How Black Leaders Unintentionally Contributed to Mass Incarceration
The wars on crime, drugs and guns that began in the 1970s were born out of a desire to stop an alarming spike in crime in American cities, but ended up disproportionately affecting low-income men of color.
In the Pulitzer Prize-winning book “Locking Up Our Own: Crime and Punishment in Black America,” author James Forman Jr. paints a nuanced picture of how black politicians, civic leaders and citizens pushed for tough-on-crime measures with unintended consequences and offers a powerful retort to the claim that African Americans don’t care about so-called black-on-black crime.
Forman Jr. is a professor of law at Yale Law School. He joins us in conversation.
Below, an excerpt from “Locking Up Our Own.”
All of us in the public defender’s office feared the Martin Luther King speech. Curtis Walker, an African American Superior Court judge in Washington, D.C., was famous for it. And today
Brandon, my fifteen-year-old client, was on the receiving end.*
“Son, your lawyer here has been telling me some good things about you: how you dote on your little sister, how your football coach says you are a born leader, how some of your teachers believe you can do better. He says he has found a program for you that will help you with school, and that I should give you a chance at that and not lock you up.”
Brandon had pleaded guilty to possessing a handgun and a small amount of marijuana—enough to use, but not to sell. I had argued for probation. Judge Walker told Brandon he was considering my proposal. But first he had some things to say.
“Mr. Forman says you need another chance. But let me ask you, do you even realize how many chances you’ve already had? You might think you have it hard. But let me tell you, it was harder once. Black boys picked cotton once upon a time. Sat in the back of the bus—those who were lucky enough to even be on the bus, and not walking.”
Judge Walker was getting into his rhythm now. He wasn’t a preacher, but he sounded like somebody who had spent more than a few Sundays in the pews.
“Now you can go to school, study hard, live your dreams. It isn’t easy—I know that. But it is possible. And people fought, struggled, and died for that possibility. Dr. King died for that, son. And what are you doing? Not studying! No, you are cutting class, runnin’ and thuggin’, not listening to your momma or grandmother. Instead, you want to listen to some hoodlum friends.” By now, the judge was glaring at Brandon.
Out of the corner of my eye, I could see that Brandon was keeping his gaze steady on the judge. This was good. Judge Walker liked that. If Brandon avoided eye contact, Judge Walker would think he was being disrespectful.
“Well, let me tell you: Dr. King didn’t march and die so that you could be a fool, so that you could be out on the street, getting high, carrying a gun, and robbing people. No, young man, that was not his dream. That was not his dream at all.”
This was the speech I knew so well. The words changed a bit each time, but the theme stayed the same: Life is not easy for African Americans today, but it’s better than it was, and you best stop being a thug and start taking advantage of the opportunities that others fought so hard for.
I was also familiar with the emotions etched on Judge Walker’s face as he spoke—anger, frustration, and despair. I was a new public defender, but the judge had been around for a long time. He looked and sounded like somebody who was tired of lecturing black boys (and a few girls), but not so tired that he wouldn’t try one more time. He was mad at Brandon, but he hadn’t given up on him. He just seemed like a man with no good alternatives, confronting a problem that was too big for him to solve.
Judge Walker paused, took his eyes from Brandon, and started looking through the case materials spread out before him. His lecture done, he was taking his time imposing a sentence. Another good sign. Judge Walker was known for giving defendants a fair trial, but if you lost, look out. Defense attorneys called him “a long-ball hitter,” referring to the lengthy sentences he imposed. But now he was hesitating. Maybe I had persuaded him that this was not an easy case.
I knew that probation was a long shot. The gun charge was serious. And worse, a report from the court’s social worker had claimed that Brandon hung out with other kids who were involved in some recent neighborhood robberies.
But the robbery allegations were just rumors; Brandon hadn’t been charged with that. As for the gun, well, Brandon lived in a terribly dangerous neighborhood, one where kids sometimes carried guns for self-defense. Most important, I had told Judge Walker, this was Brandon’s first arrest, and he had great potential. His football coach and two of his teachers had written letters about his promise, his family was supportive, and he had recently enrolled in a tutoring program for at-risk students. And Brandon had pleaded guilty, accepted responsibility for his actions, and been remorseful. Juvenile court was supposed to offer second chances, and Brandon was a perfect candidate.
