Listen to the full conversation in the player above and to past editions of “Scheer Intelligence” here.

—Posted by Emma Niles

RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guests. In this case, James Forman, Jr. And the “Jr.” comes from a father, James Forman, who was a major leader in the Civil Rights Movement of the sixties, major organizer of SNCC [the Student Nonviolent Coordinating Committee] and for SNCC, but also kept the organization together during a critical time. He was obviously very successful in the meritocracy of law school and everything else, ended up being a clerk at the Supreme Court for Sandra Day O’Connor. And, however, instead of going off to some prestigious law firm where he’d figure out how to swindle the rest of us, he went to work in the public defender’s office in Washington, D.C. And did that for six years, and then was instrumental in founding a charter school in Washington, and–after Maya Angelou, right?

JF: Yeah, named after Maya Angelou, yep.

RS: And then he went on to be a professor at Georgetown, at Yale where he is a full professor and a leading expert, and currently is in California for a year at Stanford. So you’ve really gone the whole range of experience here. And so you’re safely ensconced in what could be considered the upper crust, white, black, brown, or what have you–

JF: Right.

RS: –full professor of law at Stanford. And yet your book, Locking Up Our Own: Crime and Punishment in Black America–and it’s a terrific book, and a provocative one. Because it basically, when you use the phrase “our own,” I think you’re making the point that also you, despite your establishment position now, still see these people as being locked up, as not throwaway people, or not thugs, or failed and forget ‘em; you see them as your people, our people, and you want the readers to see it that way. And yet, I think if there’s a provocative theme in this book, it is that this whole war on crime that ended up giving us this incredible violation of human rights, with this large incarcerated population, mostly of people of color, and we can go into all that–did not come, basically, from racist whites. That it was–

JF: Well, not entirely.

RS: Yeah, so I’m going to let you get into the complexity of it, and it is a complex story. But there were plenty of people in the black community and in the brown community that were alarmed at what was happening, the victims of these crimes were also black and brown people disproportionately. And also, they didn’t have a lot of confidence in the alternatives of rehabilitation and so forth. And the attention increasingly became focused on locking them up; long prison terms, long minimums, long maximums, and so forth. And to my mind, that was an illumination: that the bad guys were, in many ways, the good guys. You introduced us to the judges, the cops, the prosecutors; and you know, when you say, hey, these people are acting very often out of a desperation and are concerned for the people living in these communities. Is that a fair summary?

JF: Yeah, it is. I mean, there’s a lot of stories in this book, but one of the stories, I think, that kind of establishes the dilemma that you’ve identified is one that I have early on in the book, involves a young man I represent, a teenager named Brandon. And Brandon was, had pled guilty to possession of a gun and possession of a small amount of marijuana, and he was facing sentencing. And I was his public defender, and as you said, I came out of the Civil Rights Movement in the sense that my parents met and married in the Civil Rights Movement. And I viewed the work that I was doing as a public defender as an extension of their struggle. I viewed it as the civil rights issue of my generation. We already knew by that time, 1990s, one in three young black men was under criminal justice supervision. We already knew that the United States had passed Russia and South Africa to become the world’s largest jailer. So I’m in court, representing Brandon, asking him to be released; asking the judge to put him on probation–

RS: He was fifteen at the time.

JF: He was fifteen years old. It was his first arrest, first conviction. His mom and grandmother were there in court. They had been there for every court hearing, standing by him. I had a letter from a football coach, from a teacher at his school, speaking to his character. Now, Brandon, like almost all of my clients, over 95 percent, was African American. The prosecutor in the case who was asking for him to be locked up–she, too, was African American. And she wanted him to go to Oak Hill, which is D.C.’s juvenile prison, which, like a lot of juvenile prisons around the country, is basically a dungeon. And the judge who had to make the decision, Judge Curtis Walker–I changed the names of the judges to protect their privacy, and some of the lawyers–but Judge Walker, he had to make the decision. He looks out, he’s now got an African American lawyer asking for incarceration; an African American defense lawyer, me, asking for Brandon’s release; a young African American man on trial. And the judge says to Brandon before imposing his sentence, he says, “Brandon, Mr. Forman has been telling me that you’ve had a rough life. That you deserve a second chance. Well, son, let me tell you about rough. Let me tell you about Jim Crow, segregation.” See, the judge, he knew that time period. And he started to lecture Brandon on what it was like to be black in those days.

