How to dismantle the mass incarceration system
When James Forman Jr. was clerking for Supreme Court Justice Sandra Day O’Connor many years ago, she encouraged him to go to work for the Department of Justice or a national civil rights organization. No, he told her, he wanted to work as a public defender so he could represent poor people facing criminal charges there in Washington, D.C.
When O’Connor asked why, he explained that he saw it as “the unfinished work of the civil rights movement.” It was 1994, the tail end of a long tough-on-crime era, and the share of the nation’s prison population who were Black was approaching 50%.
“The criminal justice system, I told her, was where today’s civil rights struggle would be fought,” Forman wrote in his 2018 Pulitzer Prize-winning book, “Locking Up Our Own: Crime and Punishment in Black America.”
Now the J. Skelly Wright Professor of Law at Yale Law School, Forman says the country is coming around to the same conclusion, as the ways in which the criminal justice system operates have come in for increased scrutiny — and sharp criticism — over the past 20 years. His latest book project, “Dismantling Mass Incarceration: A Handbook for Change” (Farrar, Straus and Giroux), lays out an array of possible interventions and reforms of the many layers of the massive criminal justice system, and invites all concerned citizens to find a way to get involved.
Forman is one of three co-editors of the book, a collection of essays, excerpts, interviews, articles, and case studies from activists, journalists, lawyers, judges, and academics. He is joined by Premal Dharia, executive director of the Institute to End Mass Incarceration at Harvard Law School, and Maria Hawilo, a distinguished professor in residence at Loyola University Chicago School of Law. All three worked as public defenders in Washington, D.C. at different times during the 1990s and early 2000s.
The editors divided the book into six sections, each representing a stage of the criminal justice system: police, prosecutors, public defenders, judges, prisons, and “aftermath,” or the lifelong consequences of having been imprisoned. Because the system is broken in so many ways, the editors say, it offers countless ways for people to step in and work for change.
“Mass incarceration was built bit by bit, law by law, choice by choice, over generations, across our 50 states, Washington, D.C., the territories, and over three thousand counties,” they write in their introduction. “It will have to be dismantled the same way.”
Forman, who is also the faculty director of the Yale Law and Racial Justice Center, sat down with Yale News to talk about the unseen power of prosecutors, whether prisons can ever be abolished, and where reforms are already making a difference. The conversation has been condensed and edited.
Before we talk about the book, I think it would be helpful to set some context. Mass incarceration is very much an American phenomenon. How is this country different in this regard?
James Forman Jr.: Incarceration rates in the U.S. have always been somewhat higher than, for example, in Europe. In the 1920s through the ’60s they were roughly twice what you would see in many European countries. But beginning in the early 1970s, you began to see a steady increase in the incarceration rates in this country. And it just never slowed down. In the late ’80s, the U.S. passed Russia and South Africa to become the world’s largest jailer.
Incarceration Rates among Founding Nato Countries
If you look at it through the lens of race, this is an area in which things got demonstrably worse for Black Americans decades after the civil rights movement. A Black man born in the late 1960s was more likely to be incarcerated in his lifetime than a Black man born in my father’s generation.
The term “mass incarceration” was created in the year 2000, just to give you a sense of the relative recency of this. David Garland [a law professor at New York University (NYU)] hosted a conference at NYU called “Mass Imprisonment” to document this new phenomenon, including the disproportionate imprisonment of Black people. That term never took off, for whatever reason. Mass incarceration quickly replaced it and has been used ever since. A lot of my students grew up understanding this as a major civil rights issue, a human rights issue, a racial justice issue. But it’s relatively recent.
Of the book’s six sections, the one on prosecutors was the most eye-opening for me because I didn’t realize how much influence they have in driving up incarceration rates. Would you talk about their power?
