Out of Sight, Out of Mind: On Locking up Our Own

If anyone doubted Black Americans still today suffer unfairly from incarceration rates and other horrific inequities out of all proportion to their numbers in the population, the case was closed by Michelle Alexander in her masterly The New Jim Crow (2010). Comes now James Forman Jr., to argue convincingly that key sections of the black community themselves abetted the criminalizing of black youths in a misguided effort to make so-called law and order work for them.
Adam Shatz
May 4, 2017
A police captain in Washington, DC hangs a recruiting poster announcing police examinations to be given in predominantly Black neighborhoods in 1968.
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By James Forman Jr.
Farrar, Straus and Giroux, 306 pages 
Hardcover:  $27.00 
April 18, 2017
ISBN: 978 0 374 18997 6
 
 
 
One of the great paradoxes of the Obama era is that it encouraged so many liberals, both black and white, to see the black experience in America not as a slow, arduous struggle for freedom culminating in the election of a black president – Obama’s version, not surprisingly – but as an unending nightmare. Not least among the reasons was that a black man of unerring self-discipline and caution, bipartisan to a fault, should have provoked such ferocious white resistance – fanned by the man who questioned the validity of his birth certificate and then succeeded him as president. This most eloquent champion of ‘post-racialism’ may have been the most powerful man in the world, yet he remained a prisoner of his race, of his ‘black body,’ as Ta-Nehisi Coates put it in Between the World and Me. In the face of repeated police shootings of young black men or atrocities such as the church massacre in Charleston, South Carolina, Obama did little more than deliver one of his formidable speeches. And – as he did in Charleston – sing ‘Amazing Grace’, as if only a higher power could cure America of its original sin, and end the nightmare.

That nightmare began in the early 17th century, when Africans were packed into slave ships and transported to the American colonies, where they – or those who survived the Middle Passage – were sold at auction, stripped naked for the perusal of prospective buyers. With the defeat of the South in the Civil War – by 1804, all the northern states had abolished slavery – four million slaves won their freedom. Under the protection of federal troops, they gained the right to vote, and to elect representatives to state legislatures and the US Congress, in the unfinished revolution known as Reconstruction. But the forces of white supremacy in the former Confederacy proved resilient and inventive, and succeeded in overturning the gains of Reconstruction: black captivity wasn’t liquidated so much as reconfigured. When the last federal soldiers left the South in 1877, Southern legislatures passed a series of laws that mandated segregation in public facilities (housing, schools, restaurants, drinking fountains and bathrooms), and banned interracial marriage. White tyranny was also enforced by a sharecropping system that kept black farmers tied to the land; a ‘poll tax’ and literacy tests that prevented blacks from voting; elaborate codes of deference to white authority that black men defied at risk to their lives; and lynchings, which many whites attended with their families for pleasure. (Between 1877 and 1950, nearly four thousand black men were lynched.) This brutal racial caste system, which lasted from the late 19th century until the mid-1960s, when the Civil Rights and Voting Rights Acts were signed into law, was known as ‘Jim Crow’ (the origins of the term remain mysterious). Perhaps the greatest lie of Jim Crow was that segregation meant ‘separate but equal’. During and after the First World War, many of the South’s black captives voted with their feet in the ‘Great Migration’ to the North. They settled in the slums of Chicago, New York and Los Angeles under a form of residential segregation they would discover to be no less thorough, and sometimes no less ruthless, for being ‘de facto’ rather than ‘de jure’. As Malcolm X remarked, ‘the Mason-Dixon line begins at the Canadian border.’

In 1964 even Nina Simone, no racial optimist, could sing ‘Old Jim Crow, don’t you know, it’s all over now!’ But in the early 1990s, many blacks started to wonder if they were becoming victims of a new Jim Crow. Its targets appeared at first glance to be more limited – young black people who committed drug-related crimes, rather than blacks as a caste – but its reach was national, and the lure of the drug economy would prove hard for poor blacks to resist.

