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…we have created the largest prison system in the world and some of the highest barriers to re-entry and re-employment for people when they get back out… There is no area of our criminal legal system I could point to and say, “We’re good here”.

James Forman Jr

No democracy has ever incarcerated as many people as the United States. To get its incarceration rate down to the global average, the US would have to release 3 in 4 people in its prisons today.

The effects on Black Americans have been especially severe — Black people make up 12% of the US population but 33% of its prison population. In the early 2000s when incarceration reached its peak, the US government estimated that 32% of Black boys would go to prison at some point in their lives, 5.5 times the figure for whites.

Contrary to popular understanding, nonviolent drug offenses account for less than one fifth of the incarcerated population. The only way to get its incarceration rate near the global average will be to shorten prison sentences for so-called ‘violent criminals’ — a politically toxic idea. But could we change that?

According to today’s guest, Professor James Forman Jr — a former public defender in Washington DC, Pulitzer Prize-winning author of Locking Up Our Own: Crime and Punishment in Black America, and now a professor at Yale Law School — there are two things we have to do to make that happen.

First, he thinks we should lose the term ‘violent offender’, and maybe even ‘violent crime’. When you say ‘violent crime’, most people immediately think of murder and rape — but they’re only a small fraction of the crimes that the law deems as violent.

In reality, the crime that puts the most people in prison in the US is robbery. And the law says that robbery is a violent crime whether a weapon is involved or not. By moving away from the catch-all category of ‘violent criminals’ we can judge the risk posed by individual people more sensibly.

Second, he thinks we should embrace the restorative justice movement. Instead of asking “What was the law? Who broke it? What should the punishment be”, restorative justice asks “Who was harmed? Who harmed them? And what can we as a society, including the person who committed the harm, do to try to remedy that harm?”

Instead of being narrowly focused on how many years people should spend in prison for the purpose of retribution, it starts a different conversation.

You might think this apparently softer approach would be unsatisfying to victims of crime. But Forman has discovered that a lot of victims of crime find that the current system doesn’t help them in any meaningful way. What they want to know above all else is: why did this happen to me?

The best way to find that out is to actually talk to the person who harmed them, and in doing so gain a better understanding of the underlying factors behind the crime. The restorative justice approach facilitates these conversations in a way the current system doesn’t, and can include restitution, apologies, and face-to-face reconciliation.

The city of Washington DC has demonstrated another way to reduce the number of people incarcerated for violent crimes. They recently passed a law that gives anyone sentenced to more than 15 years in prison the right to return to court after those 15 years, show a judge all of the positive ways they’ve changed, and petition for a new sentence.

They’ve also moved aggressively in a direction of bringing in restorative justice, with a focus on juvenile courts.

So, although the road is hard, James does see examples of jurisdictions really trying to tackle the core of the problem of mass incarceration.

That’s just one topic of many covered in today’s episode, with much of the conversation focusing on Forman’s 2018 book Locking Up Our Own — an examination of the historical origins of contemporary criminal legal practices in the US, and his experience setting up a charter school for at-risk youth in DC.

Rob and James also discuss:

  • The biggest problems in policing and the criminal legal system today
  • How racism shaped the US criminal legal system
  • How Black America viewed policing through the 20th century
  • How class divisions fostered a ‘tough on crime’ approach
  • Important recent successes
  • How you can have a positive impact as a public prosecutor

Get this episode by subscribing to our podcast on the world’s most pressing problems and how to solve them: type 80,000 Hours into your podcasting app. Or read the transcript below.

Producer: Keiran Harris.
Audio mastering: Ben Cordell.
Transcriptions: Zakee Ulhaq.

Key points

How did we get here?

After the Civil War, first you had black freedom and black emancipation. But right away, especially in the South, but not exclusively in the South, white Americans saw newly freed black Americans as a threat. They saw them as an economic threat. They saw them as a political threat. Again, imagine people that you had kept as slaves and all of the sudden you’re told that they’re supposed to be your equals. They’re supposed to be your political equals. They’re supposed to be able to walk freely.

That wasn’t something that most people were able to tolerate. And so they devised a whole set of laws and set up policing regimes to enforce those laws. So you had situations where African Americans would be stopped for the most minor offenses. The classic one back then was vagrancy. Was just being around, loitering or vagrancy. Being around with no apparent purpose. And they would get taken in and in lots of jurisdictions, the only way you could get released was if somebody came to pay your bond.

And the way then you worked off the money that you owed for the bond was by working for that person. So especially in the South, you had lots of former plantation owners who needed labor. So the police would round up black people for no good reason. The former plantation owner, now landowner, would come and bail them out, bond them out. And then, the black person would owe the plantation owner 100 hours, 200 hours, 300 hours of labor for the privilege of having been bonded out for a crime that wasn’t even a crime.

And so you see there the sort of direct ways in which slavery and the need for black labor produced a style of policing, an approach to policing and a legal system that, in essence, reconstituted the old system but with new language and with new legal justifications.

Black American views on policing and criminal justice

It’s almost impossible to understand or believe in this moment that we live in now. But for most of American history, or for a big chunk of American history, one of the truths of policing in black communities was underpolicing and underprotection. My parents are mixed race. My dad is black, my mom is white. So my dad is from the south side of Chicago, which is a large historically black neighborhood in Chicago. It’s sort of like Harlem in terms of its cultural significance in black America.

And he would tell me that in his neighborhood, when he was a kid, when there was something going on, if a crime was committed… I mean not homicide, but a lot of crimes, they didn’t call the police. And why didn’t they call the police? He said the police weren’t going to come. They weren’t going to come respond to the complaint of a black victim who said they’d been victimized by crime. And if they did come, they were only going to make things worse.

So right there in his comment you see the tensions. They’re not going to respond to us and if they show up they’re going to be brutal.

And so there’s a long tradition and history in this country of white racist police chiefs and sheriffs saying things like… If they were asked about a homicide in a black community they would say, “Well that’s not a homicide. That’s not a murder. That’s another dead black person”. And I’m only using the word black person to cover for the word that they did in fact use, which is not one that I choose to repeat.

So against that history, against that backdrop, you then have a civil rights generation of black elected officials and black police chiefs who came with them. Black police officers first and then later some of them rose up to be heads of the forces. And black legislators, black prosecutors and they viewed it as their mandate and their mission to actually make law enforcement respond to black citizens. To provide the protection that for 100 years had been deprived. The 14th amendment to our constitution guarantees the equal protection of the laws. That goes back to reconstruction. And there’s this idea that black people are not getting protected by the state. So they viewed that protection as being police officers being present. Police officers caring. And in some instances, police officers being aggressive.

One of the reasons my book is a tragedy is that a lot of these black actors that I write about I think had good motivations for the things they were trying to achieve but it happened at a moment where there were other people who had bad motivations. So there were other people who wanted to surveil and harass and oppress black communities. And they seized on the fact that there was black support for some of these things. And then they said, “Aha, aha, black people want it too? All right. Well now let’s double down and let’s triple down on some of these very, very harsh measures”.

So part of my story is how people can want things for different reasons. And one group of people, the black actors in my story for the most part I think sort of wanted this protection with the intention of helping black communities. They were pushing for it unfortunately at exactly the time when people like President Richard Nixon and later people like President Ronald Reagan were pushing for things. And those people did not have the interest of black America at heart.

The role that class divisions played in forming current legal system

I mean there’s so many ways in which this plays out. But maybe at kind of the first level, black Americans who have been in control politically, people who are sort of more likely to come into elected office or to run aspects of government are either, by birth or even if not by birth, have gotten to the point where they are middle class or, even in some instances, may be upper middle class. And what happens then is some of the same instincts towards property possession, protection, a desire for neighborhoods to look a particular way. Some of those same instincts which we know help to make white citizens… I described my block earlier, they would make white citizens call the police force and say, “Hey listen, there’s groups of kids that are gathering and they’re walking up the hill and could you keep and eye on them”? That sort of thing.

So black citizens have some of those same concerns. And so there’s then attention, because on the one hand, there’s a sense of racial identification with the people that are being overpoliced, but on the other hand, there’s a class dis-identification. People are aware that at least from the standpoint of the socioeconomic status, that those people that are being overpoliced really aren’t you.

And so that plays itself out and you see that especially in cities like Washington DC or Atlanta or Chicago or New York where you have substantial African American presence and you have a big black middle class. Again, not big compared to whites but big compared to other black neighborhoods.

And so there’s a thing that writers, political scientists, and others talk about is this idea of respectability politics. So there’s this idea that I’ve made it, and your acting out is a threat to the collective us. And it’s a threat to my status. Because I’ve made it by performing and talking and behaving in a particular way and when you act out you are going to cause white people to look at all of us in a less generous way. And so you talked about good motives earlier and how a lot of the people in the book do have good motives and I think that’s right.

The probably one area where I distrust or am somewhat critical of the motives are the people that are practicing this brand of respectability politics. Because that is very divisive in the black community in a way that I think isn’t helpful.

What are the biggest problems with policing today?

