because of the way racism has held us back as a community, we can’t be out there getting high.

You had people from the black left like Stokely Carmichael and others saying, “Drugs are a trick of the oppressor. Yes, the White Man is bringing drugs into this country but black men are selling drugs on the corner. We don’t know if we can do anything about the international cartels but we can police ourselves. We can say to the young brother on the corner, ‘No, no, no. You have got to get out of our neighborhood with this stuff.’” That was a really strong message at the time. It was fascinating to learn about these other forces that were going alongside the Nixons and the Haldemans, driving towards the same outcome although often with different motivations.

My book Race, Law, and American Society has a chapter in it on crime and injustice. But I follow it from the 1600s going forward; looking at the ways in which laws were used to oppress the African-American community, especially after slavery and through the time period of Jim Crow and into the present. When the debate came up on decriminalizing marijuana about five years ago my concern was that it was a trick. I was looking at it from very much the perspective you’ve given. What are we saying to our young people?

I was walking down the street and saw a young white woman standing on the corner talking to a girlfriend, smoking weed. It’s so funny because we do hear white people smoke marijuana, black people smoke weed. But I’ll  say she was smoking weed with her white-self in a cute little sundress, standing on a corner in Manhattan. And I wondered if a  brother were to stand on the corner doing the exact same thing, what would the outcome be?

My concern was that even though certain states like Colorado decriminalized weed they would figure out some kind of way for it to be criminalized for us. There is a double standard under the law. That’s the core of my research and my sense of American justice. Right now we have the opioid epidemic. When it was our communities flooded with heroin there were no programs. No one was there handing out kits to save us from overdosing. There is a record of duplicitousness from the criminal justice system when it comes to communities of color. So I was probably one of those people who was not a fan of decriminalizing marijuana. I knew it would help our communities but I still wanted to see the facts. Let’s have organizations like the Urban Institute actually analyze this to find out if this would actually be applied fairly.

I’m really glad that you just came with it and shared your concerns because, in our community, we’ve always been worried when we’re dealing with drugs about two things. The first is the implications that it has on the individual and on the community. What does it mean to be using drugs, to maybe get addicted? Jackie Robinson, the baseball star, visited black churches in the 1970s saying, “Don’t decriminalize marijuana because it will lead to heroin.” And the evidence he gave was that his son, Jackie Jr., became a heroin addict. So there’s a fear of what the drugs will do. And then, on the other side, there’s a fear of what the courts and the police and the criminal process will do. There’s this constant balancing act of trying to figure out which of these possible harms is worse.

A woman walks up to Jesse Jackson in Burmingham Jail and she’s wearing a shirt with Dr. King on it. He says, “Don’t wear that shirt. If you believed in Dr. King, if he was your hero, you wouldn’t be here.”

When they polled African Americans in D.C. on this question in the 70s, a majority said they opposed legalization. The majority view was that the harms of the drugs outweighed the harms of criminalization. That view is shifting in D.C. now. In 2014, they took up the same decriminalization law that they had rejected in 1975 and this time it passed. It passed because we have now had 40 years of evidence of what the harms of the criminalization look like. We know about the lost jobs, the inability to get student loans, the careers that are shortened, are truncated. Nobody I know who supports decriminalization of drugs thinks it’s a good thing to use them but, instead, they say we have to have strategies to keep people off of drugs to begin with, especially kids, and to keep kids from becoming addicted as adults.

I hear you about the double standard. The problem is that having something be criminalized is what gives the police the maximum authority to exert that double standard. If the drug was not criminal, then the police wouldn’t have the authority to stop the young brother with the weed. They still might try to find a way but it takes away one excuse, one tool in their arsenal for bringing somebody into the legal system. What we need to be focused on in the next 10 years as we think about what kind of reforms we want, is how we can reduce the number of ways in which people can get brought into the criminal system. And that’s got to be our goal.

One thing I have found fascinating is the conservativeness of the black community. Most people don’t understand that the African-American community is quite conservative. But these issues of justice are not liberal issues. They fall within the realm of human experience, the feeling that one should be treated equally under law. But because there is all this advocacy around fighting for justice and fighting against injustice, the black community itself is seen as a more liberal community than it actually is.

Having said that, we start off with a conservative community and then we have black judges, black prosecutors, black police officers who are now, as you pointed out, in positions of power — not just in Washington D.C., but across the country. They’re enforcing laws that have a racial bias to them, incarcerating people of color in a way that’s disparate to their number. And it is rooted deeply in Jim Crow and slavery. Even though we have more people of color in these positions, they’re still only enforcing the laws that are already in place. We have them in positions in which they have the title but not the power. The power they do have is to enforce what is already there.

You really summed up the dilemma brilliantly. The dilemma of representation: What does it mean to achieve representation in an unjust system? I feel in some ways that could be an alternative title for my book. And I’m glad you raised this notion of black conservatism because I haven’t really talked about it that much and it matters so much to me. I feel like portrayals of the black community in popular discourse have always flattened us out to a single perspective. I really wanted to write something that presented the rich ideological and political diversity within black America, the debates that were taking place in all of their nuance and complexity and different positions. Those tensions, they’re not surprising to black people. Black people read this and they’re like, “Yeah that’s my family, that’s my Thanksgiving dinner.” But it’s not known outside the black community.