The prosecutor argued that Brandon should go to Oak Hill, D.C.’s juvenile detention facility. I had countered by pointing out what everybody knew: Oak Hill was a dungeon, with no functioning school, frequent incidents of violence, no counseling or mental health services worth the name, and no transition services for young offenders once they were released. Brandon would miss months of actual school while serving his sentence, and it was possible that the principal wouldn’t take him back once he returned to his neighborhood. If this happened, there was no good alternative school he could turn to.
Brandon fidgeted as we waited for Judge Walker to speak, and I tried to calm him by placing my hand gently on the back of his shoulders. I glanced behind me and offered what I hoped was a comforting smile to Brandon’s mother and grandmother sitting in the first row. They had never missed a court hearing, had always voiced their support for Brandon. Now all they could do was wait.
Judge Walker finally gathered the papers up into one stack and placed them back in the case file. When he spoke, the verdict was quick and painful. “Brandon,” he said, “I believe you have potential, and I see you have supportive teachers and family. But none of that was enough to stop you from picking up a gun. Even if I believe that you had it because you were scared, you could have hurt somebody. Son, actions have consequences. Your consequence is six months at Oak Hill. After which I hope you make good on the hopes that your mother and grandmother have for you.”
That was it. The bailiff, who had been sitting behind us, stepped forward to take Brandon to a cell in the courthouse. Brandon’s mother gasped and started to cry. Judge Walker wouldn’t like that—none of the judges did—but what could he do now? The courtroom clerk would probably help her out into the hallway. Or so I hoped. I had to go see Brandon.
The cellblock was just a few feet behind the courtroom, but it was a world apart. No majesty here, no wood paneling, no carpeting or cushioned seats. Just metal and concrete, housing black boys like Brandon. And make no mistake about it: they were all black. That day,
Brandon’s cell held three other black teens waiting for their cases to be called. The picture was the same in almost every D.C. courtroom, whether the accused were juveniles or adults. There were a few women and girls, but mostly men and boys. Nearly all—according to official records, more than 95 percent—were African American.
This state of affairs was no secret. In 1995, the year Brandon came before Judge Walker, the Sentencing Project issued one of a series of increasingly alarming reports documenting blatant racial disparities in the criminal justice system. Nationally, one in three young black men was under criminal justice supervision. In Washington, D.C., the figure was one in two.
Racial disparities were nothing new. But now they were being exacerbated by an experiment in punitive criminal justice the likes of which the world had never seen. Beginning in the early 1970s, America had adopted an array of increasingly tough approaches to crime, including aggressive street-level policing, longer sentences, and a range of lifetime punishments such as felon disenfranchisement. The result? By 1995, a nation with only 5 percent of the world’s population held almost 25 percent of its prisoners. And an ever-growing proportion of these prisoners were black.
Brandon was now one of them.
He looked defiant when I arrived in the cellblock. I think he wanted to cry, but he definitely would not do that in front of the other kids. I told Brandon I would come to see him at Oak Hill and try to help him get through his six months. (“Do the time, don’t let the time do you,” the kids liked to say.)
At that moment, I hated Judge Walker and the entire court system. Most of all, I realized, I hated the Martin Luther King speech.
It would be one thing, I thought, for the judge to give Brandon this speech if he was going to put him on probation. In that case, a heartfelt lecture might have done some good. It might have been something that Brandon needed to hear, something that would encourage him to make the most of his second chance. But to invoke Dr. King while locking up another young black man? It was perverse. Surely Judge Walker had noticed that everybody in the cell a few feet away from him was black. Yet here he was, simply adding to the gross racial disparities in the criminal justice system. Where did he get off taking the moral high ground?