Forman: I think a lot of people who are outside the system do not understand how much power the prosecutor has. We talk a lot about police and the police making arrests. But, for example, in Washington, D.C., where I practiced, any officer who has made an arrest then presents their paperwork to the papering office, which is to say the prosecutors who decide whether to initiate charges. A lot of cases get thrown out at that stage. But when the prosecutors do bring charges, they decide which charges to bring. A lot of offenses can be charged in multiple ways. The prosecutors decide how many charges to pile on for a particular violation of the law. They decide, for example, whether to charge it as a felony, whether to charge it as a misdemeanor. That initial charging decision could mean you’re facing a maximum of 10 years in prison or a maximum of one year. That’s a big, big difference, right?
And then that power continues to consolidate as they go through the system because over 90% of cases in this country plead guilty. Staying with this same example, you’ve been charged with this offense that has a maximum of 10 years. The defense argues to the prosecutor that it should be brought down to a misdemeanor, and if it is, you will plead guilty. The prosecutor decides whether to agree to that. And if they don’t agree, then you either have to plead to the most serious charge and get sentenced that way, or you go to trial and risk getting that maximum. All that power sits in the prosecutors’ hands.
The other thing to note is that 47 states elect their prosecutors. (They’re appointed in Connecticut.) So in the ’80s and ’90s, when everybody was trying to out-tough each other, that meant to get elected as a local prosecutor you had to run on a platform of, “I’m going to lock up more people than my opponent and keep them there for longer.”
There is a chart in your book that shows that as of 2019, 95% of elected prosecutors were white.
Forman: Yes, and this brings us to what the book is all about: how people in the system and people who are not in the system can work to make the system less harsh. The chapter on prosecutors is a great example of that because it’s the realm where we’ve seen the biggest change. Those elections presented an opportunity. Starting around 2015, people started to come together and say, hey, if we are worried about prosecutors having so much power, we could elect somebody who pledges to shrink the prison system. Somebody who’s going to say, “Let’s not charge people with possession of marijuana.” Prosecutors who say, “I bet that there are people who were convicted in the ’80s and ’90s who are sitting in prison who might be innocent. Let me set up a unit to review those cases.” These are the kinds of pledges that prosecutors made, and in a lot of communities, activists came together and worked to elect these people. In 2016, for the first time you had a whole slate of reform-minded prosecutors elected in local elections all over the country.
One of the contributors to that chapter, Paul Butler, wrote an opinion piece entitled “Should Good People Be Prosecutors?” He says no. In the introduction, you and your co-editors say you often get this question from your law students as they contemplate their career paths. What do you tell them?
Forman: The first thing I tell them is that it’s a good, hard, important question and one that every individual has to answer for themselves. In my opinion, there is not a right or wrong answer. I do give them Butler’s article if they haven’t read it, because they really have to grapple with it. But I also try to learn a bit more about what their motivations are. Once I’ve learned where they’re coming from, I tell them what I think are the strongest arguments on both sides. The strongest argument for going into the prosecutor’s office is the power and influence you will have — it’s your ability to do right in a system where a lot of people aren’t doing that. The strongest argument on the other side is that young lawyers think they are going to be able to change the culture of the office that they join. In fact, what happens is the culture of the office changes you. So if you’re going to do it, pick carefully and go to one of the offices where somebody at the top shares your vision.
Arguably, the most provocative arguments in the book are those calling for the abolition of prisons. I happened to see an article recently in The New Yorker that gave an overview of two new books that make this very argument. The writer, Adam Gopnik, called it “an admirable impulse,” but expressed great skepticism that it could ever happen, saying, “…anxiety over social disorder is a fact of democratic political life that cannot be wished away, and it tends to erode the kind of political power that remains the one means toward reform.” Do you think that societal anxiety can be overcome to get Americans thinking differently about mass incarceration?
Forman: I think the anxiety is real. But I would point to two examples that show there are ways to overcome it. When I was in law school, one of the biggest criminal justice issues was the death penalty. It was in the headlines all the time. It dominated the Bill Clinton race for president in 1992. The death penalty was a basic fact of life in America. Everybody assumed it would always be there. And opponents of ending the death penalty said, “If we did that, then crime would skyrocket.” Well, in 1996, at the peak, 315 people were sentenced to death every year in the United States. Last year, 21 people were sentenced to death. That’s a 90% decrease. That tells you that you can make a moral case that can overcome the fear Gopnik wrote about.