I think there are two central flaws. And I think the remedies have to be directed to these two central flaws. Central flaw number one is that we have too many police and related to that, this is still part of the first one, is that police have too many responsibilities. We use police for all sorts of things that we do not need to use police for. And so we use police to deal with drug addiction, to take one example. And there’s lots of examples of this we see in everyday society. There’s examples of this we see in my book where elected officials… I write about a guy named David Clark who’s a very progressive elected official in Washington DC completely against the war on drugs. But when heroin is surging in the city, he gets inundated with letters from citizens about heroin addicts in public space and dirty syringes and people sleeping on park benches and people gathering on stoops and nodding off and making people feel unsafe. And what does he do with those letters when he gets those letters? Who does he send them to? He forwards them each and every time, not to the department of mental health, not to addiction services, not to counseling and recovery, he sends them to the police chief.

And he does that because he, like many Americans then and today, lacks the imagination to think of the problem of heroin addicts in public space as a problem to which we should send addiction counselors and social workers, and also the government lacks the funding and the resources and the infrastructure for that. So some of those departments that I just mentioned don’t even exist. But more money goes to the police department and more requests go to the police department to solve that problem. So number one is we have too many police and we have police doing too many things. And then the second central problem at a high level is that there is too little accountability for police misbehavior and for… Whether you want to call them… I don’t like the term “bad apples” particularly because I think it suggests that it’s too limited a number. But whoever the individuals are who are violating people’s rights and who are being too aggressive and at some times being brutal. It’s too hard to get anybody fired. It’s too hard to get anybody prosecuted and it’s too hard to keep those people off the force of another department.

In the rare instances when people are terminated, then they often just get rehired by a neighborhood department. So those two things: too many police doing too many things and too little accountability for police violence and police abuse of citizens, I think, are the central problems we face in this country.

Having a positive impact as a public prosecutor

I became a public defender after law school because I wanted to fight mass incarceration. And I thought that the best way to do that was to represent individual people charged with crimes and make sure that they got the best possible defense possible. And I still believe, I think if I were graduating from law school today, that’s still the job that I would take. So when I made the case for becoming public prosecutors, it wasn’t to say instead of being public defenders, but just rather that, 25 years ago, I think it would have been extremely hard to become a prosecutor and do anything other than follow the most kind of punitive, lock them up sort of approaches because the political pressures and the cultural forces, everything was so powerfully running in that direction. But today we’re in a moment where there are, in some cities around the country, there are prosecutors who have run on campaigns of ending or reducing the ferocity of the drug war, of ending mandatory minimums, of not asking for people to be locked up before trial, just because they’re too poor to post bail.

And so those prosecutors, those lead prosecutors, what they need is they need some reform-minded individuals who want to change the system to come in and help them staff up their offices. Because it’s the same thing that we talk about with a reform-minded police chief. You can have whatever ideals you want to have at the top, but unless you have people in your office to implement them, you’re not going to be able to actually create change. So when I talk to my law students now, I encourage them, of course, to become public defenders. But for those that are drawn to become prosecutors, I tell them, “Well, seek out those individuals who are wedded to change. That are committed to an approach to prosecution that reduces incarceration rates rather than increases them, and go do that work”. Because prosecutors are the most powerful actors in the system. There’s no question about that. And so you can, potentially in the right office, under the right circumstances, you can, I think, have a profoundly positive impact. It’s not something that I ever thought I would have said a decade ago.

Articles, books and blog posts discussed in the show

Professor Forman’s work

Everything else

Transcript

Rob’s intro [00:00:00]

Robert Wiblin: Hi listeners, this is the 80,000 Hours Podcast, where each week we have an unusually in-depth conversation about one of the world’s most pressing problems and how you can use your career to solve it. I’m Rob Wiblin, Director of Research at 80,000 Hours.

Keiran and I have wondered whether to do an episode on US criminal justice reform for a few years. It’s something I’ve had an amateur interest in, and I expect many listeners do as well.

It’s also one of the Open Philanthropy Project’s focus areas. Their Program Officer in the area, Chloe Cockburn has made grants of over $110 million to promote criminal justice reform since 2015.

The recent protests associated with the murder of George Floyd have led to renewed calls for big ways to improve the criminal legal system, and we’ve made two episodes which we’re going to release back to back.

This first interview is with the well known legal academic and author James Forman Jr, who also happens to be the son of the prominent civil rights leader James Forman.

My colleague Howie Lempel, who like James has done some work as a public defender, recommended his Pulitzer Prize winning book Locking Up Our Own, which I found very informative, honest, and frankly, moving. It’s also just really well written, flipping between several different periods in Washington DC’s history without ever becoming confusing.

So I was very glad James agreed to come on the show.

The second interview is with Professor Jennifer Doleac, who we chose because of her extensive knowledge of the economics literature on crime, policing and incarceration.

In particular she has probably looked at every experiment or natural experiment focused on police reform published in economics over at least the last ten years.

I’m glad we did both, because as a result of their different fields and backgrounds James and Jennifer focus on different aspects of the issue, and also seem to disagree on a few things. After relistening to both interviews, I think that makes the combination more informative than either one by itself.

In this interview James and I talk a bit about how US policing compares to that in Europe, but we didn’t want to stop the conversation to look up the specific numbers. To fill that gap I’ve added a postscript at the end of the episode, where I go through some statistics on US police numbers, and spending on police vs incarceration. So stick around for that if you’re interested.

Alright, without further ado, here’s Professor James Forman Jr.

The interview begins [00:02:02]

Robert Wiblin: Today, I’m speaking with Professor James Forman Jr. James is an American legal scholar and the J. Skelly Wright Professor of Law at Yale Law School where he teaches and writes on criminal law policy, constitutional law, and juvenile justice.

He first studied at Brown University before going on to complete a Doctor of Law at Yale in 1992. He then worked as a law clerk, first for William Norris on the Ninth US Circuit Court of Appeals and then for Supreme Court justice Sandra Day O’Connor.

Following that, he became a public defender in Washington DC from 1994 through 2000, during which time he cofounded the Maya Angelou Public Charter School, which aimed to provide kids in violent neighborhoods with high quality education, counseling services, and employment opportunities, and that school continues to flourish today.

Robert Wiblin: More recently he wrote “Locking Up Our Own: Crime and Punishment in Black America”, an examination of the historical roots of contemporary criminal justice practices in the US which won the Pulitzer Prize for general nonfiction in 2018. Thanks so much for coming on the podcast, James.

James Forman Jr: Great to be with you.

Robert Wiblin: I hope to get to talk about your book and how it can improve policing and criminal justice in the US. But first, our traditional opening question is… Well obviously, this is a particularly promising moment for policing and criminal justice reform in the US — what are you working on currently and why do you think it’s important to do?

James Forman Jr: I’m teaching a class this fall that I put together about a month ago after George Floyd’s murder and the protests called “The Police: Reform, Transform, Defund, Abolish”? And my goal in the seminar is to try to figure out what I think should be done to change the nature of policing in the United States and to make that work public. So it will be a traditional seminar, but it’ll also be public facing in that we’re going to try to produce a lot of material that will be available to activists and advocates and policy makers that take the form of “Here are 5 to 10 things that you could do right now and here’s how to get them done. Here’s examples of cities that have done them. Here’s why we think they will make a difference”. And so I’m very excited about that. So I guess that would be number one on my list.

Robert Wiblin:
Yeah, that sounds incredibly useful. And we’ll return to a bunch of those questions about which reform options are best and how to actually get them implemented later on.

How did we get here? [00:04:07]

Robert Wiblin: But first up, I was hoping to talk about how the US ended up with the problems in policing and criminal justice that it has today, which is a big theme in your book, Locking Up Our Own. It seems like a lot of the issues are quite particular to the United States. And I guess I and about half the audience are not Americans. So it’s kind of worth going back to the start to lay out the problem and where it originated.

Robert Wiblin: Just looking at the stats and kind of stylized facts. It seems that by the standards of rich countries, US policing or criminal justice is just more violent and more punitive. And I guess seemingly on his face less effective at preventing crime. And it also seems to have unusually disparate racial impacts, with policing and incarceration, having especially harmful effects on communities of color. Probably more than in most of the countries that I can think of. So how did the US end up being an outlier in these ways do you think?

James Forman Jr: Well I think the first thing you really have to focus on any time you’re talking about, really any issue in the US, but certainly any issue that has a racial dimension, is you have to start with slavery. So we had, in this country, a system in which one race of people bought, sold, beat, bred another race of people for over 250 years. We had that system for longer than we haven’t had that system. So for most of America’s history, we had a system of entrenched racial oppression in law and that was then followed by a period of Jim Crow which is overt racial discrimination in law that was followed for the next 100 years after the end of slavery. So that means that from 1619 until… Maybe you want to pick 1954, which is the Brown versus Board of Education decision or 1963 which is the civil rights movement. For almost all of American history we had this system of racial oppression. And that system hasn’t ended, in the sense that institutions were built up to support that system. And even more importantly, or as importantly in my mind, a set of beliefs and ideologies became adopted in the country.

James Forman Jr: So think about how you would have to rationalize and justify slavery. The only way a person can rationalize and justify it is to set up in your mind a series of lies about the people that you’re enslaving. You have to tell yourself a story that these people are criminal. That these people are violent. That these people are uneducable. And if you do that in a country for 400 years, that doesn’t go away with the election of Obama, or the passage of the voting rights act. So that’s just dominant. But we still don’t talk about it enough in this country.

