Black lives matter. To do those lives justice, should we exhibit sympathy for disproportionately black criminal suspects, defendants, and convicts, or should we fight crime more aggressively in poor black neighborhoods? Can we do both? The United States is home to 5 percent of the world’s population but 25 percent of its prisoners—and a disproportionate number of those prisoners are African-American. Today African Americans are seven times as likely to be in prison or jail than whites.
It’s now conventional wisdom among racial justice advocates that callous or downright racist white politicians and police forced tough-on-crime policies on powerless black communities. But in the 1970s, 1980s, and 1990s, as a violent drug trade snuffed out or ruined countless black lives, more assertive policing in black communities was considered a civil rights imperative. Law professor and former public defender James Forman, Jr., tells this more complicated story in his surprising and insightful new book, Locking Up Our Own: Crime and Punishment in Black America.
“This was not a story in which a white majority, acting out of indifference or hostility to black lives, imposed tough criminal penalties that disproportionately burdened a black minority,” Forman writes. Instead, black communities themselves, desperate for relief from a plague of drugs and drug-related crime, demanded law and order: “African-Americans have always viewed the protection of black lives as a civil rights issues, whether the threat comes from police officers or street criminals.”
Initially, the War on Drugs had the support of civil rights leaders and black politicians desperate to stop heroin, PCP, crack cocaine, and the turf wars and violence these drugs brought to minority communities. In the early 1980s black newspapers such as The Los Angeles Sentinel called for drug dealers to be “tarred and feathered, burned at the stake, castrated . . . .” Jesse Jackson, Jr., seconded the emotion, insisting in 1988, “No one has the right to kill our children. I won’t take it from the Klan with a rope; I won’t take it from a neighbor with dope.” And in the 1990s, as U.S. Attorney for the District of Columbia, Eric Holder, Jr., equated tough anti-crime measures with civil rights, asking: “Did Martin Luther King successfully fight the likes of Bull Connor so that we could lose the struggle for civil rights to misguided and malicious members of our own race?” Under zero-tolerance policies embraced by many black political leaders, casual drug users were condemned along with drug kingpins: For instance, in the 1980s, Washington, DC Mayor Marion Barry threatened the confiscation of assets and long prison terms for anyone “caught with half a gram of cocaine . . . [or] with one marijuana joint.”
Today it’s clear that the dramatic increase in the American prison population during the late 20th century is a profound social and racial injustice. But the willingness of civil rights leaders and black politicians to countenance it suggests that it is not simply an instrument of white supremacy, motivated by racial hostility and indifference to black suffering. Why did so many Americans of all races come to see lawbreakers as irredeemable villains, rather than as fellow citizens who had made mistakes? Forman’s skillful analysis of the rise of tough policing in Washington, DC suggests an answer.
First of all, America experienced a pronounced and prolonged increase in crime during the 1960s and 1970s. Criminologists argue about precisely what caused it, but the trend accelerated in the 1960s as the unrest of the counterculture collided with the long hot summers of racial unrest. This was the era of the Kennedy assassinations, the Symbionese Liberation Army, which killed a black Oakland school superintendent with hollow-point bullets packed with cyanide, and the telegenic Black Panthers—equal parts political movement, vigilante group, and criminal gang—who organized armed patrols of the streets of Oakland. By the end of the decade, voters had had enough and Nixon won the election on a law-and-order platform that set the tone for the events in Locking Up Our Own.
Race certainly played a role in dehumanizing the growing number of incarcerated Americans, but an exclusive focus on race misses the importance of the pervasive sense of disorder and menace in disrupting empathy for people on the wrong side of the law. Lawlessness and violence encouraged the law-abiding American bourgeoisie of all races to support increasingly punitive forms of law enforcement. African Americans living in crime-ridden neighborhoods were as likely to condone rough, “Dirty Harry”-style justice as were suburban whites. Forman tells the story of Washington vigilante librarian Tony Hillary, pictured with a determined scowl and pistol in each hand, who railed against ineffective police and patrolled the streets of Washington promising “retaliatory measures” against drug dealers: “[W]e’re going to shoot to kill.”
Indeed, the 1971 film Dirty Harry itself, now notorious for glamorizing police brutality, suggests racially mixed support for no-holds-barred anti-crime measures. Detective Harry Callahan’s arch-nemesis in the film is not a black radical or inner-city gang member but a white racist sociopath,“Scorpio,” who, in the beginning of the film, threatens to kill “a Catholic priest or a nigger.” Scorpio indeed kills a little black boy and, after Callahan’s unauthorized search of his home uncovers the murder weapon, Scorpio stays out of jail by exploiting legal procedural rules to exclude the evidence of his crime. Dirty Harry resonated with audiences frustrated with a “revolving door” criminal justice system that released dangerous offenders back into society—a revolving door that “many African-American observers,” according to Forman, “[believed] spun fastest for criminals who victimized blacks.” Dirty Harry tapped into anxieties about crime and violence that united Americans of all races.