RS: In your book, you say you knew he was giving the Martin Luther King speech.

JF: I knew because I had heard it before. And he wraps up the speech by saying, “Brandon, people marched for and died for your freedom. Doctor King died for your freedom. And I tell you this, son: he didn’t die for you to be runnin’ and gunnin’ and thuggin’ and carrying on, and embarrassing your family and embarrassing your community. That was not his dream. So I hope Mr. Forman is right,” he summed up. “I hope you turn it around, but right now actions have consequences, and your consequence is Oak Hill.” And they locked him up. And when I reflected on the fact that this judge was not alone, the majority black city council in D.C., that–the group that passed the gun and the drug laws that Brandon was being sentenced under–it was a majority African American city council; the police force was majority African American.

RS: Thirteen of fifteen on the City Council, you said, were black, because it had been formerly a white leaders hip–

JF: That’s right, that’s right. And starting in 1975, when there was a form of limited home rule that was granted by Congress, D.C. voters got to go to the polls, and that first City Council that they elected was actually thirteen members; eleven of them were African American. And so I knew that, to put it mildly, not everybody in the city agreed with me and my colleagues at the public defender’s office that this was the civil rights issue of our generation. But what was fascinating to me about the judge’s response was that he didn’t reject the civil rights mantra; even more, he claimed it for himself. Right? I had come to court imagining myself as the Martin Luther King figure in the narrative.

RS: Yeah.

JF: He claimed Dr. King’s legacy in service of putting Brandon behind bars. And understanding that mentality, figuring out where that came from, how it was that so many people in the city ended up embracing some of the same punitive, harsh, brutal measures that were being pursued around the country–that became my mission. That’s the book that I wanted to write, to figure that out.

RS: I thought that your book, right at the beginning there, and it runs right through the whole book, raises a very important question that some people think is easy to answer. But it ends up on a note saying, wait a minute, there is no rehabilitation. You have a character, I forget her name, but she is facing a deal.

JF: Yeah, Tasha Willis.

RS: Yeah, and a lot of your book is about, hey, 95 percent of these cases never even see a jury, right?

JF: Right.

RS: I don’t know what the number is, ah–

JF: Right. Yeah, there’s no jury–I have a lot of cases in this book, but there’s no stories about jury trials. And it’s not because I didn’t have any; I tried a number of cases. But it’s true that over 95 percent, depending on the jurisdiction you’re in, 90 to 95 percent plead guilty. And I thought it was important to represent that. You know, I wanted the reader to see how much work lawyers do, and public defenders do. And in a lot of ways, this is a love letter to public defenders. But I wanted them to see how much work public defenders do that doesn’t have to do with what we see on television of, you know, trying the cases. But you were talking about Tasha Willis.

RS: Well, I was particularly moved by her case. I happen to have a relative who lives with me, my brother-in-law, Pete. And I went through with him getting off heroin; he was a chipper, he doesn’t mind my talking about it. You know, and we were able to show a lot of support, and he’s been off it for most of his adult life now, and worked hard and paid a lot of taxes and everything.

JF: But let me ask you this, how many–

RS: I’m going to ask you–

JF: Oh, you’re going to–all right, fine–

RS: Because you have more knowledge than I do. What struck me reading that is I said, wait a minute, people can get off heroin, but this woman was not treated as a medical problem; she wasn’t offered any serious–and you have this very sad scene, you try to get–you know, and she gets off somehow, because the prosecutor has screwed up on their homework or something. So she’s going off into that night, OK? And she was facing some horrendous–she turned down, what, a five-year deal because she didn’t want to be separated from her mother that she was taking care of. And she was facing some, what, 30 years or some–

JF: She could have, under D.C. law, she could have, yeah, she could have faced sixty years.

RS: Yeah, because it was a second–

JF: Because it was a second offender–

RS: And it was a small amount of–

JF: Ten dollars worth of heroin, she was selling on the street.