Robert Wiblin: Yeah. I’ve read that police in the US, at least in some places, were originally set up to basically police slaves and to recapture them when they ran away from their owners. Is that right? Do you think you can kind of trace practices or culture within the police to how they operate today from that?

James Forman Jr: Well that is right. But I guess I’m trying to say something that’s broader than that. Because not all police were… Not all police came out of that tradition. Our country and the way in which we think of black people as either equal or not, as either human or not, as either deserving of protection or not, those beliefs and those ideologies became kind of scripts that became inscribed on our collective consciousness. And so I guess what I want to say is that even good people, even people that want to do the right thing, even people that would be appalled at thinking about the history of slave catchers in policing… Even those people share many of these biases and prejudices. That’s the foundational thing that allows the system to continue as it does.

Robert Wiblin: So there’s this kind of general cultural background of people having stereotypes about African Americans as being kind of unable to take care of themselves and needing to be controlled by other people. I guess looking more recently, to what extent do you think the nature of criminal justice and policing can be explained by kind of white Americans attempt to reconstitute and maintain a system of racial hierarchy after the Civil War and up to the current day to some degree?

James Forman Jr: Absolutely. So that’s the next piece. That’s the next historical piece that you’re helpfully pointing out which is, what you described happened exactly. After the Civil War, first you had black freedom and black emancipation. But right away, especially in the South, but not exclusively in the South, white Americans saw newly freed black Americans as a threat. They saw them as an economic threat. They saw them as a political threat. Again, imagine people that you had kept as slaves and all of the sudden you’re told that they’re supposed to be your equals. They’re supposed to be your political equals. They’re supposed to be able to walk freely. That wasn’t something that most people were able to tolerate. And so they devised a whole set of laws and set up policing regimes to enforce those laws. So you had situations where African Americans would be stopped for the most minor offenses. The classic one back then was vagrancy. Was just being around, loitering or vagrancy. Being around with no apparent purpose. And they would get taken in and in lots of jurisdictions, the only way you could get released was if somebody came to pay your bond.

James Forman Jr: And the way then you worked off the money that you owed for the bond was by working for that person. So especially in the South, you had lots of former plantation owners who needed labor. So the police would round up black people for no good reason. The former plantation owner, now landowner, would come and bail them out, bond them out. And then, the black person would owe the plantation owner 100 hours, 200 hours, 300 hours of labor for the privilege of having been bonded out for a crime that wasn’t even a crime. And so you see there the sort of direct ways in which slavery and the need for black labor produced a style of policing, an approach to policing and a legal system that, in essence, reconstituted the old system but with new language and with new legal justifications.

Robert Wiblin: Are there any kind of specific aspects of police practice or thought that you can kind of neatly tie back to that origin or to that history?

James Forman Jr: Yeah, I guess it’s not exactly how I would put it because I tend to think of it… I’ve said this earlier so I don’t want to repeat myself, but I don’t quite think of it as “Well, we had this precise practice in slavery, or this precise style of policing in 1890 or 1910 and there was a thing that police did then and there’s now a thing that police do that we can directly tie”. Again, I think of it a little bit differently. I want to ask myself, “How can it be that somebody can be so disbelieving of black suffering that they could kneel on a black body for minute after minute after minute, and not believe in that moment, not think that they were murdering this person as it was happening on film? How could that be? And in my view, one of the reasons that is, is that for most of American history, we had a system where white people, because they beat slaves without mercy, they had to create a rationale in their mind that black people have higher thresholds for pain and violence. They might be saying that this hurts. They might be saying they are on the verge of death. But they’re not telling the truth. That’s the only way you can think of yourself as a good person and do that to another human being.

James Forman Jr: And what I’m saying is, that mentality and those prejudices still exist in American society and they’re why somebody can kneel on the neck of a black person and be so indifferent to the human suffering that we all look at and say is obvious and evident and must stop. That’s why other officers can turn their back, can look away, can not intervene. And so to me that’s the way to think about the historical connections. More so than to look at a particular practice. I don’t know if that makes sense, but that’s at least how I think about it.

Robert Wiblin: Yeah. It’s kind of the culture and the mentality that’s more persistent generation to generation than any kind of particular practice or anything that’s kind of in the books or in the instruction manual for police.

James Forman Jr: Yeah, that’s what I think. And I should say, you may have a conversation with somebody or somebody might respond to this podcast and they might say, “Forman, you really missed something. Because I mean, maybe you’re right with what you said, fine. But there is this very concrete and specific thing that you overlooked”. And I’m open to that. Education is a lifelong process. So I’m open to the notion that there is a kind of more direct answer to your question. I’m not ruling that out by any means.

The role racism plays in policing today [00:14:47]

Robert Wiblin: Yeah. So looking more recently, to what extent do you think kind of ongoing racism of various different kinds is what’s causing police brutality today or unusual police practice? I guess you’ve got the one you mentioned about the dehumanization of black people which allows people to act more cruelly than they would otherwise. There’s a lot of gaps in my knowledge of American history, but I suppose Jim Crow wasn’t that long ago when I guess the police were being very directly involved in kind of maintaining a system of racial hierarchy in large parts of the US. And so there could be like various different channels that racism is kind of affecting practice today.

James Forman Jr: That’s right. So let’s talk about some other ways in which this would play itself out. And I’m especially interested in thinking about how these practices play themselves out among people and in institutions that think of themselves as well meaning, who would look in horror at Bull Connor and his police dogs set on black children in Birmingham, Alabama in 1963 and say, “We are not that”. Who would nod affirmatively in my whole conversation about slavery, and would say “Yes, yes, yes, that’s right and it was awful and we aren’t that”. So you asked about how racism ends up reinforcing police practices now. We would need hours and hours to give all of the examples. So I’m just going to pick one just to start us off. So we have entrenched poverty and joblessness that is disproportionately located in the back community in this country because of a history of unequal access to wealth and unequal access to jobs. So we have poverty and joblessness that is connected to America’s racist history and its racist present.

James Forman Jr: So now you have a city like New Haven, Connecticut where I live. If you walk out of my house and you walk one block… I’m a Professor at Yale as you said. I live in a nice neighborhood of the sort you would think that a Professor would live in. And if you walk one block away, you walk to a street called Prospect street. And on that block you will often find lots of Yale police officers and Yale security guards. And the Yale police chief is an African American man and he’s a lovely man. So why are there so many police on that block in particular? Well, that’s the block that separates the neighborhood where Yale professors live from a much poorer and much more African American neighborhood that’s just two blocks away. That’s just on the other side going down the hill. So here, the top of the hill sort of functions as the railroad tracks, in the classic other side of the tracks.

James Forman Jr: So there’s lots of police officers always on this street and they’re always on the lookout. And who are they on the lookout for? Not the Yale professors and the Yale students. They’re on the lookout for teenagers, typically young men, small groups of young men from the other side of the street, that may be, in their minds, up to no good. That are congregating on bikes. That may be thinking about a target of opportunity and committing a robbery. And so those police officers are constantly surveilling these young African American men. And they are subjected to a level of surveillance, a level of harassment, a level of interrogation which tells them by the way they’re being treated, it tells these young men that they’re subjects, they’re objects, they are people to be policed. They are threats. It also means that those people are more likely to be searched.

James Forman Jr: So let’s say they’re stopped and searched and they have marijuana on them. Now they’re booked and they’re put into the system. Now the next time they’re stopped and searched, which they’re more likely to be because of their race, they have a record. So now they come up as somebody with a record. Meanwhile, literally just three blocks away on my side of the hill, there could be college students. There are college students. There could be professors walking up and down the street with the same drugs in their pocket who never get stopped. Who never get arrested. And so now take five years out. Five years from now, you would look at the crime statistics and you would say, “Well, there’s more drug arrests and there’s more crime on that other side of the street”. But of course, the more arrests and the more crime are, in part, a function of the more aggressive policing. But those more arrests and more crime justify yet more aggressive policing. So that’s just a very small and local example. But I think you see similar examples all across the country in every city where a group of people, in this case, Yale police officers, who I think are very, very well meaning and certainly don’t see themselves as reenacting slavery or reenacting Jim Crow, do end up reinforcing a system that is racially unjust.

Robert Wiblin: Yeah. I think something worth highlighting is that even if one of the suburbs in fact does have a lot more crime than the other and that is part of the reason why the police are a lot more present there, a lot more active there, that does mean deliberately or inadvertently that people in those areas who aren’t part of any serious crime are much more likely to be caught up on minor offenses like marijuana possession. And so it has this kind of disparate racial impact, potentially inadvertently, even if you’re trying to help by reducing crime in those areas. That’s, I guess, challenging to avoid but something that you really do want to work very hard to prevent from happening.

