American punitiveness—in our policing, courts, prisons, and law—can’t be fully understood outside the context of white supremacy. Louisiana’s state penitentiary is on the site of a former plantation called Angola, so named because that was where its slaves came from; black men in bondage continue to farm the land. And the incarceration rate for black men in the US is an astronomical 2,207 per 100,000, nearly six times the rate for white men and higher than in South Africa under apartheid. In recent years, videos of lethal police violence against unarmed African Americans have become a constant on TV and online, making the problem virally visible.
Two new books, part of an ongoing bumper crop of necessary writing on criminal justice in the US, explore the relationship between black America and our steroidal punishment system. James Forman Jr. and Paul Butler are both lawyers turned academics who regularly publish in legal journals and the mainstream press. They combine scholarly erudition with a practical knowledge of how the system works, writing with hard-won clarity about prosecutors, judges, defense attorneys, witnesses, victims, and offenders. Approaching the same broad subject, both have produced immensely valuable books written from very different perspectives.
One of Forman’s many talents is his ability to make radical, unsettling points in the calmest of voices. For example, his 2009 article “Exporting Harshness” makes a convincing case that the so-called excesses of the war on terror are not aberrations. They are, he argues, fairly consistent with the norms of the American penal system, and if they have been harder to ignore, that’s because they have occurred in places like Abu Ghraib and Guantánamo Bay, where they have attracted press attention and international outrage. Although journalists have described domestic law-enforcement abuses as the war on terror “coming home” and adopted CIA terms like black site to describe police torture facilities in Chicago, Forman suggests it would make more sense to refer to Abu Ghraib as a Mesopotamian Rikers Island.
In his bracing (but always generous) 2012 critique of Michelle Alexander’s best seller The New Jim Crow (2010), Forman takes on an even more firmly established piece of conventional wisdom. Alexander’s thesis has become dogma among liberal criminal-justice reformers: Namely, mass incarceration is driven by a racist backlash against civil-rights advances, carried out under cover of the war on drugs. Her argument rests in part on the widely held belief that most inmates are nonviolent drug offenders, but Forman points out that only about 25 percent of our prison population fits this description. While it’s undeniable that racism is one of the most powerful engines of our punitive state, Forman asserts that the metaphor of mass incarceration as neo–Jim Crow is limited: “In emphasizing mass incarceration’s racial roots, the New Jim Crow writers overlook other critical factors,” such as the steady rise in violent crime rates from 1960 to the early ’90s and the broad support for disciplinary overkill in overwhelmingly white places like Idaho and Wyoming, which have also seen a steep climb in incarceration rates. According to the Bureau of Justice Statistics, about 35 percent of the nation’s prisoners were black in 2015. Though that’s an undeniable overrepresentation of black America’s 13 percent share of the overall population, it means the other 65 percent of US prisoners were nonblack. As Forman writes, “That’s a lot of ‘collateral damage.’”
White resentniks like Megyn Kelly and Bill O’Reilly like to accuse black activists and elected officials of being indifferent to violent crime in black neighborhoods, which, like most violent crime, is committed within an ethnic group rather than outside it. But Forman shows that black politicians and community leaders have long been consumed with questions of crime and safety. In Locking Up Our Own, Forman looks at Washington, DC, where he clerked for the US Supreme Court before spending six years as a public defender, and examines how the city came to implement a series of harsh criminal-justice policies beginning in the ’70s. His history lessons scramble standard expectations of politics, Left and Right, black and white. For example, the hiring of more black police officers was once a major civil-rights demand, and one that seemed to make enormous sense. The thinking was—and among many remains—that this would not only give black officers a middle-class footing in decent-paying police jobs but also end the abusive treatment of black citizens. But “ultimately, in practice, these goals were often unrelated,” notes Forman.
He makes the motivations of DC’s black political leaders—people like city-council member Douglas Moore, DC Superior Court judge John Fauntleroy, and the District’s first black US attorney, Eric Holder—perfectly and tragically clear. Analyzing the reformist drive to decriminalize marijuana in the District, which ended in failure in 1975 after months of campaigning, Forman shows that no amount of public-health evidence could convince a critical mass of DC’s black elected officials that cannabis was not a “gateway drug” to addiction and crime. The black civic leaders who opposed decriminalization were not programmatically “conservative” or especially punitive, Forman stresses. Rather, “These leaders regarded themselves as the guardians of the black community, and especially of its young people, whom they were determined to protect from the dangers of drug use.”