The hard-working police officer thwarted by bureaucratic red tape and legal chicanery became a leitmotif of police dramas of the 1970s and 1980s. The late Harvard Law School Professor Bill Stuntz argued in The Collapse of American Criminal Justice that criminal procedural rights developed by the Supreme Court in the 1960s—such as the exclusion of evidence obtained through procedurally flawed searches—may have inadvertently encouraged the law-and-order crackdown of the 1970s, 1980s, and 1990s. If the system routinely let the guilty go free due to legal technicalities, the public demanded tougher sentences for those who were convicted to make up for it.
More importantly, the increased cost of procedurally complex trials and the difficulty of securing a conviction led prosecutors to rely ever more heavily on plea agreements that eliminated the need for trials altogether. Meanwhile, longer potential sentences gave them the leverage to strike harder bargains with suspects. Today, it is estimated that over 90 percent of all convictions are the result of plea bargains: The vaunted trial-by-jury, presumption of innocence, and the procedural safeguards established in the 1960s are, for most suspects, only a cruel mirage.
Even as support for the War on Drugs waned in the black community, zero tolerance for gun-related crimes remained popular. Forman notes that in the early 1990s, Eric Holder, Jr., advocated the use of pretextual traffic stops and searches to uncover concealed weapons—a version of the now-infamous “driving while black” policing. Holder acknowledged that black drivers would be stopped disproportionately, but pointed out that, as Forman relates to us, “94 percent of black homicide victims were slain by black assailants.” Essentially, Holder suggested that when enough is at stake, it’s acceptable to burden racial minorities—young men in particular—with a disproportionate share of the cost of law enforcement.
Those costs are tragically high in the United States. According to Berkeley Law Professor Franklin Zimring, author of When Police Kill, African Americans are 2.3 times more likely to be killed by police than are whites. Worse yet, American police kill much more often than police in other countries because of the riskiness of American policing: “The threat of lethal attack is a palpable part of being a police officer in the United States,” Zimring writes. American police are 25 times more likely to be killed in the line of duty than police in the United Kingdom and 40 times more likely than police in Germany—a difference explained almost entirely by the availability of firearms. Guns are used in 90 to 97 percent of all fatal attacks on police and police respond to this risk with preemptive lethal force: According to Zimring, roughly 60 percent of the roughly 1,000 civilians killed by American police every year are armed with a gun or something that looked like a gun.
Forman observes that today’s militarized, SWAT-style policing was, at least in part, a reaction to heavily armed criminals who routinely outgunned police. In a poignant glance at lost opportunities, Locking up Our Own quotes Washington, DC Delegate to the U.S. House of Representatives and gun-control advocate Walter Fauntroy, who hoped in 1975 that “[a]s handguns disappear from the national scene, this nation and this city may approach an era of domestic tranquility . . . where even the police do not carry guns.” Of course, precisely the opposite happened: “[P]olice officers began seeing themselves outgunned by teenagers. In response, the police armored up . . . .” By the early 1990s police departments had begun deploying high-capacity automatic weapons, military assault vehicles, and combat tactics in an ongoing war on crime and criminals.
Rising crime, social dislocation and unrest, increasingly violent drug turf battles, the proliferation of firearms, and frustrations with what was widely perceived to be an overly permissive criminal justice system—all of these inspired a series of new policies, law reforms, and law-enforcement practices that combined to exacerbate the injustices—and racial inequities—of law enforcement. Forman argues, “[m]ass incarceration is the result of small distinct steps, each of whose significance became apparent . . . only when considered in light of later events.”
The same is true of police violence. Changes in law enforcement tactics and priorities in the late 20th century victimized African Americans not by design, but because African Americans were—and are—disproportionately vulnerable to them: concentrated in high-crime neighborhoods where aggressive policing is the norm, socialized and conditioned to react to police in ways that inspire suspicion rather than trust, disproportionately involved in grey markets that entail minor transgressions, and unable to afford the legal services that would allow them to take advantage of procedural safeguards and legal rights.
Even those who benefit from excellent legal services can find themselves in dire straits, however. For instance, Forman describes the plight of his own clients, many of whom faced the choice of accepting long prison terms as part of a plea bargain agreement or facing the risk of even longer sentences if they went to trial. During one plea negotiation a prosecutor insisted on prison, pointing out that the accused had already been through rehab and reoffended, proving that drug rehab programs “don’t work.” Forman rejoined: “So what? [My client] has already served one mandatory prison sentence [too] . . . our system never treated the failure of prison as a reason not to try more prison.”
A good point, but of course much depends on what we mean by “failure.” Although the progressives of the 19th century believed that well-designed penitentiaries would—as their name suggests—encourage their charges to repent and abandon crime, few today still defend prison based on notions of rehabilitation. Indeed, many insist that prison is actually counterproductive or “criminogenic” because much of what prisoners are exposed to on the inside is the culture of law-breaking. The unspoken consensus is that the real purpose of incarceration is simple quarantine: Police and prosecutors strive to get law-breakers “off the streets”—not to reform them. There’s no doubt that prison “works” for this purpose. If popular support for mass incarceration reflects the desire to quarantine violent and potentially violent members of the underclass, then its failure to rehabilitate is beside the point.