James Forman Jr: It’s also the case… My book has a lot about this. It’s also the case that the residents of that African American neighborhood may be more likely to call the police and to request police presence because they see threats in their own neighborhood. But again, this just goes back to the broader conversation about poverty and joblessness. They’re calling the police because they want to be safe. And right now the way in which we have told people you get safety in this country is with more policing. So it is true that they’re calling the police. It’s absolutely true and the police chief might say and present data saying, “Hey look, I get more calls from over there so I need to be over there. I need to be more aggressive”. But it’s also true that in this same neighborhood that I’m describing… And again, this is now five blocks from my house. There’s an enormous factory: Winchester. It was actually a gunmaker in World War II. Produced a lot of the weapons that the United States used in World War II and continued to make guns after that. Guns in our country is a whole other question that we may end up getting to.

James Forman Jr: But that factory and other factories in that neighborhood are all closed now. So none of the young people who live in those neighborhoods, who 50 years ago would have been able to get a good job, those jobs are gone. So if you were to tell somebody in that neighborhood, “Hey, you have a choice. You can call for jobs or you can call for policing”, a bunch of those neighborhood residents would say, “Oh, wait, jobs are on offer? Give me the jobs”. But right now that choice isn’t presented. So right now they call for police because that’s the only form of public safety that we’ve provided or we’ve suggested we would provide.

Black American views on policing and criminal justice [00:22:37]

Robert Wiblin: Sticking with the theme of how we got here, let’s talk a bit about your book, “Locking Up Our Own”, which I truly enjoyed reading. It discusses all of these impacts of racism in the US historically. But also goes into this other driving factor which, as I understand, you thought had been underappreciated before your book was written. That’s that many black Americans in response to high crime rates where they were living during the ’70s through the ’90s actually supported the development of mass incarceration and the drug war and mandatory minimums and other tougher crime approaches like that. And indeed some helped to put them in place as elected representatives or leaders within police departments. And that was something that came as a surprise to me and I think might to many listeners as well.

Robert Wiblin: So what did you hope that the book would help more people to understand about black American views on policing and criminal justice in the past?

James Forman Jr: Well, I guess the first thing is that I just wanted to try to answer this puzzle for myself. Because I grew up in a majority black neighborhood in Atlanta and then I practiced as a public defender in a majority black city: Washington, DC. So I had spent a lot of my life operating in a world where I had seen black police officers. The police forces of Atlanta and DC are both majority African American police forces. The mayors in those cities have all been African American at least since the civil rights movement. And so I had seen a lot of punitive instincts and also punitive practices taking place within black America. And I wanted to try to figure out what was going on. How did this come to be? What were the roots of it? And so that’s really the question that launched my book. Now to answer your question, what did I hope that people would get out of it? I guess part of what I hoped that people would come to understand is really how deep-seated and through, sort of society-wide, the both punitive “tough on crime”, and I use that term in quotes because I don’t actually think it’s effectively tough, but sort of hard on crime. How widespread those instincts had become in our country.

James Forman Jr: Because I think if we see them in practice in the black community which, the reason why you said you found it surprising, and the reason why a lot of people find it surprising, is that we know that black Americans are disproportionately harmed by this system. We’ve been talking about that for the first part of this conversation. We might think our natural instinct might be well, you know they were opposed to this. But then once we see how many black Americans had actually participated in some way in constructing this system, we can actually understand how thoroughly and throughout society these instincts have become and therefore how challenging it is going to be to dislodge them and replace them with another set of both beliefs and also laws and institutions. So that was part of what I wanted to get out.

James Forman Jr: I also wanted people to understand… I wanted to write a sort of political-cultural-social-legal history of black America, in part, just because I thought that those voices hadn’t gotten enough time on screen as it were. So for the same reason that when I watch a movie or a television show, I’m drawn to ones that have a lot of black characters because I think once you have a lot of black characters you can move away from the single black character as supposedly representing the race. But you can actually start to see the nuance and the complexity and the disagreements that take place within black America.

James Forman Jr: Because that’s part of the story of my book. I mean, it’s true that the sort of “tough on crime” crowd tended to win. But there are arguments at every level. There was another side. There were people who were making the point that this is racially discriminatory all along the way. So you see that complexity. And I wanted to show the complexity and the depth of black thought. In part because I think that… And this connects back to the earlier part of our conversation when we were talking about slavery. To be fully human, that’s part of what it means to be human, is you get to be complex. You get to be complicated. You get to be nuanced. And I felt that that is true of the black community that I grew up in and that I live in and I wanted to put it on the page.

Robert Wiblin: Yeah. Something that was surprising to me but kind of makes sense in retrospect is that there were many black activists who saw aggressive policing and things like mandatory minimums as a positive from a racial justice point of view. Do you want to explain why they thought that and what the reaction was?

James Forman Jr: Well, absolutely. I mean, let’s just talk about aggressive policing. It’s almost impossible to understand or believe in this moment that we live in now. But for most of American history, or for a big chunk of American history, one of the truths of policing in black communities was underpolicing and underprotection. My parents are mixed race. My dad is black, my mom is white. So my dad is from the south side of Chicago, which is a large historically black neighborhood in Chicago. It’s sort of like Harlem in terms of its cultural significance in black America. And he would tell me that in his neighborhood, when he was a kid, when there was something going on, if a crime was committed… I mean not homicide, but a lot of crimes, they didn’t call the police. And why didn’t they call the police? He said the police weren’t going to come. They weren’t going to come respond to the complaint of a black victim who said they’d been victimized by crime. And if they did come, they were only going to make things worse. So right there in his comment you see the tensions. They’re not going to respond to us and if they show up they’re going to be brutal.

James Forman Jr: And so there’s a long tradition and history in this country of white racist police chiefs and sheriffs saying things like …If they were asked about a homicide in a black community they would say, “Well that’s not a homicide. That’s not a murder. That’s another dead black person”. And I’m only using the word black person to cover for the word that they did in fact use, which is not one that I choose to repeat. So against that history, against that backdrop, you then have a civil rights generation of black elected officials and black police chiefs who came with them. Black police officers first and then later some of them rose up to be heads of the forces. And black legislators, black prosecutors and they viewed it as their mandate and their mission to actually make law enforcement respond to black citizens. To provide the protection that for a 100 years had been deprived. The 14th amendment to our constitution guarantees the equal protection of the laws. That goes back to reconstruction. And there’s this idea that black people are not getting protected by the state. So they viewed that protection as being police officers being present. Police officers caring. And in some instances, police officers being aggressive.

James Forman Jr: So this was their motivation. Now that motivation then meets up at… One of the reasons my book is a tragedy is that a lot of these black actors that I write about I think had good motivations for the things they were trying to achieve but it happened at a moment where there were other people who had bad motivations. So there were other people who wanted to surveil and harass and oppress black communities. And they seized on the fact that there was black support for some of these things. And then they said, “Aha, aha, black people want it too? All right. Well now let’s double down and let’s triple down on some of these very, very harsh measures”. So part of my story is how people can want things for different reasons. And one group of people, the black actors in my story for the most part I think sort of wanted this protection with the intention of helping black communities. They were pushing for it unfortunately at exactly the time when people like President Richard Nixon and later people like President Ronald Reagan were pushing for things. And those people did not have the interest of black America at heart.

Has the core argument of the book been controversial? [00:31:51]

Robert Wiblin: Yeah, so I think one takeaway from your book is that we’ve ended up with this tragic situation of the US having the highest incarceration rate in the world. Partly through malice, and partly through indifference. But also kind of as an unintended consequence of policy choices made by people who had good intentions, who wanted to get black suburbs policed properly in order to protect them from crime which they for so long had been denied that. I guess I could imagine that some people might see that narrative… I could see that being a little bit controversial. Has that kind of core argument of the book been generally accepted or have some people disputed or thought that it kind of places the blame in the wrong place or could be misunderstood that way?

James Forman Jr: Yes. So your summary of how I view it, it was perfect. Thank you for that succinct statement. And now in terms of your question, sure, I was very conscious when I was working on the book. Researching it and writing it. I was very conscious that this was the kind of story that could be misconstrued and that could be used by people whose policy goals and whose commitment to black life was very different from mine. And in particular, I worried about two things. One, I worried that people would read it and say “Aha, if black people supported these ideas then they must be good ideas”. Or, “If black people supported these policies, those policies must not be racist”. But I worked extremely hard in the construction of the narrative to make it clear that I did not believe either of those things and that I didn’t think that either of those interpretations was the one that should be taken away. That a reader should take away. I have been gratified by the book’s reception. In other words, I was petrified that I would be misread in exactly the way you suggested.

James Forman Jr: The first review of the book was in the New York Times book review, the Sunday review section. And it was by Khalil Gibran Muhammad, who is a terrific African American historian at Harvard University. His book “The Condemnation of Blackness” is on many of the must read books to understand the history, and it’s a book that I devoured when it came out and that I relied and I cited in my own book. And he was the reviewer. And when I saw his name I was a little … And I’ve told him this. I didn’t know him, but I’ve met him since. And when I met him I said, “Professor Muhammad, I was very scared when I saw your name at the top of the review”. Because he is exact the kind of person… He’s somebody who very, very staunchly and I believe correctly… I agree with him down the line, is committed to having Americans understand the racist roots of our system. That’s what his book is about. That’s what “The Condemnation of Blackness” is brilliantly about. And so he was exactly the kind of person who might have the fear that you described. That I was somehow undermining the case for the racist roots of this system.