RS: And you look wistfully at her–a very beautifully written book–and you capture the humanity of everyone. You know, the bad people, the good people, everything. And yet you see her going and you say, it’s not going to have a happy ending. She’s going to be back on heroin, and she’s going to do something to get that heroin, and she’s going to be back in the criminal system; it’s a very pessimistic note. And then in your book, the powerful message of this book is, what have we really held out to these people? Where is the rehabilitation, where are the programs? Do we–or are they throwaway people? Lock ‘em up? And you have–and I’m not trying to put down successful black or brown people, I understand, and I’ve covered stories and I teach in the middle of a community that has a lot of problems at USC; and well, you do at Yale, there are a lot of problems in that community. And I know, you know, the people that are most hurt by the crime are people living in the community; I get the sentiment. But then there’s an assumption that somehow that kid, that 15-year-old kid really was offered or had been offered an alternative. And I guess the big issue I want to put to you in this discussion, is there really an alternative for that 15-year-old kid growing up in that environment?

JF: Well, let’s–I mean, let’s talk about the question of alternatives, and we can talk about Brandon, or we can talk about Dante’s case, maybe, in the conversation. But you started with Tasha Willis. So to talk about her and what alternatives were available, she was a heroin addict; she started off prescription pain medications, a classic trajectory, and ended up being addicted to heroin. And now, because she had prior convictions, she was facing this incredibly long sentence. She probably wasn’t going to get all that time, but you never knew, right? That’s the risk. And so I was encouraging her to take this deal where the prosecutor would agree not to ask for more than five years. And she said to me, you know, Mr. Forman, I don’t want that deal; I want a better deal. So I go to sit down with the prosecutor and try to get a better deal. And again, she’s a decent prosecutor, this person; I had worked with her before on some cases. She wasn’t, you know, she wasn’t a Jeff Sessions in her mentality. But she looked at the case file, and when I told her that my client was an addict and I wanted a program for her, not prison, she looks at the case file, she opens it up, and she shakes her head. And she says, I’m sorry, I can’t do it; my office won’t let me do it. She has two prior convictions, and both those times she was offered drug programs. And we cannot give her another space. Somebody who has never been offered a program deserves that space. And I was so frustrated, because we know–every bit of research knows, and probably your own life experience, since you talked about your brother in law–is that it frequently takes multiple attempts before people can kick these incredibly powerful habits that are addiction. And so, yes, she had been offered two chances in programs, and it hadn’t worked out, and now she was using again. But what I said to the prosecutor was, how come we never use prison, the failure of prison, as a reason not to give more prison? There’s never a moment where we say, ah, OK, well, prison hasn’t worked so we’re not going to try that again. But we do that with drug programs all the time. And along the same lines, I never once, in all my years of practice, did I ever hear a judge say, well, I’m not going to be able to sentence you to prison because we don’t have any more beds. We always find more beds. But for a program, even somebody like Tasha Willis–who everybody in the system agreed was an addict–that’s the thing. There was no dispute that she was an addict, and there was no dispute that if she had been a member of my family or of the prosecutor’s family or of the judge’s family, what would we have done? We would have found a program for her. I would have mortgaged my home for a family member to get them into a good program. Most of us would. But for somebody like her, who’s poor, who doesn’t have those resources outside the criminal justice system, all she has is what the criminal justice system is willing to offer her. And to get to your question of alternatives, we rarely have good alternatives to offer to prison. That’s our default. And until we fix that, until we move from a mindset that says people addicted on the street are a criminal justice problem, and move to thinking of them as a public health problem–until we make that transition as a society, we’re doomed to repeat the same failed policies generation after generation.

RS: Yeah, it’s interesting. This woman that you’re talking about also was not a criminal, except that we have drug laws.

JF: That’s right.

RS: She didn’t have–

JF: But no, her only–right, the only thing that she was doing that was illegal was using and selling drugs. That’s right.

RS: Right. But she hadn’t held anybody up, she didn’t pop anybody over the head, she hadn’t done anything. So how did we get these specific drugs to be such a big problem? And in your book, one of the big surprises for me is that the war on drugs, particularly for Washington, D.C., starts more about marijuana. And then we’re now at that stage, now, where we’re now thinking, OK, we’re going to decriminalize, and we are taking steps and so forth–and it occurred to me, is the war on drugs like the Cold War or something, that your military industrial complex needs it? Do we need a war on drugs? Does it feed a lot of other people on the other end? What’s your reading of this trajectory of this long, what, half century war that’s been going on?

