Locking Up Our Own

Locking Up Our Own:  Crime and Punishment in Black America

By James Forman Jr.

Published 2017

Read Nov 2018

Forman divides his thoughtful and thought-provoking book into two parts:  Origins and Consequences.  Having read Michelle Alexander’s The New Jim Crow:  Mass Incarceration in the Age of Colorblindness, I already was aware of at least some of the consequences of arresting and convicting persons on drug possession:  an extraordinarily large percentage of the black population behind bars, sometimes for decades, lives forever damaged for pleading to felonies to avoid being jailed and losing their children to the foster system being but two.  This book tells of similar outcomes but provides a new perspective on some of the origins of the evolution of drug laws that had these impactful and unintended consequences.

The author is a son of former SNPP (Student Nonviolent Coordinating Committee) members, schooled in NYC and Atlanta schools, and a graduate of Brown University and Yale University Law School.  After clerking for Sandra Day O’Connor when she was on the Supreme Court, he was a public defender in Washington, DC from 1994 to 2000 and co-founded the Maya Angelou School which opened in 1997 to 20 students selected from the DC court system to provide them education, counseling, and employment opportunities.  These experiences provided him a front-row seat in a majority black city with a black mayor, a black police chief and majority black police department, black judges, black bailiffs, black court reporters, and black lawyers, including Eric Holder, the US Attorney General for DC.  He taught law at Georgetown University from 2003-2011 and is currently a Professor of Law at Yale University.  His training as a law clerk and as a scholar is apparent in this book which is well referenced and indexed.

In this book he explores a painful question:  how did a majority-black jurisdiction end up incarcerating so many of its own?  The book often focuses on laws enacted in Washington, D.C. and their corresponding consequences but the author ties this together well with trends in law enforcement, drug law evolution, and their impact in other states and nationally as well.

I provide here some highlights of what I learned from this book:

• The Home Rule Act was passed by Congress in Jan 1975 giving, for the first time, the ability of Washington, D.C. to elect a mayor with substantial executive authority and for a city council with significant legislative power. The city was approximately 70% black at the time.
• In 1972, the National Commission on Marihuana an Drug Abuse published its findings in a report entitled “Marihuana: A Signal of Misunderstanding” which indicated “experimental or intermittent use of this drug carries minimal risk to the public health and should not be given over-zealous attention.”
• Jimmy Carter suggested in 1977 that Congress consider decriminalizing the use of marijuana
• Marijuana was not decriminalized in Washington, D.C. nor in most states nor nationally at this time:
  • The heroin crisis was wreaking havoc in the black community. Crime was escalating as addicts stole to support their habits.  Safety from crime was and remains highly desired.
  • Black church leaders campaigned against decriminalization.
  • A message that marijuana was a gateway drug to harder drugs was spread and heard despite lack of evidence for this.
  • The Black community was hesitant to support legalizing additional drugs that, like alcohol, might “keep black people drugged and down”.
• There was a huge push for increasing the fraction of black police officers in the Washington, D.C. and elsewhere.
  • Blacks were eventually hired into the police department where they found good pay and benefits but continued discrimination and limitations on their authority and where they could police.
  • The fight against discrimination within the police force was a long and hard road but eventually police were promoted into higher ranks and became police chiefs in many cities including Washington, D.D.
  • It was supposed that black police could “tell the difference between criminals and non-criminals” and apply appropriate force when policing. Moreover there was an expectation that black policemen would use their role to help the overall movement for black equality.   In reality, blacks were attracted to the pay, benefits, and stability of the job but didn’t generally join the force with a social agenda in mind.
• Washington, D.C. did pass laws prohibiting sale or use of handguns. This did not slow the use of guns which were widely available across city boundaries. Many black-majority cities considered laws restricting guns but chose against them to prevent their population from being at a disadvantage to whites in the surrounding suburbs.
• As crack cocaine hit the streets, crime rate soared even higher and the murder rate exploded.
• The phenomenon of blacks hurting blacks (most black murders were committed by other blacks; blacks distributed drugs to black; etc) was not ignored. The black community saw safe streets as a primary goal.
• Although political leaders advocated for drug treatment programs, and more beds in the existing ones, and for better health care, schools, job opportunities etc that would hopefully address some of the causes of drug use and crime associated with drug distribution as a one of the few viable “careers” available, drug laws and drug enforcement were seen as the main tools available to make streets safer.
• Eric Holder was US Attorney General for Washington, D.C. and implemented an automobile version of New York City’s famous “stop and frisk” policy. Holder wanted to finding guns in cars.  He knew, and stated such, that there would be a very large number of innocent people stopped.  A consequence was a tremendous amount of fall-out for those who didn’t have guns with then but had small amounts of marijuana.
• The call from politicians for longer minimum and maximum sentences was long echoed by black leadership as a primary mechanism for dealing with the issue.
• Tougher policing and tougher sentences did not stem drug use or crime. The first black Washington, D.C. police chief resigned after the murder rate rose instead despite his efforts otherwise.
• In 2014 a poll of whites and blacks regarding crime and criminal justice policy showed that 73% of white thought that courts in the D.C. area did not deal harshly enough with criminals and 64% of black had the same opinion. Although the racial difference is significant, it is also interesting that 64% of the black population thought criminals were not treated harshly enough although the vast majority of inmates were black.
• The beds available for drug treatment remain insufficient. There is sometimes heard “well person x failed despite their drug treatment program stint so maybe they don’t deserve another chance because it won’t work this time either.”  We rarely hear that “jailing doesn’t work so let’s do less jailing”.
• Marijuana was decriminalized in Washington, D.C. in 2014.
  • Crime had come down dramatically
  • The harm inflicted by marijuana criminalization was now apparent
  • Black ministers now concluded that marijuana was a gateway to the criminal justice system. Previously they voiced an opinion that marijuana was a gateway drug to harder drugs.
• The trend to release federal prisoners convicted of non-violent drug crimes is meant to undo some of the harm inflicted during the height of the 80’s war on crime but may not be enough—it’s too easy to cross the line to “violent” crime accidentally. Also recall most prisoners are in local and state jails, not federal ones.

Not surprisingly the author doesn’t have any known solutions to offer.  He does warn us not to be complacent thinking that we are in the right having a “no tolerance” for those who have committed violent offenses, since violent offenses include any crime committed with any weapon whether it’s used or not.  It’s important to figure out how to help people get past their previous unlawful acts and allow them lives beyond those acts.  This isn’t going to be easy but is worth figuring out.   He challenges us to believe that everybody does deserve a second chance and help in making that chance happen.  We can play a role in this on many levels.  Voting for returning voting rights to felons who have completed their sentence is a meaningful example.  Giving someone committed of a felon a job after they have completed their sentence is another extremely meaningful example.  Do we need to call anyone convicted of a felony a “felon”?  Can we call them a person who has been convicted of a felony instead?  The author tells of a young woman who lost her job simply because she was arrested while on probation even though she was not prosecuted—a fallout victim of Holder’s stop and search policy.  Think about whether it “just makes sense” to not hire felons, to allow them to vote, etc etc.  These “sensible” things aren’t really so sensible-if we believe people shouldn’t be condemned as less than human for life for acts committed in their past for which they have served out their penalty.   We can all play a role in being part of a solution if we are willing to think and have an opinion we form ourselves thoughtfully and not just because someone else has proposed it “just makes sense”….

I strongly recommend this book.  Although it is clear that the author was personally impacted by the stories of his clients and the students his school served, Forman’s language is even-handed and non-judgmental, and his statements are backed up by references from credible, often scholarly, resources.  The notes section forms about 1/3 of the total length of the book.  This book has added to my understanding of the difficult challenges facing the black population in the US, and therefore the entirety of the US, and did provide me a sense that I can be part of the solution if I choose.