James Forman Jr: And because of his prominence, if he said that I got this wrong in the first review, then it was just going to be a pile on from there. So I was reading this and I was on vacation and I was in a warm location and I was… Robert I was sweating by the time I got to the end of the review. Because I was reading it only to get to the part where he attacked me. You know what I mean? He was nice and he was nice and he was nice. And I got to the end and not only hadn’t he attacked me, but he had said your point exactly. He had said, “Listen, don’t misread this book in the following way. Don’t think that Forman is saying that these are good ideas and don’t think that Forman is saying that racism was not a powerful force. He isn’t saying those things”. And so not only did he not misread it but he identified the fear that I was worried about. He told everybody that I was saying the opposite and it was a huge, for me, sigh of relief. And many, many, many reviews from that point on made similar points.

James Forman Jr: I’m sure that there are readers… I suspect though your concern, I think the way it plays itself out has not been from reviewers. But I suspect that there are readers who hear about the book, or pick it up in the bookstore, or read a blurb online and they just decide to move on. They go look for something else because they hadn’t gotten past the headline. They haven’t gotten past the one paragraph summary and they think, “We’re a little worried about what this guy is up to, let me go spend my $15 on something else”. So I think that does happen but what can you do?

Robert Wiblin: Yeah, I think a huge benefit of having kind of a book length to go into something is that you’ve got a lot of time to really explore this full cast of characters, both black and white. And the fact that they had a wide range of different views and you can go into the history of where they came from and why they believed what they believed. If you actually read the book it’s not a completely simple narrative where there’s good people and bad people. It’s about a terrible outcome being produced by people who, by and large, had good intentions. At least the people you talk about.

James Forman Jr: Yes.

The role that class divisions played in forming the current legal system [00:37:33]

Robert Wiblin: So speaking of the fact that African Americans have a wide range of views on things, one thing you cover in the book that I haven’t seen talked about much before is kind of the role that class divisions in the US, I guess especially among black people, played in getting the criminal justice policies that the US has now. Can you quickly talk about that because I thought it was fascinating?

James Forman Jr: Yeah. I mean there’s so many ways in which this plays out. But maybe at kind of the simplest, or sort of the first level, is that black Americans who have been in control politically, people who are sort of more likely to become in elected office or to run aspects of government are either, by birth or even if not by birth, have gotten to the point where they are middle class or, even in some instances, may be upper middle class. And what happens then is some of the same instincts towards property possession, protection, a desire for neighborhoods to look a particular way. Some of those same instincts which we know help to make white citizens… I described my block earlier, they would make white citizens call the police force and say, “Hey listen, there’s groups of kids that are gathering and they’re walking up the hill and could you keep and eye on them”? That sort of thing. So black citizens have some of those same concerns. And so there’s then attention, because on the one hand, there’s a sense of racial identification with the people that are being overpoliced, but on the other hand, there’s a class dis-identification. People are aware that at least from the standpoint of the socioeconomic status, that those people that are being overpoliced really aren’t you.

James Forman Jr: And so that plays itself out and you see that especially in cities like Washington DC or Atlanta or Chicago or New York where you have substantial African American presence and you have a big black middle class. Again, not big compared to whites but big compared to other black neighborhoods. And so there’s a thing that writers, political scientists, and others talk about is this idea of respectability politics. So there’s this idea that I’ve made it, and your acting out is a threat to the collective us. And it’s a threat to my status. Because I’ve made it by performing and talking and behaving in a particular way and when you act out you are going to cause white people to look at all of us in a less generous way. And so you talked about good motives earlier and how a lot of the people in the book do have good motives and I think that’s right. The probably one area where I distrust or am somewhat critical of the motives are the people that are practicing this brand of respectability politics. Because that is very divisive in the black community in a way that I think isn’t helpful.

What are the biggest problems today? [00:40:56]

Robert Wiblin: Let’s move on from the historical background to the problems we see today because I have so many questions about that and what can be done about it. Taking a kind of high-level view, what flaws in US policing and criminal justice as it exists today do you think are doing the greatest damage to people’s welfare?

James Forman Jr: I think there are two central flaws. And I think the remedies have to be directed to these two central flaws. Central flaw number one is that we have too many police and related to that, this is still part of the first one, is that police have too many responsibilities. We use police for all sorts of things that we do not need to use police for. And so we use police to deal with drug addiction, to take one example. And there’s lots of examples of this we see in everyday society. There’s examples of this we see in my book where elected officials… I write about a guy named David Clark who’s a very progressive elected official in Washington DC completely against the war on drugs. But when heroin is surging in the city, he gets inundated with letters from citizens about heroin addicts in public space and dirty syringes and people sleeping on park benches and people gathering on stoops and nodding off and making people feel unsafe. And what does he do with those letters when he gets those letters? Who does he send them to? He forwards them each and every time, not to the department of mental health, not to addiction services, not to counseling and recovery, he sends them to the police chief.

James Forman Jr: And he does that because he, like many Americans then and today, lacks the imagination to think of the problem of heroin addicts in public space as a problem to which we should send addiction counselors and social workers, and also government lacks the funding and the resources and the infrastructure for that. So some of those departments that I just mentioned don’t even exist. But more money goes to the police department and more requests go to the police department to solve that problem. So number one is we have too many police and we have police doing too many things. And then the second central problem at a high level is that there is too little accountability for police misbehavior and for… Whether you want to call them… I don’t like the term “bad apples” particularly because I think it suggests that it’s too limited a number. But whoever the individuals are who are violating people’s rights and who are being too aggressive and at some times being brutal. It’s too hard to get anybody fired. It’s too hard to get anybody prosecuted and it’s too hard to keep those people off the force of another department.

James Forman Jr: In the rare instances when people are terminated, then they often just get rehired by a neighborhood department. So those two things: too many police doing too many things and too little accountability for police violence and police abuse of citizens, I think, are the central problems we face in this country.

Robert Wiblin: Yeah. I thought you might say that rates of incarceration or the length of sentences could be a problem of similar magnitude or even greater because there’s just two to three million people in prison. These are just extraordinary pits of suffering.

James Forman Jr: You’re right. I thought you were talking about policing in particular. So as to policing, it was the two things that I just mentioned. But you are right that if you were to ask the question, and you may well have asked it this way, and I just was so much thinking about police. But if you want to ask the question about the criminal justice system or the criminal legal system, a term which more and more people are using because it doesn’t seem like the term justice belongs in this system. If that’s the question then no, absolutely: over-incarceration, what we call in the US, mass incarceration. The sheer number of people that we have both behind bars and under the supervision of the criminal system. Even when they’re not locked up, you know on probation, on parole. There are two areas right now as we have this conversation in July of 2020, the two most prominent areas where the United States is by far the worst country in the world, we are at the bottom of the rankings, are our response to the coronavirus and mass incarceration. There is no country which locks up more of its citizens than ours. And by most accounts, there’s no democracy in the history of the world that has ever incarcerated as many people as we do today.

Robert Wiblin: I guess other problems that people might point to are kind of the existence of a drug war or kind of enforcement of drug possession charges or drug use charges and maybe people might also say that a problem is just that the police in the US aren’t very good at preventing crime. Would you agree that those are problems?

James Forman Jr: Yes. Absolutely. Enormous problems. The drug war is one of the things that helps to produce the most incarcerated country in the world. It’s not necessarily the lead driver, but it is an important factor in that. And as to your second point, it’s very hard to measure police effectiveness in response to crime because it’s hard to know. If you look at, for example, crime rates, it’s hard to know whether the crime rate is high. Just to pick three examples of what might make the crime rate high. One might be that police don’t do a good job of solving crimes. Another might be that the people of that country are more criminally minded. And another might be that that country doesn’t invest in jobs and other social service and safety net opportunities so that people are driven to desperation and feel like they don’t have a future that’s worth living and then they turn to crime. So those are three. And conservatives would probably pick the second of that. Political conservatives, political liberals. I think that the third explanation is more likely. But it’s very hard to answer that question. But here’s what we can say about police and solving crime.

James Forman Jr: First of all… And let’s just put to one side police commission of crime, which we’ve been talking about a little bit. But put that to one side. I think that what the United States has done and Jill Leovy, a writer in LA whose book “Ghettoside” won a bunch of awards in 2015 or 2016. She brilliantly, I think, describes this phenomenon in that we have over-invested in the style of policing that you and I have been talking about so far. This sort of aggressive surveillance. Some people call it “prophylactic” or “preventative”. The stop and frisk. The harass people upfront because maybe they have drugs or a weapon on them. That style of policing, we have much more of than any democracy in the world. But what we underinvest in… And it’s hard to believe that we might underinvest in anything given how much money we spend on police. But Jill Leovy would say, and I think she’s right, that we underinvest in the police whose job it is to investigate serious crime. So this is, think of like the detective versus that frontline officer that’s on patrol. And she would say we put way too much money in the prevention, the prophylactic which leads to all of this toxic racial results and doesn’t solve crime and we don’t actually invest enough in the detectives. And from my own experience I have seen that to be true.