This well-meaning notion had disastrous unintended consequences, as did many other measures designed to stop DC’s violent crime wave of the ’70s and ’80s, from increased penalties for firearms possession to the use of “pretextual traffic stops,” a police tactic (supported by Holder) intended to get guns off the street by granting police the power to search pretty much any driver. The result was an upsurge in arrests for mostly petty crimes, especially drug possession, in black neighborhoods. These policies derailed countless lives—their targets lost jobs and incurred the lasting damage of permanent criminal records.
While the book’s main plot arc outlines the tragedy of incrementally escalating punishment, Forman also criticizes today’s liberal reformers for their focus on nonviolent drug crimes, often at the expense of the 53 percent of the nation’s state prisoners who are locked up for violent offenses. Forman recognizes that our punitive state apparatus must be taken apart as it was built—brick by brick—starting with what’s easiest. But if every decarceration measure is washed down with a vilification of people whose violent offenses supposedly make them more deserving of punishment, then “criminal justice reform’s first step—relief for nonviolent drug offenders—could easily become its last.” What then is the appropriate response to a violent offense? Forman answers this difficult question with the story of one of his former clients, a black kid who held up a black middle-aged man at knifepoint when he was just shy of his sixteenth birthday. Thanks in large part to the author’s own excellent lawyering, the teenager was given a second chance, got plugged into a carpentry program for at-risk youth, and was allowed to unruin his life. The story is a powerful finale to Forman’s book, and it is all the more urgent now, as national urban-homicide rates have increased over the past couple of years: The argument for transforming our abominable justice system should not be predicated on a permanent decline in crime rates.
Throughout Locking Up Our Own, Forman stresses that the embrace of maximum-punishment approaches by DC’s black political class should not let nonblacks off the hook. Black elected officials have typically favored an “all-of-the-above strategy” to fighting crime, Forman writes, which includes providing youth services, jobs, and decent health care and housing. But as he makes clear, racism—as well as the white majority’s resentment of nonpunitive government spending—has played a key role in making expanded police powers and harsher sentences the most readily available options:
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. . . . Racism narrowed the options available to black citizens and elected officials in their fight against crime.
Although Forman’s book is longer on diagnosis than prescription, he does offer some ideas about what’s needed to transform the system: pretrial drug-diversion programs (preferably administered outside the justice system altogether, as they are in Portugal); better funding for public defenders (a rare area in the justice system where the federal government could make a major difference); more judicial discretion and the elimination of mandatory minimums; restoration of voting rights to felons (even while incarcerated); and, for released offenders, employment opportunities and institutional support rather than a life-wrecking stigma. “None of this will be easy,” Forman dryly notes. But his clear-eyed look at the incremental—and never fully intentional—buildup of harsh punishment practices in DC offers hope: Perhaps the system could be consciously transformed, step-by-step, even if it takes a generation or more.
The enduring punishment of black men is also the subject of Chokehold by Paul Butler, another public intellectual with zero time for easy optimism. He is a radical critic of the empty promises of liberal proceduralism in criminal justice, especially in dealing with ongoing racial disparities. A former federal prosecutor, Butler wrote an essay for the Yale Law Journal in 1995 arguing that black juries should nullify many criminal verdicts against black defendants, which earned him a 60 Minutes segment and landfills’ worth of apoplectic correspondence. The first chapter of his previous book, Let’s Get Free, is an account of how a mentally disturbed neighbor’s false allegations led to his own arrest and prosecution—and eventual acquittal—and highlights the many difficulties that a black man faces, even if he’s a prosecutor himself, when confronted with criminal charges. It is a masterpiece in the literature of American criminal justice.
