The Complicated Role Of Black Leaders In Shaping The Criminal Justice System

On this week's episode of Code Switch, we dove into Kamala Harris's past as a prosecutor, both as the district attorney of San Francisco and attorney general of California. It's a history that she has touted on the campaign trail, but it's also earned her flak from those who criticize what they see as a harsh and unyielding approach to prosecuting and incarcerating people—especially Black people—without due consideration of the ways the system discriminates against those defendants.

But, as we explore in the episode, Harris's history as a prosecutor and politician is inseparable from the moment she began her career: the epoch of Bill Clinton's crime bill and the end of the crack epidemic era. And in those days she was one of many Black lawyers, judges, police officers and legislators who took a similar approach to the problems they saw affecting their community.

So we talked to James Forman Jr., a professor at Yale Law School and author of the Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, to help us understand the complicated interplay between Black leaders and the criminal justice system, which has disproportionately targeted and incarcerated Black folks.Only part of what he told us made it into the final cut of the episode, so here's an extended cut of our conversation, which has been edited and condensed for clarity.

You spent the early part of your career as a public defender in Washington, D.C., which at the time was one of the most violent cities in the U.S. It was also one of the Blackest cities in the country. You often found yourself defending your Black clients against Black prosecutors, and you were standing before Black judges. Can you tell us about your client Brandon, and how his sentencing changed the way you thought about the role Black people played in the giant apparatus of criminal punishment? [Note: Brandon is not his real name.]

Brandon was a teenage client of mine who was faced with possession of marijuana and possession of a gun charges, and we were at sentencing. So the judge had to decide what he was going to do because Brandon had pled guilty. And I was arguing that [Brandon] should be on probation. I had a letter from a teacher and a counselor at his school. It was his first arrest. Brandon's mom and grandmother were there in court; they wanted him to come home. But the prosecutor in the case wanted him to be locked up and go to Oak Hill, which was the name of juvenile prison back then. It was a place where young people always left worse off than when they entered.

And the judge had to make the decision in the case. He had a young Black man facing sentencing. He had me, a Black public defender, and a Black prosecutor. The judge himself was African American. And he looks at Brandon and he said, "Son, Mr. Forman's been telling me that you've had a tough life, that you deserve a second chance. Well, let me tell you about tough. Let me tell you about Jim Crow segregation." The judge, who had been a child in those years, proceeded to lecture Brandon on what it meant to live under Jim Crow.

He said, "People marched. People died for your freedom. Dr. King died for you. And he didn't die for you to be running and gunning and carrying on, embarrassing your family and community. So I hope Mr. Forman is right. I hope one day you turn it around. But today in this courtroom, actions have consequences." So he locked Brandon up.

What you have to understand is that I had taken the job of being a public defender because I thought I was living out the generational struggle for civil rights that those heroes like Dr. King had fought for. I viewed—and still view to this day—mass incarceration as the civil rights struggle of my generation. And here we have a judge who's invoking Dr. King, the same hero who motivates me to be a public defender, in this twisted moral logic for why Brennan should be locked up.

The judge was not the only Black person in the system. We had a majority-Black police force. We had a Black mayor. The chief prosecutor in the city at that time was Eric Holder. We had a majority-Black city council, and we were doing in our majority-Black community what much of the country was doing in these years. We were doing stop-and-frisk. We were passing mandatory minimums. We were making the sentences longer and longer for drug and other crimes. It really caused me to sit back and ask this question: How did this come to be, in a Black city with Black leadership?

Your book is about this overlooked role that Black folks—whether they're public officials or private citizens—played in expanding the carceral state in the United States. So what part did they play?

I should just say up front that, by focusing on the role that African Americans played, I'm by no means saying that black people were the only or even the main drivers of this. But I really wanted to explore the role that black people played because I'm ultimately interested in Black intellectual, political, civic and cultural history. And I wanted to solve that paradox of Brandon's case. But by no means do I minimize the role that racism and other forces played in creating this system.

The fear and the anger that was present in so many communities [was palpable]. When you went to community meetings back in the '80s and '90s, and people were talking about what they wanted, you would hear a lot of, "We want more police officers, and we want police officers to be more aggressive." Citizens were afraid. Surveys that were done back in those decades show that Black people had greater rates of fear of crime and fear of violence. Some of those legislators, prosecutors and police officers that I'm talking about took those jobs because they viewed themselves as fighting for and protecting the Black community.

But what I think is really crucial to understand is that, when Black people went to community meetings and said "We want more police," it wasn't the only thing they were asking for. They also wanted more money for jobs, drug treatment, mental health treatment. They wanted real gun control. They asked for a Marshall Plan for urban America. And of all of the things that Black people were asking for back in that period of time, they got the law and order part. They got the police and prosecutors and prisons.