JF: Well, to me, the fascinating–and my book starts with marijuana, and it was to me one of the most surprising and fascinating chapters in the book. Because in 1975, when this majority African American city council gets elected, one of the first things they take up is whether to decriminalize marijuana. And I didn’t even realize until I started this research that there was a movement to decriminalize marijuana in the 1970s, and that it was having some success; that a number of states passed decriminalization laws, President Carter was talking about raising it as a possibility, federal legislation. And in D.C., the person who promoted marijuana decriminalization was a guy named Doug Moore; he’s actually one of the white characters the few kind of white characters that is featured in the book. He was a city council member, went to Howard University Law School, worked with Martin Luther King in D.C., became a lawyer for poor people, ran for city council, won. And he saw this as a civil liberties issue and also as a racial justice issue, because there were racial disparities even then in who was getting arrested for marijuana. But the opposition to decriminalization came really from two places. It came from black ministers, African American ministers who felt like they couldn’t, we couldn’t afford to have black youth in our community using drugs, getting high, because of the fear that it would lead to more serious drugs like heroin. You have to remember, and I talk about this in the book, the 1960s was the first huge rise in the heroin epidemic in this country. In D.C. in 1963, three percent of the people were heroin addicts when they entered D.C. jail; by 1969, that three percent had become 45 percent. So now, when the city council is deciding whether to decriminalize marijuana and people are making this argument that marijuana might be a gateway drug to heroin, and African American ministers in particular are making the argument, it has a lot of resonance. Jackie Robinson, the baseball great, was going around to black churches in D.C. and otherwise saying, don’t decriminalize marijuana, because my son Jackie Jr. is a heroin addict, and he started on marijuana. So believe it when I tell you that it’s a gateway drug. So all of these messages were pouring forth, and it was helping to create an atmosphere and a climate of fear; we couldn’t afford to let up, even on a relatively minor drug like marijuana, because of the implications that it would have for the community. And then you have people like Stokely Carmichael who are saying, the drugs are a trick of the oppressor. You have people like Maynard Jackson in Atlanta, first African American mayor, who says, I’m trying to lead an army against racism and segregation, and you can’t lead an army if the troops are asleep. So you have all of these messages pouring forth from different aspects of the black community, and they’re all leading towards ending up supporting an aspect, a foundational aspect, of the war on drugs, which is criminalization of marijuana.

RS: [omission] I’m back with James Forman, Jr., author of Locking Up Our Own: Crime and Punishment in Black America. This is not some hippy-dippy book where you say, you know, it’s good to get high and so forth, at all. What this book is saying is that addiction is a medical problem.

JF: Yes.

RS: And it’s a complex problem. And throwing people in prison and throwing away the key is probably the lousiest–not probably, is the lousiest way to deal with it. It’s arresting the patient. And you point out in your book, you’re not even distinguishing between who sells it and who are the big cartels; you’re taking it out on this woman who’s trying to get her fix, so she sells a little bit on the side.

JF: That’s right.

RS: And so I want to make clear to people, Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr., is not a book about “just let it play,” you know? And it’s not a book that says there aren’t victims to the use of drugs; families have broken up; it is not good for a 15-year-old to be high and trying to go to school, and so forth. But what the book asserts very clearly is that we all, all of us who look the other way, are complicit in allowing the destruction of hundreds of thousands of lives in the name of a drug war, without paying attention to whether it was working, whether it was helping, what were its results. And, basically, because these people, the so-called thugs, criminals, drug fiends or what have you, were perceived as an irritant to out otherwise comfortable lives. I mean, I don’t want to put too much–