As I saw it, I was the person in that courtroom fighting for Dr. King’s legacy—I was the one doing civil rights work. I had become a public defender so that I could confront racial injustice. Just one year before, I had been serving as a law clerk for Supreme Court Justice Sandra Day O’Connor. She had encouraged me to work for the Department of Justice or join a national civil rights organization such as the NAACP Legal Defense Fund. I remember her surprise when I told her that I wanted to defend poor people charged with crimes in the local courts of Washington, D.C.
When Justice O’Connor asked why I wanted to be a public defender, my answer was simple: This was the unfinished work of the civil rights movement. I was literally a child of that movement. My parents had met in the Student Nonviolent Coordinating Committee (SNCC, which everyone pronounced “Snick”), one of the major civil rights groups in the 1960s. My dad, born in 1928, was raised in Mississippi, where he ate dirt to feel full during the Great Depression. When he was eight years old, he failed to say “Yes, ma’am” to a store clerk, and white men in the store threatened to lynch him if his uncle brought him to town again. Active in campus politics as a student in the 1950s, my dad joined the fledgling SNCC in 1961. As the group’s executive director, he ran internal operations—everything from paying the bills to expanding staff to planning strategy for voting rights drives. My mom had dropped out of Sarah Lawrence College to join SNCC’s New York office in 1962. Six months later, she became a coordinator at the group’s Atlanta headquarters, raising money and communicating with SNCC chapters at northern colleges.
Now, thirty years later, I was an African American clerking at the Supreme Court, beginning a professional life that would not have been possible without generations of sacrifice and struggle. But despite the gains of the civil rights movement, I knew that progress wasn’t the
Whole story. The nation’s prison population was growing darker. In 1954, the year of Brown v. Board of Education, about one-third of the nation’s prisoners were black. By 1994, when Justice O’Connor and I were talking, the number was approaching 50 percent. The criminal justice system, I told her, was where today’s civil rights struggle would be fought. And my short time representing young men like Brandon had convinced me that I was right.
Thoroughly pissed off, I left Brandon and returned to face his family, who I knew were probably sobbing in the hallway of the courthouse. On my way, I passed back through the courtroom, where the judge, the court reporter, and the juvenile prosecutor were chatting, waiting for the next case to be called.
As I passed them, I noticed another racial reality. It wasn’t only Brandon and the other young men in the cellblock who were black. So was everybody in the courtroom—not just the judge, but the court reporter, the bailiff, and the juvenile prosecutor. So was the police officer who had arrested Brandon, not to mention the police chief and the mayor. Even the building we were in—the H. Carl Moultrie I Courthouse, named after the city’s first black chief judge—was a reminder of the African American influence on D.C.’s legal system.
This wasn’t my first time in an all-black D.C. courtroom, but something—probably my anger at the Martin Luther King speech—made the reality stand out that day. When I got back to my office, I continued the racial tally. I had been to the detention facility that would be Brandon’s new home more times than I wanted to count, and I knew that all the guards there were black, too. The city council that wrote the gun and drug laws Brandon had been convicted of violating was majority African American and had been so for more than twenty-five years. In cases that went to trial, the juries were often majority black. Even some of the federal officials involved in D.C.’s criminal justice system were African American, including Eric Holder, then the city’s chief prosecutor.
What was going on? How did a majority-black jurisdiction end up incarcerating so many of its own?
Over time, I have come to see that this question, though particularly urgent in Washington, D.C., is of national significance. In September 2014, the Sentencing Project issued a report comparing the attitudes of whites and blacks regarding crime and criminal justice policy. It found that when Americans were asked, “Do you think the courts in this area deal too harshly or not harshly enough with criminals?” more whites (73 percent) than blacks (64 percent) said “not harshly enough.” Media coverage of the report emphasized what the Sentencing Project called “the racial gap in punitiveness.” But the fact that almost two-thirds of blacks displayed such punitive attitudes received little notice. How could it be that even after forty years of tough-on-crime tactics, with their attendant toll on black America, 64 percent of African Americans still thought the courts were not harsh enough?