James Forman Jr: Working with young people in Washington DC, one of the reasons they didn’t call the police was… People talk about “Oh, there’s a no snitching culture”. Yeah, that’s part of it. But part of it is… And I saw this. I worked with a young man to try to get him to call the police in a situation where he was robbed and he actually did. And it was not until five days after the robbery that a robbery detective came to his house to talk to him about it and take a statement. Well, if somebody’s robbed on a street and the detective comes five days later, good luck solving that crime. So that’s exactly… This same young man would be harassed on the corner for allegedly selling drugs when he wasn’t. Yet when he needed a police officer to investigate the time when he was robbed, he couldn’t get one. And so that’s the way in which, I think … I don’t think it’s that our police are bad at it in the sense that they’re poorly trained or individually not capable. I just think in a lot of cities we actually don’t have enough people doing that work to do it well.

Robert Wiblin: Yeah that’s very interesting. I recall seeing a figure showing that surprisingly the US didn’t have a lot more police than Europe. It’s spent far more on incarceration than Europe. But the absolute number of police officers in the United States isn’t unusually high. It’s low relative to the number of crimes being committed which perhaps maybe explains why they don’t have this approach of “Well, we’re going to investigate and solve every crime”. Maybe they don’t view that as practical or I guess it could be a cultural issue as well but–

James Forman Jr: Well no, but think about that for a minute. And I know the statistic that you’re describing. I think the problem that we’ve just been talking about is really a result of that choice. So your asking this question is actually making me think of something that I need to go do a little bit of research on. So if you put your point with Jill Leovy’s point together. If the United States has relatively few police officers, let’s say compared to European countries, and all of our police officers, we had many more of them invested in this again, whether we want to call it prophylactic or preventative, or let’s just call it stop and frisk style policing. Well, that means that we then have yet fewer people that are available to do these investigations of serious crimes.

James Forman Jr: So this statistic that I don’t have off the top of my head, but that I want to think about generating based on this conversation is what is the ratio of major crimes detectives, for example. Like how does that compare? Because my hypothesis would be, since you all have much less of the stop and frisk style of policing, that you, as a percentage, we’re probably dreadfully low in the US, is those that are designed to investigate serious crimes. And if that’s true, that would be a good response to your question of why are police not doing a better job of lowering the crime rate?

What changes in policy would make the biggest difference? [00:52:41]

Robert Wiblin: Okay. Yeah. Let’s push on to what changes in policy or practice might have a positive impact on all of these problems. Yeah. What possible solutions to the prompts that we’ve discussed so far are you most excited about and kind of keen to promote?

James Forman Jr: So I guess my overarching thought about this is that because we have created the largest prison system in the world and the most people under criminal justice supervision, and some of the highest barriers to re-entry and re-employment for people when they get back out. Because we have some of the most sort of brutal and anti-rehabilitation oriented prisons. Because our system is so bad, we are going to have to do everything to like… There is no area of our criminal legal system that I think I could point to that where I say, “Well, we’ve got this. Like, we’re good here”.

Robert Wiblin: At least that’s okay.

James Forman Jr: Yeah, we’ll move on. Go close shop, those of you, the critics and the advocates and the reformers, and focus somewhere else”. So we have to tackle it all. And the good news is, I think right now, I mean the bad news is that’s a daunting challenge. And the good news is there’s a tremendous amount of energy at this moment on the streets and everywhere else in the United States to try to attack all of these challenges. On the policing side, I think that the things we have to do grow most naturally out of the problems that I mentioned earlier. So first of all, since we have too many police, especially of the kind of police that I was talking about earlier, the stop and frisk police, and we have them doing too many things. We have to redirect funding.

James Forman Jr: And this is what the defund movement is about. It’s about not just defunding police. It’s not just taking money away from police. But it’s about moving that money into other responses to keep communities safe without relying on the police so much. So it’s investing in mental health counselors, it’s investing in social workers, it’s investing in jobs programs, it’s investing in drug treatment programs. It’s getting police out of schools and putting counselors back into those schools. So that movement, which is getting a lot of airtime right now, is, I think crucial. And the other thing is we do have to build serious accountability measures so that when police are violent and are brutal towards citizens, that they actually face consequences. Some of this is very mundane stuff, but it’s crucial. Like, for example, the contracts that exist between police unions and the cities.

James Forman Jr: So, in every city, there’s a contract that governs, among other things, how police are going to be supervised and how they can be held accountable. In most of those cities, just to give you one example, if there’s a civilian review board, that you as a citizen can go to, to make a complaint that says you’ve been harassed, or you’ve been brutalized. When that civilian review board releases its findings, if it recommends that the police officer be terminated, guess who that recommendation goes to? It’s not final. It goes to the police chief. So the police chief gets to decide. And the police chief, of course, is under incredible pressure from his or her officers. Even if it is a reform-minded chief, they’re under incredible pressure not to terminate, not to sanction that officer. So this is just, it seems like a small mundane thing.

James Forman Jr: Like a local government contract, how can that be so important? But it is. So on the accountability front, I think that’s the place to look. And then if you want to move up from policing and talk about the criminal legal system more broadly, I think the fundamental thing that we have to do is we have to reduce the length of our prison sentences. Right now, people in this country go to prison. As you said, from your statistics, the United States spends more money on incarceration. It spends more money on the Department of Corrections than European countries. And the reasons that we do that is not because our prisons are lovely places that we’ve invested all these resources in. It’s just that we have so many of them. And the reason we have so many of them is that we have the longest prison sentences of any democracy in the world.

James Forman Jr: I mean, we have people in prison for drug offenses that are longer than you would get for homicide in most European countries. So we just have a completely, completely out of whack sentencing system. But this is going to be hard, Robert, to change culturally, because we’ve become accustomed to numbers that you would find so shocking. For 50 years, we’ve been consuming in the media, “So and so got 23 years for robbery”. And so now if you try to bring those numbers down, things that you would think of, and that I think of as rational: the American public has been conditioned to understand as extremely lenient. And so this is going to be a real, real long slog, but a crucial one. Because we’re only going to reduce the size of our prison system, if we reduce the length of sentences that we give people. And if we reduce the number of people who go to prison as a consequence of breaking the law.

Shorter sentences for violent crimes [00:58:26]

Robert Wiblin: Yeah. You point out in your book that while there’s some low hanging fruit there, that there’s some nonviolent drug offenders who are in prison, it’s a pretty small fraction of the prison population and we’re not going to solve the problem there. So to really get the numbers down, to really get to a level of incarceration that’s more normal globally, the US would have to give shorter prison sentences to violent criminals, to people who have committed violent crimes. And it’s a hard sell I imagine, politically in United States. Do you have any ideas for how to get around opposition to that, or how to sell that to people?

James Forman Jr: Yeah, it is. You’re right. It is a big challenge. And the reason why politicians, even sort of well-meaning ones, I think like President Obama was, haven’t tried to tackle it is because it’s viewed as politically toxic. So I don’t want to undersell the size of the challenge. I think that there’s two things that we have to do. First of all, I think we should lose the term “violent offender” and we probably should work to lose the term “violent crime” for this reason. There’s a huge disconnect between what the law defines as a violent crime and what ordinary citizens mean. When you say violent criminals, we’re going to have to reduce sentences, many people’s minds immediately go to murder and rape. But murder and rape are a small fraction of the crimes that the law deems as violent.

James Forman Jr: So by far the largest violent crime in the United States is robbery. And by size, I mean the most people who are in prison are in prison for this crime and it’s robbery. And robbery is considered a violent crime, whether it was an armed robbery or whether it was an unarmed robbery. Whether a weapon was brandished or produced or not. And so I want to move away from labels. And I want to try to talk about, if we can, I want to try to talk about people. I want to try to talk about cases. And I think if we can do that, we can shift the conversation in a more humanistic way. Where people are actually asking the question, “Okay, for this kind of conduct, this thing, what do we think is the best response”?

James Forman Jr: So that’s number one. Number two, I’m very drawn to the restorative justice movement which is growing in power and influence in the United States, although it’s still small. And what the restorative justice movement says… And I teach about restorative justice to my law students, as well as to the classes that I teach in prison. And it’s always the most popular part of the course, because it’s really kind of eye opening and mind expanding for people who are trying to learn about, who’re exposed to it. And what restorative justice says is, “Let’s not just talk about, was there a law that was broken and what should be the punishment,” which is like the typical criminal law question. “What was the law? Who broke it? What should the punishment be”? And restorative justice says, “Who was harmed? Who harmed them? And what can we as a society, including the person who committed the harm do to try to remedy and respond to the harm?”

James Forman Jr: And when you ask that question to people, it opens up a different… It shifts us away from just thinking about, “Well, how many years is justified? How many years should it be this crime bring”? Because once we asked that question, we immediately start thinking about, implicitly, we start thinking, “Well, this crime I read about got this many years, this crime got that many years”. It opens up a different kind of conversation. And I have found, in my work and in my conversations, that a lot of people who are crime survivors or crime victims, or who have been harmed by a crime, whatever term that you want to use, many of them find that our current system doesn’t actually remedy their harm. It doesn’t help them heal.