JF: Yeah. No, but I think your point, though, is a really good one, when I say I’m not, you know, this is, I’m not saying that there’s no harm here; in fact, quite the opposite, I document in great detail the pain that addiction causes individuals to their families. But one of the things that I argue is that we’re constrained, even well-intentioned people have been constrained by a lack of imagination about how to treat the problem. So one of the people that I write about, I mentioned Dave Clark supports decriminalization. Now, five years later, he’s the chair of the city council and he’s getting bombarded with letters from constituents saying, there’s an addict sitting outside on my front stoop, or sitting outside of my business–you have to do something about it, you have to fix this problem. They write him these letters. Now, he’s the chair of the city council and he does what we would want a responsible politician to do: he sends that letter to the head of a government agency, who responds back and says, OK, I’ve gotten your letter and I’m on it. And then he forwards that material to the citizen. So this is all good, right? But what’s the government agency that he forwards the letter to? Is it the Department of Mental Health? The Department of Alcohol and Addiction Rehabilitation? No. It’s the police department. Because in his mind, like so many Americans, we see an addict on the street and a citizen complaining, and our assumption is, that’s a police problem. And I’m not the one, and I don’t think the black community by and large has a libertarian view, which says, well, don’t do anything, just let him be out there; that’s not my argument at all. My argument is that, instead of thinking of it as a criminal justice problem, we need to think of it as a public health and a mental health problem. And if we do that, we’ll come up with a different set of solutions.

RS: Well, I’m talking to James Forman, Jr. The book is Locking Up Our Own: Crime and Punishment in Black America. And it’s a really quick read, I have to tell people who might not be inclined to just grab it. And it’s not depressing; [something] about a number of books that tell us the ugly truth about life, but also your book tells us we can do something about it. And I think doing something about it begins, as we started out in this discussion, thinking about these people in jail as our own. That, to my mind, is the key thing. And as I pointed out, when my brother in law had problems and other people I have known had had problems, plenty of them, myself included; I had a problem with alcohol, people gave me, you know, some support and I haven’t had a drink in a number of decades, but I had to recognize I had a problem. So we know addiction is real, we know it has consequence, we know it can mess up your lives in profound ways, addiction of all kind; no one’s being naive here. But you made a point in the book, and you repeated it here, that I think is really important: we judge treatment programs by a different standard than we judge imprisonment. Imprisonment, we don’t ask “Is it working?” We don’t ask about, you know, the recidivism rate. We don’t ask about whether better humans come out. We just assume those are people who can be discarded. And the issue for me is, do we think of those people as our own? OK? Because if they are locking up our own–well, think about it. They’re locking up your cousin; they’re locking up this neighbor that you’ve been close to, so forth. Then you discover, oh, wait a minute; no. That doesn’t work, prison, or it isn’t the best thing. And I’ll try an analogy here, because you come out of the Civil Rights Movement by birth; your father was a major leader in SNCC, the Student Nonviolent Coordinating Committee. And it’s interesting; we’ve had much better progress, in fact phenomenal progress, on the treatment of gay people in America. I’m not saying the struggle is over, but I’ve never seen such rapid social change. And the difference was–and somebody I’ve also interviewed for this show, a leading academic expert, Larry Gross, on gay life, he wrote a book called Up From Invisibility.

JF: Right.

RS: And what happened with gay people, when they came out of the closet, and the AIDS epidemic unfortunately had something to do with that, with celebrities and so forth like Rock Hudson–when it came up, people started to come out of the closet, people said–oh. Gay is not the pervert I’ve been hearing about, it’s that–oh, it’s that great schoolteacher I had, or it’s my doctor, or it’s my neighbor, and so forth. Or it’s my nephew or it’s my child, right? And then we discovered that gay people were us, right?

JF: Yup.

RS: That had been denied. What has happened with the ghettoization of racial groups, which is much easier–it’s harder to become invisible–and also with the imprisonment, is that basically we’ve assumed that this very large number of black and brown people–and I’ve got to throw brown people in there, particularly now with the crackdown on immigration and undocumented. We’re able to demonize these people, or regard them as [dispensable], as less than fully human, because they’re not us. OK?

JF: Yes.

RS: And then we’ll quickly say, oh, yeah, but I know James Forman and yeah, of course, I had lunch with him; what do you mean, I’m not prejudice. The fact is then, we have to introduce class.

JF: Well, I want to say something about invisibility. Because, right, the problem for African Americans has never been a problem of invisibility; we’ve always been quite visible in this country. We’ve been here from the beginning. The problem is slavery, and the problem is that this is a country that was founded–we had slavery in this country for longer than we have not had slavery.

RS: Let’s focus on that stat. I mean, I’ll let you go on, but that’s something we forget.

JF: Just think about that.

RS: We think it was a blip.

JF: Right.

RS: And then we think segregation was a blip. But that’s the vast majority of the history of this country.