I wrote this book to try to answer such questions. Along the way, I have tried to recover a portion of African American social, political, and intellectual history—a story that gets ignored or elided when we fail to appreciate the role that blacks have played in shaping criminal justice policy over the past forty years. African Americans performed this role as citizens, voters, mayors, legislators, prosecutors, police officers, police chiefs, corrections officials, and community activists. Their influence grew as a result of black progress in attaining political power, especially after the passage of the Voting Rights Act in 1965. And to a significant extent, the new black leaders and their constituents supported tough-on-crime measures.
To understand why, we must start with a profound social fact: in the years preceding and during our punishment binge, black communities were devastated by historically unprecedented levels of crime and violence. Spurred by a heroin epidemic, homicides doubled and tripled in D.C. and many other American cities throughout the 1960s. Two decades later, heroin would be eclipsed by crack, a terrifying drug whose addictive qualities and violent marketplace caused some contemporaries to label it “the worst thing to hit us since slavery.”
Letters from black citizens, neighborhood association newsletters, and the pages of the black press from the past forty years reveal astonishing levels of pain, fear, and anger. In 1968, a group of black nationalists in D.C. called drug dealers “black-face traitors of our people who sell dope to our young boys and girls and make whores and thieves of them.” A decade later, a black D.C. neighborhood association circulated a flyer promoting ways to defend homes from break-ins: the list included guard dogs, security alarms, wild snakes, and, for those with fewer resources, fishhooks strung around doors and windows to puncture the flesh of would-be burglars. By the 1980s and 1990s, the files of D.C. Council members were crammed with letters from scared constituents, complaining that “we feel like prisoners in our homes, strangers on our own streets,” and begging for more police action.
As they confronted this devastating crime wave, black officials exhibited a complicated and sometimes overlapping mix of impulses. Some displayed tremendous hostility toward perpetrators of crime, describing them as a “cancer” that had to be cut away from the rest of the black community. Others pushed for harsher penalties but acknowledged that these measures would not solve the crisis at hand. Some even expressed sympathy for the plight of criminal defendants, who they knew were disproportionately black. But that sympathy was rarely sufficient to overcome the claims of black crime victims, who often argued that a punitive approach was necessary to protect the African American community—including many of its most impoverished members—from the ravages of crime.
Many black officials advocated tough-on-crime measures in race-conscious terms. For example, some blacks opposed marijuana decriminalization because they saw it as tantamount to giving up on black youth—youth they had a responsibility to protect from the destructive impact of drug use. Others argued that blacks were entitled to expanded police forces and courts—state resources they had historically been denied. Some, like Judge Walker, believed they were protecting the legacy of the civil rights movement in the face of the black community’s self-immolation.
In documenting the range of black responses to crime, this book repudiates a claim sometimes made by defenders of the criminal justice system: that African Americans protest police violence while ignoring violence by black criminals. There is much to say to this critique—not least, “Of course we hold government to a higher standard than street gangs.” But these pages suggest another response: African Americans have always viewed the protection of black lives as a civil rights issue, whether the threat comes from police officers or street criminals. Far from ignoring the issue of crime by blacks against other blacks, African American officials and their constituents have been consumed by it.
This book tells a story about what African Americans thought, said, and did. But in focusing on the actions of black officials, I do not minimize the role of whites or of racism in the development of mass incarceration. To the contrary: racism shaped the political, economic, and legal context in which the black community and its elected representatives made their choices. From felon disenfranchisement laws that suppress black votes, to exploitative housing practices that strip black wealth, to schools that refuse to educate black children, to win-at-all-costs prosecutors who strike blacks from jury pools, to craven politicians who earn votes by preying on racial anxieties, to the unconscious and implicit biases that infect us all, it is impossible to understand American crime policy without appreciating racism’s enduring role.
We witnessed another example of the enduring power of race-baiting in the 2016 presidential election campaign. Donald Trump, whose signature contribution to political debate had been his relentless propagation of the lie that Barack Obama is not an American citizen, ran the most racist presidential campaign since the arch-segregationist George Wallace’s 1968 bid. While Latinos and Muslims were Trump’s principal targets, African Americans were far from immune. In particular, Trump revived the “law and order” mantra that Republicans such as Goldwater, Nixon, and Reagan had once used to great effect, portraying America’s black neighborhoods as killing fields whose only hope lay in aggressive policing. We don’t yet know how this campaign theme will translate into policy over the course of the Trump presidency, but the prospect of more stop-and-frisk and less federal civil rights oversight of local police departments is ominous indeed.