James Forman Jr: What we offer to people is a prison sentence for the person who harmed you. And that’s better than nothing. If you tell people, “Well, prison or nothing”. They’re going to choose prison. But if you start to have a conversation with people about another set of responses, that includes restitution, that includes apology, that includes face-to-face reconciliation and understanding some of the stresses that the person was under at the time that they committed this harm. And also so many people, Robert, so many people want to understand why. Why them? Why did you do this? And why did you do this to me? And the only way those questions can really be answered is from the mouth of the person who committed the harm. But our current system doesn’t even set up a structure to allow any of those conversations to happen. So I think that it’s going to be moving away from labels and bringing in more and more restorative principles, which a lot of jurisdictions are trying right now.

James Forman Jr: Washington DC, which I was writing about in my book, has moved aggressively in a direction of bringing in restorative justice. Right now it’s focused on juvenile court, but they’re working on thinking of expanding it to adult court as well. And they also have, and this gives me a lot of hope, Washington DC recently passed a law that makes everybody who was sentenced to a sentence of 15 years or more, it gives all of them the right to go back and petition the judge for a new sentence once they’ve served that 15 years. And to show the judge all of the things that they’ve done since they’ve been in prison, the ways that they’ve changed, et cetera. And that’s for people who committed violent offenses. So, although I think this road will be hard, I do see examples of jurisdictions really trying to tackle this really core part of the problem.

Robert Wiblin: Yeah. Lately in the US there’s been a big shift in the discussion about police departments and talking about shrinking police departments and re-diverting the funding towards other things that you’ve been talking about. Also just closing them and restarting them from scratch. Sometimes even just getting rid of police departments entirely and spending all the money on something else. Yeah. What do you think of those ideas? It sounded like that’s what you’re going to be looking into for the course that you’re writing now.

James Forman Jr: Yeah. I’m very drawn to those ideas and I’m very… I think it’s going to be hugely challenging to implement, and I think it’s going to be challenging for two reasons. One, there’ll be political opposition. We’ve been talking about the energy in this direction, but there’s entrenched forces on the other side, for sure. The police department, which, like any agency won’t want to lose its funding and has a lot of political power and a lot of cultural power. Politicians want to be endorsed by, want to be seen as strong on crime and keeping people safe. So, and also Robert, the other thing that’s going to be hard is building up these alternatives I described. It’s not going to be an easy task. In this country we have figured out how to build prisons. Again, we don’t build them well, but we can build them quickly.

James Forman Jr: And we’ve figured out how to staff up these enormous criminal justice agencies. But now we’re going to have to build and staff up these alternative models. Well, that’s not going to happen overnight. We have many times more criminal justice majors in colleges in our country than we do social work majors. Well, that’s not going to shift on a dime, but that’s what we need. We need more addiction counselors, more social workers, more job counselors, than we do criminal justice majors. But we’re not going to all of a sudden create all of these departments in universities, and change people’s perspectives on what career they should follow. That’s just not going to happen overnight. So to me, the two biggest challenges are going to be the political one. And then building up the infrastructure and the institutions to provide these alternative approaches in a country that has done so little of it throughout our history.

Robert Wiblin: Yeah. Can you imagine things going so far that we returned to a time where black suburbs are kind of underpoliced and there’s, as a result, there’s more crime than there would be otherwise? Is this a possibility that concerns you at all?

James Forman Jr: Well, you’ve made the very helpful point in this call. You’ve reminded me, I think in a very useful way, that we may have that problem already. We may still have the underpolicing problem on the investigatory side. So I don’t want to lose that point because I think it’s such an important one. So I think there’s a risk that, that could get even worse. Because what happens if a police department is told to cut its budget 10 percent and it decides to cut out investigators?

Robert Wiblin: Actually preventing crimes.

James Forman Jr: Yeah. People doing the stop and frisk. That would be terrible. But it could happen. So yes, I do think that it could get worse in just the way that you described. And I think we have, I guess I don’t know what to say about that other than that we have to absolutely be on guard and be vigilant to resist that.

Important recent successes [01:08:21]

Robert Wiblin: It’s been a month and a half now since the murder of George Floyd, and the huge waves of protest for racial justice and policing reform in the US. Have you seen any kind of important successes that we should learn from and perhaps be motivated by?

James Forman Jr: Wow. Yeah, a lot. I mean, the first thing is just the power of protest to produce change. I mean, I spent the first week to 10 days after George Floyd’s murder, essentially immobilized. Depressed, deluged with requests for comment and interview and to write, and couldn’t even send an email, let alone write an op-ed. And I was with my son. My son is 11. And we were driving back from the park and he said, “Dad, how come we haven’t gone to a protest”? And my parents met in the civil rights movement, and I knew there were protests happening, and we raised him in that tradition. And I was thinking to myself, “Yeah, like what kind of…” I mean, the answer was what I just told you that I was depressed and immobilized. That was the answer, but that’s not a good answer for a parent.

James Forman Jr: I mean, that’s an explanation, but it’s not an answer. And the right answer for a parent is to put on a mask and go to a protest, which is what we did that Friday. And there were so many people. There were 5,000 people. New Haven only has a hundred thousand people. There were 5,000 people marching from the Green to City Hall and they were young and it was diverse and it was inspiring. So the first thing I guess I would say that I’ve seen, that I think we can draw hope and inspiration from, is how many people have been and are continuing to really put their bodies on the line to say things have to change. And on a policy standpoint, I think we’ve seen a ton of movement. We’ve seen cities talking about dismantling and reconstituting their police forces.

James Forman Jr: We are seeing cities talk about shifting funds, in Los Angeles, in New York, in Minneapolis. And those are the big cities, but lots of smaller cities moving money from police departments to some of these other agencies that I just described. We’ve seen many cities cut their contracts with the police departments for the school district. So there will no longer be police officers patrolling in schools. We have seen though, on a cultural front, we’ve seen statutes coming down. I mean, you’ve seen them in England as well. We’ve seen name changes. I mean, we still have an American football team called the Washington Redskins. I believe today they are announcing a name change. I mean, this is one of the most flagrantly racist names on top of a leading franchise in the most popular sport in this country, and people have been complaining about it for decades. But right now, in this moment, because of the energy, we’re seeing symbolic changes. We’re seeing budget changes. And we’re seeing consciousness changing in ways that I just think are profound and powerful.

Robert Wiblin: On the naming thing, can I just say as a non-American, how extraordinary it is that the US has military bases named after generals who betrayed the United States to fight against the United States, to break it apart, to defend slavery. It’s just staggering that that is the case. I think I saw one comedian who said a similar thing would be naming an aircraft carrier after Saddam Hussein. You can have the USS Saddam Hussein. It’s extraordinary to me.

James Forman Jr: It’s not just extraordinary to you. It’s extraordinary to me. And I think it’s an example of the power of this moment. So when I was in law school, the first legal article that I wrote was published in the Yale Law Journal in 1992. And it was called “Driving Dixie Down, Removing the Confederate Flag from Southern State Capitals”. And it was written at a time when the Georgia state flag, and as you’ve heard, I’m from the state of Georgia, had the Confederate flag as part of the state flag. And I wrote this 20 page or something essay about why this was unconstitutional. And in the now 25 years since, Georgia, South Carolina, and Mississippi, as of last week, was the last of the three States that had some version of the Confederate flag flying above it’s state capital, and they’re now all gone. But I say this to say that even having done that research and even having grown up in the South where most of these bases are, I didn’t know who… I know the names of these bases.

James Forman Jr: Like I could say them. But I didn’t know that those people were Confederate generals. I didn’t know that when I would talk about Fort Benning or Fort Hood, or I don’t even actually know at this moment that all of the bases that have the names of the Confederate generals, but you’re right. But to me it shows the power that the Confederacy has had at sort of infusing itself into normalizing. We don’t think of these individuals the way we think of Saddam Hussein, right. Although we should. Although we should. And so I guess I would just say I’m blown away that we had bases that were named in this way, even knowing all the history that I know, and even knowing that there was a concerted movement, right after reconstruction through the 1950s, to try to put Confederate symbols and statutes and names in as many places as possible as part of the way of resisting the black freedom movement. Even knowing all of that history, I didn’t know about all of these base names. So it’s not just non-Americans that are shocked and horrified.

What can people actually do to help? [01:14:38]

Robert Wiblin: Unfortunately we’ve only got five or 10 minutes left, but I’m really interested to know for American listeners who want to work to bring about these reforms, what can they do beyond going to protests. I’m particularly interested, are there particular kinds of city council meetings or police community consultations or things that you can do on a local level that can really move the needle here that people might not know so much about?

James Forman Jr: Yes. And I’m glad that you asked that question. As you know, from my book, I’m very interested in local politics as a way of both having created this system and responding to it. So yeah, the first thing that people can do is they can start to connect to local advocates that are working on these issues. So I think the organizations that are the best for people to reach out to are the ACLU, which has affiliates in every state in the country. And so you can get connected to local activists and organizers. If you just search ACLU and then your state. Campaign Zero is another, and they’re working to have zero police violence, which is where the term Campaign Zero comes from. They also have a very good website that has the name and the phone number of the local police chief, the local mayor.