JF: For 90 percent of this country’s history, we had either slavery or de jure Jim Crow. Now, think about the lies that a society has to tell itself to justify something as inhumane as either slavery or de jure Jim Crow. Right? The lies–the “black people are stupid, are inferior, are criminal,” right? “White people are better, are superior.” You can’t have slavery in a society, or Jim Crow in a society, without believing those things.

RS: Less than fully human. As the Constitution says.

JF: Right. And that doesn’t disappear quickly. That doesn’t just leave our consciousness with a march on Washington or the Voting Rights Act or the Civil Rights Act or the election of Barack Obama. That is part of what it means to be American, is to have this set of beliefs and to be born into this history. So we’ve all inherited it, and now we’ve got to struggle with it, right? But the first bit of struggling with it is owning up to it. Whenever I say that to people, we had slavery for longer than we haven’t, people stop short. Because it isn’t something that we tend to think about. When we study it in the history books, it’s like one, you know, tenth; it’s just one little episode. And then we move on to other aspects of our history. So I don’t think we’re going to make any progress until we really start with–unless we start with that, and really dwell on it and what it means.

RS: I want to put the onus back on the good guys: the media, the liberal democrats, and so forth. We have been party–I’ll put myself in that category. You know, my wife is now trying to help someone on death row in California; we may have the death penalty back, and so forth. You’re now at Stanford for a year, you’ve been at the top law schools in the country. What is it about the culture of legal education now that it accepts it? I mean, you went to work in the inner city, possibly because of your father and the example of your mother. But what about this disconnect? What do you–I mean, I’m sure a lot of students going to Yale Law School want to go work for Wall Street, right?

JF: It’s true, although I do think that we’ve seen a big shift in focus and attention on this issue, particularly on the issue of the criminal justice system in the last four or five years. I mean, I’ve been teaching courses on this topic for a number of years now, since I became a professor. And I now have long waiting lists for courses that, you know, back when I first started teaching them I might have ten or twelve people in a seminar on race and the criminal justice system, and now I have, you know, 20 people in the class and 60 people on the waiting list. So I think more and more people are talking about becoming public defenders. So I think that there is a rising consciousness around this issue. I think that, you know, you talked about this question of “our own,” right; and when are we, when are we going to think of people in the criminal justice system, people that are defendants, people that are charged with crimes–when and how are we going to think of them as part of us? Because that, in a way–and you’ve hit on it–it is the fundamental argument of the book. I think it’s easy, when we look at something like mass incarceration, to find villains, right? And there are some villains; I want to be clear about that. Barry Goldwater, Richard Nixon, George H. W. Bush and the Willie Horton ad–I mean, there are some clear villains here. But this is also a story about how all of us allowed this to develop. Here in California I just did a reading at San Quentin. There were 80 guys there. They all had read the book, it was the most amazing thing. Many of them knew my dad; they talked about being around in the 1960s, 1970s; some of them have been locked up for 30 or 40 years. Some of them are on relatively minor offenses, but they got caught up in three-strikes laws. Others committed serious crimes, but they’ve now been in for 40, 45 years; I’m talking to people that need more health and geriatric care than they need anything else. And they’re all in a state with a democratic supermajority in the House and in the Senate, and a democratic governor. And I walk around, I talked to my neighbors this year in Berkeley, and they talk about the criminal justice problem as if it’s an over-there problem, a Trump-states problem, an Oklahoma, a Louisiana problem. And I want to say no, no, no; I just came from San Quentin; it’s a Berkeley problem. It’s a San Francisco problem. It’s an Oakland problem. It’s an our problem. And that is, to me, is my most fundamental message, is that we all helped to create this, either actively or because we were silent. And now, that imposes a responsibility on all of us to respond.

RS: So that’s it for this edition of Scheer Intelligence. I’ve been talking to James Forman, Jr. His book is Locking Up Our Own: Crime and Punishment in Black America. The operative word is, phrase, “Our Own.” I want to thank Joshua Scheer and Rebecca Mooney for being the producers of this show. Our brilliant engineers are Kat Yore and Mario Diaz at KCRW. And Darren Peck here at Sports Byline in San Francisco has made these facilities available to us and is terrific. Thank you and see you next week with another edition of Scheer Intelligence.


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