Here is one thing that I sometimes chafe against: Because the people that were pushing for tougher laws won most of the debates that I describe in the book, there’s a way in which you can thinly summarize the book and it makes it sound as if what I’m really writing about is just black people who wanted tougher criminal laws. But really, I’m also writing about the people that were against mandatory minimums. They lose, but why? That discussion is really important to me. We don’t have enough rich political, social and intellectual histories, especially of recent decades.

That’s not to say that having people who look like us on the police force and on the city council doesn’t matter, it really really does. As a black child growing up in Atlanta where I would look at the newspaper every morning and see a black city council making decisions, that was significant.

So on the one hand, there is a sense of pride — a person of color, an African American who’s on city council — then on the other, whenever some horrible crime happens everybody holds their breath: “Please, don’t let his name be Leon Jones.” I’m quite sure the Latino community feels the same way. You’re waiting for that last name to figure out if this is going to be somebody who’s going to bring embarrassment to your community. That’s something else that people don’t know about the African-American community. We are embarrassed when people are arrested and they are of African descent.

We have not discussed this issue of classism. Black politicians, black prosecutors — education has taken them to a certain level. They are representing the community as members of the middle class. There is a sense of embarrassment towards the black suspect. There’s a scene in your book where a judge chastises young offenders, giving them the riot act over what Martin Luther King had fought for. You follow the rise of the black middle class. There was a much smaller black middle class dating back to the 1800s but now we have this dynamic rise in the black middle class. That seems to also figure into your book’s narrative. Tell us a little bit about that.

The book opens with that story of me and a judge. I’m representing a young man by the name of Brandon (I change everybody’s name in the book) and he’s facing sentencing for possession of a gun and a small amount of marijuana. In this case, the prosecutor happens to be African American. She’s asking for him to be locked up. The judge is African American and has to make the decision. He gives Brandon this speech about what King fought and died for. Then he locks Brandon up. I use that story as a way into the dilemma of this book: We have all these African Americans in the courtroom and the net result for Brandon is the same.

We were all, everybody in that courtroom, similar in that we were all African American but there was a class difference between everybody and Brandon. You could think of the prosecutor and the judge and myself as educated. We all had gone to law school. Whether we grew up poor or not, we were now middle class. And, in a way, that story captures some of what’s going on in black communities today. It’s not just D.C.; it’s Atlanta, it’s Detroit, it’s Jackson, Mississippi. I just got an email from a public defender in Jackson who said, “Wow, your book is my lived experience. I go to court. There are black judges, black prosecutors, and my clients just catch hell every day.

We haven’t really come to terms with the distaste that people in our community have for those who they see as not having lived up to their potential, those that they see as holding us back, that they see as unwilling or unable to take advantage of the opportunities that America is providing, that they see as unwilling to live up to Dr. King’s dream. One of the people I quote in the book is Jesse Jackson. This is in the 80s. He’s in Birmingham, Alabama in a jail and he’s visiting. He’s meeting with some prisoners and one woman walks up to him and she’s wearing a shirt with Dr. King on it. And he says, “Don’t wear that shirt. If you believed in Dr. King, if he was your hero, you wouldn’t be here.”

I have much love and much respect for much of what Jesse Jackson has done in his life. I’m not trying to single him out or belittle him in any way. I’m just trying to point to how that attitude has become part of many people’s consciousness; this sense that if you really were holding yourself upright you wouldn’t be in the criminal system.

We have this outlandish issue of black on black crime. We all know, or should know, that when people hurt other people those are usually people within arm’s reach, within their own communities. You have Asian on Asian crime and you have white on white crime. But this whole sense that this is a unique thing, that black on black crime is supposed to be more violent and more prevalent than any other type of crime and therefore it requires more action. There’s a belief that there’s such a thing as just black on black crime, as opposed to crime within any other ethnicity or racial group and that it requires more policing than any other type of criminal issue.

Cover of Ebony Magazine from 1979.

These days people recognize the point that you just made and are really pushing against that concept as even being a meaningful one. But here was an idea that in some ways originated in the black community.

If readers pick up the book, they should look at page 138 because I include a cover from Ebony Magazine in 1979, a special issue on black on black crime. I tried to sort through where that concept originated but it is a little bit murky. But a lot of the first use of the term black on black crime was from a progressive mentality of trying to say, “Listen, we need to deal with income inequality. We need to deal with racism. We need to get better housing.” When you look at the causes and the cures that they identify, it’s not just more police. This is an example of a complex term that over time was lifted out of the black community. It then became like a hammer for white conservatives.

Even to this day, Donald Trump and Attorney General Jeff Sessions use it as a way of demonizing the black community. Black columnists in Pittsburgh, in Chicago during the early 70s were some of the first people to use the phrase that I could find but they weren’t always using it to just say, “More police, more prosecutors, more prisons.” That’s how it got when it was co-opted, when it was transformed.

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Photo credit: Derek Goulet.