James Forman Jr: So I think the crucial thing for people to do is to go to their city council hearing. The first thing that I would ask everybody to do is to reach out to their city council, their county council, or their mayor, and say, “I want our police force to be smaller and I want it to be more accountable. And so I want to know what you are doing to shrink the size of the police force, to have that money invested in non-police alternatives, and what are you doing to ensure police accountability. In particular, what are you doing to make sure that we have a police union contract in this city that holds officers accountable when they break the rules”?

James Forman Jr: And if everybody starts there, then that will immediately send the message to local elected officials that there are citizens who don’t just care about this in this sort of the broad, abstract way, but care about it in a granular, local way, and understand things like the power of the police union contract. And once people start to understand that citizens are concerned about that, they, as elected officials, are going to have to start paying attention to it as well.

Robert Wiblin: Speaking of police accountability, and just the fact that police can do terrible things and not get fired and not get punished at all. Some people have suggested that police should not be allowed to form unions because it just seems like police unions have become so toxic and just a vehicle for police impunity. Do you think there’s something to that?

James Forman Jr: I have to think about that question more before I would sign on to that. I’m generally pro-labor and think that unions have, I think done a good… In general, I would say we need more unionization and a strong and more labor power in this country. I’m somebody who grew up in a family of union members. So my first instinct is to say that if police unions want to negotiate for more pay for working conditions, hours, pension, vacation, all those sorts of things, to me, that’s appropriate. Where I want to resist that power is on this question of accountability. Having said that, that might be naive. The people that you’re talking about might say, “You know what? As long as you have the unions, they’re always going to have the power to negotiate for on accountability. And you’re never going to get what you want”.

James Forman Jr: So I just have to think a little bit more about that. I don’t think we’ve tried yet. That is to say, I don’t think we’ve tried. We haven’t had serious pushback from our elected officials, including progressives. A lot of cities are run by Democrats. Not just black political power, but more liberal, more progressive minded political power’s been concentrated is at the local level. And I don’t think that our progressive leaders have really paid attention to this issue. I guess I would want to start there and then see where we go.

Robert Wiblin: Yeah. That has been something that has surprised me a bit is that some of the cities seemingly with the worst, most brutal police departments are cities where Democrats are in control, which you might naively have thought would be places where there would be more accountability and more of an interest in this topic, but it doesn’t seem to have always been the case.

James Forman Jr: And that’s right. And now sometimes that’s because of state law. So, as I understand it, and again, I’m just beginning to really become expert in some of these issues, because I have been, for most of my life, I’ve been more focused on the sort of prison side of this question than on the policing side of this question. But on policing, some of this is like… So in California, it’s a state law I think that makes it so hard to hold any police officers accountable, not an LA law or a San Francisco law. Having said that, that still doesn’t answer your question. It’s just because California is a state that’s controlled by Democrats. So you might be asking yourself, “How have they allowed this to happen”?

James Forman Jr: Part of the story, as I understand it, is that when we have had budget cuts in this country. So, in the eighties and nineties, when there were some financial, some austere times, and so municipal leaders went in to negotiate with the unions and the municipal leaders wanted pay cuts, or at least pay freezes. And then the union leaders who are savvy about this said, “Oh, okay, fine. But here’s what you have to give us. And you have to give us power on the accountability front”. So that’s kind of part of the story. So some of this, I think, has to be clawed back from those decades.

Robert Wiblin: Yeah. Yeah. One suggestion you’ve had is that people who want to change the system should become public prosecutors rather than public defenders, which is the more traditional route. Could you make the case for that for listeners? For how one could potentially have a big impact as a prosecutor?

James Forman Jr: Yes. I became a public defender after law school because I wanted to fight mass incarceration. And I thought that the best way to do that was to represent individual people charged with crimes and make sure that they got the best possible defense possible. And I still believe, I think if I were graduating from law school today, that’s still the job that I would take. So when I made the case for becoming public prosecutors, it wasn’t to say instead of being public defenders, but just rather that, 25 years ago, I think it would have been extremely hard to become a prosecutor and do anything other than follow the most kind of punitive, lock them up sort of approaches because the political pressures and the cultural forces, everything was so powerfully running in that direction. But today we’re in a moment where there are, in some cities around the country, there are prosecutors who have run on campaigns of ending or reducing the ferocity of the drug war, of ending mandatory minimums, of not asking for people to be locked up before trial, just because they’re too poor to post bail.

James Forman Jr: And so those prosecutors, those lead prosecutors, what they need is they need some reform-minded individuals who want to change the system to come in and help them staff up their offices. Because it’s the same thing that we talk about with a reform-minded police chief. You can have whatever ideals you want to have at the top, but unless you have people in your office to implement them, you’re not going to be able to actually create change. So when I talk to my law students now, I encourage them, of course, to become public defenders. But for those that are drawn to become prosecutors, I tell them, “Well, seek out those individuals who are wedded to change. That are committed to an approach to prosecution that reduces incarceration rates rather than increases them, and go do that work”. Because prosecutors are the most powerful actors in the system. There’s no question about that. And so you can, potentially in the right office, under the right circumstances, you can, I think, have a profoundly positive impact. It’s not something that I ever thought I would have said a decade ago.

Robert Wiblin: It’s the kind of counterintuitive advice that I really like at 80,000 Hours. Fingers crossed, it’s good advice. Well, yeah. Thanks so much for going overtime and thanks for all the work you’re doing. Keep fighting the good fight.

James Forman Jr: Thank you. It was really great to have this conversation. And importantly, I learned some things from your questions that I’m going to now take as my own homework.

Robert Wiblin: Yeah. Hopefully we can put together some things for listeners on this topics so they can learn more, if they’re interested. My guest today has been Professor James Forman Jr. Thanks so much for coming on the 80,000 Hours podcast, James.

James Forman Jr: It was a thrill. Thanks.

Rob’s outro [01:24:18]

Robert Wiblin: In this episode we discussed some general trends about policing and incarceration in the US vs Europe, and because it’s not something I’ve investigated in detail I was worried I might be bringing incorrect information to the table, so I thought I’d go and check.

Fortunately I think James and I were largely right.

First off, it’s true that the US has fewer police than many other rich countries, especially those in Europe.

Referring to the Wikipedia article called ‘List of countries and dependencies by number of police officers’ we can see that the US is 100th out of 145 countries listed for number of police officers per capita, with 238 officers per 100,000 residents.

That means about 1 in every 400 people is a police officer.

That puts the US above China which has 143 officers per 100,000 people, or India with 198, or England with 211.

It’s about the same number as for Japan, New Zealand or Poland.

On the other hand it’s lower than most European countries.

Globally the median figure is 300 police officers per 100,000 people.

The Netherlands has 300, Thailand 340, France 340, Germany 380, Mexico 460, Greece 503 and Spain 533.

Amusingly, in Vatican City 15% of all residents are classified as cops. If you’ve been planning to burgle the Apostolic Palace I suggest reconsidering.

Alright, so the US is a bit below average, but nothing crazy. What makes the number surprising is that the US has higher crime rates than most of the other countries I listed, especially when it comes to violent crime, which you might expect to encourage spending on law enforcement. The upshot is the US has comparatively little time to investigate crimes when they’re reported.

The other topic we covered was relative spending on prisons vs police in the US.

The difference between the US and Europe there wasn’t quite as stark as I had remembered, but still pretty stark.

Looking at a report called Police vs. Prisons in the US and Europe by Daniel Bier, it looks like the US currently spends $1.50 on police for every $1 on prisons. So 40% of combined spending is on incarceration. That’s down from a peak of 45% in the year 2000.

By contrast, European countries spend around $5 on police for every $1 on prisons. So they dedicate less than 20% of law enforcement spending to incarceration.

I found a report from the ~2000s suggesting the global average was something like $3.5 on police for every $1 on incarceration.

If you compare US states and European countries, you see that there is almost no overlap. With just a handful of exceptions, every European country dedicates a greater fraction of its law enforcement spending to police than every US state.

I’m not completely sure of the interpretation here, but one natural one would be that the US has decided to try to prevent crime by making its punishments more severe — specifically handing out long prison sentences — while Europe is more focused on preventing crimes by increasing the probability people will be caught in any given instance.

Despite this, there isn’t a big difference in total spending as both the US and Europe spend around 1.25% of GDP on law enforcement as a whole.

I’m sure there are complications in the data collection here because different countries will have different definitions of a police officer and incarceration. But I expect these tendencies are broadly right however you count things.

We’ll put up links to the sources I’ve used for this, and we’ll have more discussion of what’s distinctive about US policing in our next episode on this topic with Jennifer Doleac, which should be out soon.

The 80,000 Hours Podcast is produced by Keiran Harris.

Audio mastering by Ben Cordell.

Full transcripts are available on our site and made by Zakee Ulhaq.

Thanks for joining, talk to you again soon.

About the show

The 80,000 Hours Podcast features unusually in-depth conversations about the world’s most pressing problems and how you can use your career to solve them. We invite guests pursuing a wide range of career paths - from academics and activists to entrepreneurs and policymakers - to analyse the case for working on different issues, and provide concrete ways to help.

The 80,000 Hours Podcast is produced and edited by Keiran Harris. Get in touch with feedback or guest suggestions by emailing [email protected]

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