Chokehold is explicitly intersectional in its focus on black men and their victimization by the criminal-justice system, as both African Americans (disproportionately incarcerated and more likely to get longer sentences than nonblacks) and men (punished in greater numbers and more harshly than women). At the same time, Butler is at pains to distinguish his approach from “black male exceptionalism” as well as the rhetoric that “black men are an ‘endangered species,’” which he believes further pathologizes them and mystifies the crisis. His focus on black men comes with a great deal of peripheral vision: He argues, for instance, that programs such as the My Brother’s Keeper initiative launched by President Obama should always be matched by programs to help black women, who by some important measures, like income, are worse off than their male counterparts.
While Forman’s book is a fine-grained historical narrative about one city, with most of its big ideas implicit, Butler engages directly with thinkers and concepts from critical race studies and other social theories, from Derrick Bell to Michel Foucault to Kimberlé Crenshaw. Each chapter presents a sequence of well-honed micro-essays that are typically about seven hundred words long, sometimes progressing in a straight line, sometimes by knight’s moves. He follows his subject to all the disturbing places the evidence takes him: the fact that even white guys with stereotypically “afrocentric” facial features get harsher sentences; the sexual humiliation of stop-and-frisk pat-downs; the general uselessness of Department of Justice interventions into local police departments; the way a handful of US Supreme Court decisions have granted the police “super powers,” so that our laws now act more as a liability shield for state violence than as a check against it; how even a well-intentioned “Ban the Box” campaign to eliminate criminal-history questions from job applications has resulted in harm to black men’s employment chances by allowing employers to give free rein to their prejudices.
Butler doesn’t flinch from facts that many reformers prefer to avoid. While it’s true that drug-use rates are broadly similar across racial groups (a key part of Alexander’s New Jim Crow narrative), Butler points out that offending rates for violent crime are higher among black men, even if the vast majority of black men have never been convicted of a violent crime. Skeptical of reformism in general, Butler joins Angela Y. Davis and others in calling for the abolition of the whole punishment apparatus. This is perhaps more prosaic than it sounds. As Butler explains, pursuing an abolitionist agenda does not mean emptying every prison overnight but rather steadily transferring resources away from police and prisons and toward education (e.g., replacing school security guards with guidance counselors), employment, and mental-health care—a similar set of solutions to those proposed by Forman.
Occasionally, Butler’s approach shows the limits of trying to understand American punishment primarily through the lens of racial inequality. For example, he makes the common claim that in contrast to the crack epidemic of the 1980s, the current opioid-abuse crisis—whose victims are predominantly white—is treated as a public-health problem. And while it’s true that, anecdotally, a sprinkling of police precincts have taken steps in this direction (and that policy elites now use more humane rhetoric), we are still light-years away from a public-health approach that doesn’t involve cops and courts. District attorneys across the country are expanding the criminalization of opioids, charging users with felony child neglect and dealers with homicide. And Florida, our third-largest state, just enacted a slew of mandatory-minimum sentence laws in a bill that makes little distinction between run-of-the-mill users and dealers. This bill passed despite the protestations of reform advocates on both the right and left.
There can be little doubt that the historical grip of antiblack racism is the single biggest factor in American punitive overreach. At the same time, even if all racism were magically leached out of the system, the racial disparity in punishment would likely remain large. This is due, in part, to the gap in offending rates that Butler forthrightly acknowledges, as well as the long-standing racial inequalities outside the justice system, from housing to the labor market.
In the growing movement to rectify the administration of American criminal justice, it is not always clear what racial equality should mean: a leveling down of black punishment or a leveling up of white punishment, or perhaps both, meeting in the middle? Lest the question seem absurd, bear in mind that in 1992, the Minnesota legislature decided to close the gap between sentences for possession of crack and powder cocaine—a disparity deemed illegally racist under state law—by jacking up the penalties for powder cocaine, not by softening the penalties for crack. The blanket application of unjustly harsh laws is justice of a kind, and equality of misery is one kind of equality. As Forman points out, a 2014 poll by the Sentencing Project shows that 73 percent of whites think the criminal-justice system doesn’t punish people harshly enough; at 64 percent, black opinion isn’t far behind. How many Americans would be at ease with a ferociously punitive society as long as the punishments were inflicted in a racially proportionate manner?
Chase Madar is the author of The Passion of [Chelsea] Manning: The Story Behind the Wikileaks Whistleblower (Verso, 2013) and recently taught a seminar on legal theory at Wallkill Correctional Facility through NYU’s Prison Education Program.