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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.


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 other media discussed in the show

Professor Forman’s work

Everything else

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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 and against working on different issues and which approaches are best for solving them.

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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