The fear that criminal justice has become little more than a policy of quarantine is the premise of Michelle Alexander’s The New Jim Crow—a required citation in discussions of mass incarceration. Forman duly acknowledges her contribution to activism opposing the War on Drugs, but while Forman and Alexander share a justified sense of moral outrage at the crisis of mass incarceration, there are some tensions between their respective analyses. Forman notes that drug crimes account for only a fraction of the incarcerated: “20 percent . . . [so] even if we decided to unlock the prison door of every single American behind bars on a drug offense . . . we’d wake up to a country that still had the world’s largest prison population.” This matters because the case against incarceration is strongest with respect to such non-violent offenders: Drug offenses are arguably “victimless crimes” (as well as crimes that a significant percentage of well-educated and prosperous whites regularly commit with impunity).
The focus on non-violent drug offenders also follows naturally from the conviction that mass incarceration is a new form of state-sanctioned racial segregation: Prison isolates thousands of harmless black people just as Jim Crow laws did. Hence, the disparity in Federal sentencing guidelines for possession of crack as opposed to powder cocaine is Exhibit A in the case that mass incarceration is a disguised form of de jure racial segregation.
But even the crack/powder disparity is understandable—if not defensible—when one recalls the violent crack cocaine trade of the 1980s and early 1990s. Crack and powder cocaine may have been similar with respect to their effect on users, but they were quite different with respect to the networks of distribution and sale. The Wall Street stockbroker who hoovered up his bonus in white lines was no less stoned—and no less culpable—than the inner-city resident who torched a $5 rock at a nightclub, but, as Forman points out, the crack trade “was extraordinarily violent. Some of the people involved had no connection to violence, but . . . pacifists didn’t survive for long.” Accordingly, “advocates [who focus on non-violent drug offenders] are pursuing an approach that excludes not just the majority of prisoners, but even the majority of incarcerated drug offenders.”
In the book’s final pages, Forman presses the necessary but much more difficult case for leniency with respect to violent offenders. They too, Forman reminds us, are more than their worst deeds. If criminal justice is to be more and better than simple quarantine, we will need to overcome not only racism, but also an ingrained and pervasive demonization of lawbreakers generally. By way of comparison, consider our current treatment of—disproportionately white—sex offenders who face increasingly long sentences and must register with the state and carry the stigma of their crime for the rest of their days. The popular image of the drug dealer of 1987 is not so different from that of the sex offender of 2017—an irredeemable menace to society, defined by his crime and deserving of no mercy.
In the 1980s, black communities insisted that drug dealers be “tarred and feathered, burned at the stake, castrated.” African Americans complained of “courts [that] don’t give a damn about the victims . . . [and] let the perpetrators of unconscionable violence go free to terrorize minority communities again and again,” demanding an end to leniency for drug crimes. Today, activists insist that police, prosecutors, and judges don’t take sex offenses seriously because of indifference to their juvenile and female victims: In Northern California there is a ballot initiative to remove a judge for being too lenient in sentencing a convicted sex offender. It is a valid complaint—as was the claim that whites tolerated “revolving door justice” when the door opened onto a black neighborhood.
There are good reasons to isolate and stigmatize violent drug dealers and violent sex offenders: retribution for their victims and deterrence of potential future crimes. Those good reasons explain why decent people—as well as callous bigots—supported the policies that have filled our prisons. Forman reminds us that reversing the injustice of mass incarceration will not be as easy as rejecting irrational prejudice and overlooking victimless crimes; it will require offering people who have done serious harm to innocent people alternatives to prison, welcoming them back into society as equal citizens who have made mistakes but paid their debt to society, truly treating them as better than their worst decision.
The title of Forman’s book contains an ambiguity few have noticed: Is it only African Americans who are locking up our own, or all Americans? The belief that simple racism is to blame for mass incarceration and police violence is, oddly, both too pessimistic and too optimistic. Its optimism lies in locating the failures and cruelties of American criminal justice exclusively in racism, as if Americans could not have been as unforgiving of people who shared their skin tone. But Forman’s history suggests that the fear of crime and the thirst for vengeance joined, rather than divided, the races.
At the same time, attributing the injustices of law enforcement to racism is too pessimistic: If mass incarceration is the expression of an atavistic racial prejudice that decades of civil rights activism has done nothing to change, then there is little hope of reversing the trend any time soon. As disturbing as it is, Forman’s account is also, in its own way, more hopeful: He suggests that the tragedy of mass incarceration was the unintended consequence of hard decisions made under pressure, driven less by irrational prejudice than by understandable fears and concerns. If decent people—along with punitive bigots—contributed to mass incarceration, decent people can change course and contribute to a solution.