These pages reveal the myriad ways in which American racism narrowed the options available to black citizens and elected officials in their fight against crime. For example, African Americans wanted more law enforcement, but they didn’t want only law enforcement. Many adopted what we might think of as an all-of-the-above strategy. On one hand, they supported fighting drugs and crime with every resource at the state’s disposal, including police, courts, and prisons. On the other hand, they called for jobs, schools, and housing—what many termed “a Marshall Plan for urban America.” But because African Americans are a minority nationally, they needed help to win national action against poverty, joblessness, segregation, and other root causes of crime. The help never arrived. The requests for assistance came at a time when Reaganism was ascendant, the Great Society was under assault, and there was little national appetite for social programs—especially those perceived as helping blacks. So African
Americans never got the Marshall Plan—just the tough-on-crime laws.
Understanding African American attitudes and actions on matters of crime and punishment requires that we pay careful attention to another topic that is often overlooked in criminal justice scholarship: class divisions within the black community. Although mass incarceration harms black America as a whole, its most direct victims are the poorest, least educated blacks. While the lifetime risk of incarceration skyrocketed for African American male high school dropouts with the advent of mass incarceration, it actually decreased slightly for black men with some college education. As a result, by the year 2000, the lifetime risk of incarceration for black high school dropouts was ten times higher than it was for African Americans who had attended college.
These class dynamics drove elected officials toward a tough-on-crime stance in some predictable ways. For example, longer sentences for burglary are unsurprising, since they put (mostly poor) black burglars behind bars and leave (mostly middle-class) black homes protected.
But class divisions influence criminal justice debates in black communities in less obvious ways as well: they explain, for example, why black elected officials have been much more likely to speak out against racial profiling (which harms African Americans of all classes) than against unconscionable prison conditions (which have little direct impact on middle-class or elite blacks).
Finally, the incremental and diffuse way the war on crime was waged made it difficult for some African American leaders to appreciate the impact of the choices they were making. Mass incarceration wasn’t created overnight; its components were assembled piecemeal over a forty-year period. And those components are many. The police make arrests, pretrial service agencies recommend bond, prosecutors make charging decisions, defense lawyers defend (sometimes), juries adjudicate (in the rare case that doesn’t plead), legislatures establish the sentence ranges, judges impose sentences within these ranges, corrections departments run prisons, probation and parole officers supervise released offenders, and so on. The result is an almost absurdly disaggregated and uncoordinated criminal justice system—or “nonsystem,” as Daniel Freed once called it.
Although the existence of this diffuse structure is not news, we have yet to comprehend how the lack of coordination has contributed to the growth of our carceral system. In a tough-on-crime era, no single actor doubles or triples the incarceration rate. But as we shall see, if all the actors become even somewhat more punitive, and if they all do so at the same time, the number of people in prison and under criminal justice supervision skyrockets. Yet nobody has to take responsibility for the outcome, because nobody is responsible—at least not fully. This lack of responsibility is crucial to understanding why even reluctant or conflicted crime warriors (which some African Americans were and are) become part of the machinery of mass incarceration and why the system continues to churn even to this day, when its human toll has become increasingly apparent.
This book is an account of a city in crisis, where rates of crime and violence rose to unprecedented levels. It explores the acts and attitudes of African American citizens and leaders—of men and women like Judge Walker. When he locked Brandon up, I was furious. Yet in the course of my research, I encountered many people like the judge, and I have come to better understand their motives. I have tried to tell their story fairly, describing the relentless pressure they were under to save a community that seemed to be crumbling before their eyes.
This is also a book about my clients, men and women like Brandon. They, too, struggled with limited options. They made mistakes and sometimes harmed others. But they deserved better than the criminal justice system in which they were trapped.
* Throughout this book I have changed the names of individual clients and the other lawyers and judges involved in their cases.