Why didn't they get the other things they asked for?

I mean, the short and the simple answer is racism, right? The more complicated answer is that Black political power has always been concentrated locally. It's been concentrated at the city level, at the police chief level, at the mayoral level, at the city council level. But to get the Marshall Plan, to get that kind of funding, local government wasn't enough. You needed state governments and crucially, you needed Congress. From there, you get the story of Black political figures going and asking for that greater funding. But because of indifference to the plight of the black community throughout the rest of America, because of racism, those claims went unheard. And so the thing that they got was the thing that the larger political culture was already interested in offering.

Which was more incarceration.

Right.

But even at the time when you saw this—while there were black people who were really vocal about being tough on crime—there were always other voices in those communities who were pushing back on this idea, who said that locking people up would be harmful, right?

I'm really glad you asked that question, because whenever you write history, at some level the winners get more focus on the page. It certainly is true that at every step of the way, there's opposition. All of these choices were contested. There were a lot of us public defenders in the '90s — and a lot of us Black people — saying, Wait a minute, mass incarceration is our civil rights struggle. This is a mistake. At every community meeting, there were multiple sides of the issue that were being presented.

You introduce this really interesting notion that we have this criminal justice system that isn't nearly as cohesive as people think it is — that for all intents and purposes, it's a non-system, made up of a bunch of semi-independent parts interacting with each other. How did we end up here?

Part of it is that nobody by themselves ever had an up or down vote on, Hey, should we create the largest prison system in the history of the world? It wasn't presented to people in that way. It was presented as, Should there be more police officers responding to complaints about teenagers playing loud music or somebody selling drugs? And then in the prosecutor's office, there are decisions to bring more cases and to give fewer plea offers, and to push for longer sentences. And then the judges are all themselves getting somewhat harsher. And then the legislatures are passing laws to give judges longer sentences that they can impose, or in some cases with mandatory minimums must impose. Parole boards, for their part, are getting tougher and tougher.

So if everybody in the non-system, in their own roles, gets 5 percent, 10 percent, 20 percent tougher, nobody by themselves has to say let's create the world's largest gulag. But that's the end result, because everybody is pushing in the same direction. You could think of it as almost like a conveyor belt or an assembly line. If everybody speeds up their piece of it, all at the same time, and sustains that over decades, then the thing gets ramped up to the speed that we have now. We get the inhumanity and the brutality that so many people today are commenting on and and wondering, What do we do about it? And that's the last piece of it, because it's touched so many small parts of the system where everybody is going in this same direction. A lot of people say to me, Well, what's the most important thing? Was it mandatory minimums? Was it the war on drugs? Was it felony disenfranchisement? And what I always try to say in response is that no one of these single things by itself is responsible. And that's why we have to push back on all of them at the same time.

But the problem of mass incarceration, even though it disproportionately affects Black Americans, is not landing on all of us to the same degree and with the same weight. How does class play out in who was advocating for "tough on crime" policies and who was on the receiving end of those policies?

The question of class and socioeconomic status can often be overlooked, because it gets presented as alongside race. But there aren't that many sociologists or other people who have really looked at the question of class within the African American community and asked, Well, how does that impact politics? And I think the story of mass incarceration is that not all segments of the Black community have been hit equally hard. That is to say, for African Americans who have gone to college, the risk of going to prison in your lifetime has not increased. The real increase has been hyper-concentrated on African Americans who have not graduated from high school.

It's also important to recognize that people are part of families, and people are part of communities. So there is a kind of empathy, because for a lot of Black people who went to college, or went to professional school, we may have somebody in our family who has suffered and did graduate high school or barely graduated high school, and has been arrested and been convicted. I don't want to suggest for a second that a Black person who graduated from college is in the same position as a white person who graduated from college, in relation to the risk of going to prison. That is not true.

But here we're talking about how, within the Black community, we do see this class and educational divide. And that ends up being so important, because who are the people that are actually making the decisions? Who are the prosecutors? Who are the judges? Who's voting at the city council? These are folks that, almost by definition, right in the Black elite. They may not all have been born into the Black elite, but they've now made it. And they are now in a position of being able to make decisions and pass laws.

One of the reasons why people find the story of Brandon somewhat surprising is that there's an assumption that we make: Well, everybody in the courtroom was Black. So shouldn't the judge understand where Brandon was coming from? But if you think about it from Brandon's perspective, he may have looked at himself as alone in the courtroom. Yes, we were all Black, but all the rest of us were professionals—even me, his lawyer. The prosecutor was a lawyer. The judge was a lawyer. So Brandon may have been acutely aware of these class differences that get somewhat lost in our conversation, because we can sometimes it's just it's easy to miss because skin color is so salient in the way we all understand the world.

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