The other thing I would point to is juvenile incarceration rates. Again, in the ’90s, another thing that got an extraordinary amount of ink was the notion of juvenile super predators, that we had a new breed of violent young people. They were more violent than we’d ever seen in history. They were irredeemable. Hillary Clinton infamously used the term in a talk and had trouble living it down for the rest of her political life. In a lot of ways, I think it’s unfair because it just showed how widespread the sentiment was; it was being tossed off in a lot of corners in this country. Again, people said, “If we lock up fewer young people we’ll see chaos in the streets, carnage, bloodshed.” Well, the juvenile incarceration rate hit its peak in 2000. Since then, there’s been an 80% decline.
To me, those two issues prove that there is room to persuade. We can show people that there are better and fairer ways to create public safety than mass incarceration.
There are many highly accomplished scholars like yourself here at Yale who are actively working on various aspects of reforming the carceral state. I’m thinking of Emily Bazelon, Tom Tyler, Tracey Meares, Miriam Gohara, Phillip Solomon, Elizabeth Hinton, Monica Bell. And then of course there’s the Yale Prison Education Initiative [PEI] at Dwight Hall. Is Yale unusual in this regard or is this a burgeoning area of study at many universities?
Forman: I think it is some of both. Yale is a leader in this field, but it is also growing everywhere. There’s a whole generation of people who came of age at a time when books like “The New Jim Crow” by Michelle Alexander and Ta-Nehisi Coates’s “Between the World and Me” and Bryan Stevenson’s “Just Mercy” came out, along with movies and articles that together really created a sentiment that this is one of the most profound social problems of our day. And from an academic standpoint, it draws people in because the system is so massive and sprawling, there’s a lot to study. It’s not hard to identify new pathways of research for people. And it interests our students. So the universities have to hire people to teach.
I really had my first inkling of how big a deal this was when I taught at the University of Michigan back in 2004. I had just left the public defenders’ office and was kind of getting my feet wet in an academic setting. I offered a class called “The War on Drugs” as a seminar. I had room for 18 people and 100 people applied.
One thing I particularly liked about the book is that you didn’t pick sides on how to address some of these problems. Every section includes different points of view on how to go about reform, which allows the reader to weigh the arguments. But are there particular reform efforts that have made great inroads, aside from the election of more-progressive prosecutors?
Forman: Absolutely. One of the areas where we have seen great progress is captured in an essay included in the section about police and co-authored by one of my colleagues, Monica Bell. It concerns the efforts to create crisis response teams that can be used in circumstances where somebody wants help, but the help they need isn’t best provided by a police officer. The police developed the 911 system 40 or 50 years ago and it’s been incredibly successful. But what if somebody in crisis really needs a mental health counselor or a drug treatment specialist or a bed in a shelter — not someone with a gun and handcuffs who will take them to jail? There are now about 100 cities that have crisis response teams, including New Haven. They’re not big enough. They’re not well-funded enough. They don’t always have the services to bring a person to. There’s still a lot of work to be done. But that idea to me is one of the most exciting for its impact.
Another is education in prison. We have an excerpt from Clint Smith about the importance of restoring Pell Grant eligibility for incarcerated persons. And we have an excerpt from Lori Pompa about the Inside-Out Prison Exchange program, which I have taught classes in. I think that should be elevated because we are a university. And the single most important point in the book is that there is something that every single person can do. Typically, the thing you should do is the thing that you’re best at. And universities are expert at teaching. With Yale’s PEI and other programs like it, university professors — and in the case of Inside-Out, university students as well — are going into prisons, which are places of maximum isolation. Places where people feel so forgotten and ignored. They are going in and helping to make them vibrant, lively intellectual spaces. Bringing college classes into prisons changes in a fundamental way what that prison experience can feel like, and there is robust research that shows that it changes the life outcomes of people who participate in those programs.