Spotlight Exclusives

Black America and the Rise of Mass Incarceration: A Conversation with James Forman Jr.

James Forman Jr., Yale Law School James Forman Jr., Yale Law School, posted on

Mass incarceration, and its implications for African Americans and other communities of color, has become an increasing area of focus for policymakers and advocates. But while African Americans are often viewed simply as the objects or victims of tough-on-crime policy, relatively little attention has been devoted to understanding the views and choices of black political leaders and citizens during the rise of mass incarceration. In his soon to be released book, Locking Up Our Own: Crime and Punishment in Black America, Yale Law School Professor and former public defender James Forman Jr. tries to address this gap by taking “black agency seriously.” Spotlight recently spoke with Forman to discuss his new book, its implications for understanding and reforming our criminal justice system, and how these issues intersect with poverty and opportunity. The conversation has been lightly edited for length and clarity.

Can you talk about the factors that led to the rise of mass incarceration and punitive crime policy and how African American leaders fit into this narrative?

The story of what happened in our criminal justice system over 40-50 years, producing what is now called mass incarceration, is really the story of thousands of actors, disaggregated decisionmakers across the criminal justice system.

Even calling it a system is a misnomer. We have police who make arrests, legislators who set sentencing ranges, probation officers who supervise people on release, corrections officers, and so on. The story, in my opinion, is if everybody becomes somewhat more punitive in their sphere, the system ramps up, almost like an assembly line or boulder. When everybody starts pushing somewhat harder, this collective momentum leads to increased speed. It wasn’t one thing, it was thousands of things over an extended period.

My book specifically explores the role of black America, African American elected officials who came in after the decline of Jim Crow with the first chance to hold elected office. Many of these leaders came out of the civil rights movement, and they came during a time when crime was rapidly rising.

This new political class comes from a history of underenforcement and a lack of protection as well. One of the vignettes that was very significant in the mind of many activists was that when federal officials went looking for the bodies of Chaney, Goodman and Schwerner in Mississippi they ended up first finding the bodies of two blacks that no one had even bothered to look for.

These new leaders felt that policing and protection was a public good and African Americans deserved their share. Black elected officials cared desperately about black lives. Heroin was destroying cities, violence was rising, and newly elected officials took the protection of black lives seriously

Chapter two of my book is called “black lives matter.” In the mid-1970’s, making black lives matter meant making black lives “expensive.” The book is a tragedy because it is a story of people who care, but end up making a set of decisions which help to produce the horror that is mass incarceration.

Our website is focused on poverty. One of the issues you explore in the book is the divide between the actions of upper-class African American leaders and policymakers and lower-income African Americans who often bore the brunt of a tougher criminal justice system? How has this divide played out?

It is a huge and complicated issue. One concept in the black community is that of linked fate. Like other oppressed minority groups, there is a sense of collective fate that extends across class lines. I don’t dispute that.

But there are also things that put pressure on this linked fate. One of those is crime and our criminal justice system.

Middle-class African Americans have one of the highest rates of criminal victimization. Not only do they have things that can be stolen, but because of residential segregation, members of the black middle class live closer to poorer and more violent neighborhoods.

Additionally, over the last thirty years a huge divide has emerged in terms of “who goes to prison.” One of the things people miss about mass incarceration is that it is overwhelmingly happening to lower-income African Americans. The incarceration rate for blacks that have gone to college has actually not gone up. An African American without college degree is now ten times more likely to be incarcerated than one with a college degree.

Even in black America, there is a divide between who is writing and executing the laws and who is suffering. This divide I’ve just described is another reason why historically the focus on racial profiling has been greater than mass incarceration. Racial profiling cuts across class lines. It can happen to any black person. Incarceration happens overwhelmingly to poorer black Americans.

Can you expand on this tension between the dual problems of over-policing and under-policing in the black community?

You have a community who throughout its existence has had these two harms of a lack of protection and excessive enforcement visited on it simultaneously. In an ideal world, the folks that came into power would have wanted to deal with both. And many black leaders really cared about both. I have quotes from people arguing for more police and more prisons while also being concerned with policy brutality.

These black leaders were also very focused on what we would call “root cause solutions” to rising crime. Most of the people I write about who supported tougher criminal law also supported more money spent on schools, mental health services, and job training. There was a great desire to respond to poverty with a Marshall Plan for urban America, but black Americans don’t control the instruments of government necessary to make these large investments.

One of the arguments I make in the book is that most black leaders wanted an all-of-the-above approach to crime. What they ended up getting was a one-of-the-above: an increase in policing.

What happens when crime rises again? How do we prepare ourselves to respond more prudently?

Well, we read my book and see how these set of mistakes occurred last time and where we could take a different path.

For example, with drugs, one of my arguments is that we need to look at drugs and addiction as a public health crisis, not a criminal justice crisis. There are tiny decisions made by people who aren’t even crime warriors that pushed us away from the public health realm and into the criminal justice realm.

Looking at where we went in the wrong direction and what would alternate pathways have looked like, we can prepare ourselves for when addiction rises, and crime related to addiction rises, as it is right now with heroin and opioid addictions. We have the option of what we did in the 1980s, which is what Jeff Sessions would like to have us do. We also have the option of doubling down in our investment in mental health services and drug addiction treatment.

How does your understanding of the history of mass incarceration, and the diffuse factors and actors that drove it, inform the way you think about potential solutions for unwinding it?

One way, which we talked about upfront, involves how mass incarceration was a series of piecemeal, ad hoc decisions made by disaggregated decisionmakers. Undoing it will require the same kind of approach.

There isn’t one silver bullet piece of legislation to undo the problem. This means that it is the responsibility of everyone. This includes the private sector where landlords and businesses make decisions on who to exclude from an apartment or hire based on criminal records.

All of us have a sphere of influence as private citizens to unwind this system that has been built up. If we understand it as a series of thousands of decisions made by individuals, we can begin to work backwards. If we do this as a concerted effort, we can chip away at this. Pretty soon, that chipping can become a sledgehammer and then a bulldozer.


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