By the early 2000s, the number of Americans behind bars had grown from 350,000 in 1972 to more than two million, and an increasing proportion were black: a larger percentage, in fact, than in apartheid South Africa. The risk that an African American would be incarcerated at some point in their lifetime had doubled since Brown v. Board of Education, the 1954 Supreme Court decision outlawing school segregation; and more black adults were under the control of the criminal justice system – whether in prison, on probation or on parole – than were enslaved in 1850. Once again, it seemed, the defeat of one system of racial oppression had given birth to another, only this one was concealed by the ennobling rhetoric of ‘colour-blindness’, as well as the fact that it appeared to be protecting Americans from crime. As the contours of this system of mass incarceration became visible – inspiring television shows like The Wire and Orange Is the New Black – the New Jim Crow thesis travelled from black radio and the church to academic journals. Its most articulate exponent was Michelle Alexander, a professor of law and civil rights attorney who had at one time considered the comparison between Jim Crow and mass incarceration ‘absurd’. In her study The New Jim Crow (2010), she argued that the new version differed from the old only in ‘the language we use to justify it’:

Rather than rely on race, we use our criminal justice system to label people of colour ‘criminals’ and then engage in all the practices we supposedly left behind … Once you’re labelled a felon, the old forms of discrimination – employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service – are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

Alexander’s argument was a fairly straightforward backlash thesis. Just as Jim Crow was an attempt by Southern whites to roll back the gains former slaves had won during Reconstruction, so the New Jim Crow was designed to reverse the progress black people had been making since the civil rights struggle of the 1950s and 1960s. Now that brazen appeals to racism had fallen out of fashion, they had to be replaced by the more insidious rhetoric of ‘cracking down on crime’. When Nixon devised his ‘Southern strategy’ to win over the white ‘silent majority’ in the 1968 presidential elections, his slogan was ‘law and order’. The blurring of the distinction between criminality and protest appealed to whites who were as frightened by the uprisings in Harlem, Watts, Newark and other places as they were by the rise of urban crime and heroin use. As Nixon’s advisor H.R. Haldeman recalled, Nixon ‘emphasised that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognises this while not appearing to.’ The result, Alexander argued, was a system far less vulnerable to civil rights protest than the old Jim Crow, because it was insulated from charges of bias by ‘colour-blind’ language, and also because it no longer required ‘racial hostility or overt bigotry to thrive’, only ‘racial indifference’, which was plentiful among whites who felt that blacks no longer had cause for complaint. The system was further strengthened by its spatial isolation: prisoners were out of sight and out of mind.

 
 
 
Nixon, who declared the first War on Drugs in 1971, presided over the birth of mass incarceration, but there was a dramatic escalation under Reagan, who launched his own War on Drugs in 1982, at a time when less than 2 per cent of Americans considered drugs to be the most important issue facing the country. This was also the year crack arrived, devastating poor black neighbourhoods already shaken by the loss of industrial jobs. In 1970, about 70 per cent of black employees in urban centres had blue-collar jobs; by 1987, the figure was 28 per cent. As poor black neighbourhoods fell prey to crack, even ostensibly liberal magazines such as the New Republic were full of lurid stories about ‘crack whores’, ‘crack mothers’ and their ‘crack babies’. Rather than expand rehabilitation and treatment programmes for addicts, the federal government, under both Republican and Democratic administrations, responded with increasingly punitive measures, in particular mandatory minimum sentences; police procedures that seemed to ignore the Fourth Amendment, which protects against unreasonable searches and seizures; and the use of Special Weapons and Tactics (SWAT) teams, paramilitary units often advised by soldiers who served in America’s overseas wars and military occupations. Like any war, the War on Drugs led to profiteering: police officers made drug busts with an eye to seizing assets (cash, homes, cars), which, through revenue-sharing agreements with the federal government, the police were allowed to keep for their own use. Police departments, prison administrators and towns where prisons were located all had considerable investments in the war economy.

Although a similar proportion of black people and white people use drugs, blacks have always been disproportionately affected by the War on Drugs. SWAT teams seldom sweep through the suburbs in search of white cocaine users. Under the ‘100-1 rule’, anyone caught with fifty grams of crack was sentenced to ten years in prison, while dealers of powder cocaine had to be caught with five kilos – a suitcase full – to receive a comparable sentence. (The disparity was reduced in 2010 to 18-1.) Young black men, not white teenagers, have been the principal targets of arbitrary searches, which the Supreme Court ruled that police officers could conduct if they had a ‘reasonable articulable suspicion’ that the target might be involved in criminal activity. The court also sanctioned the so-called ‘pretext stop’, in which police use trivial traffic violations as an excuse to search for drugs or weapons – a practice applied to black drivers six times more frequently than to whites. According to a highway patrol officer quoted by Alexander, ‘You’ve got to kiss a lot of frogs before you find a prince.’ The court has proved largely indifferent to these racial disparities, on the grounds that they do not constitute lawful discrimination unless discriminatory intent can be proved, which is almost impossible.

By 2000, black people were being imprisoned for drug offences at a rate 26 times higher than in 1983. (The rate for whites increased by a factor of eight; for Latinos, 22.) What’s more, Alexander showed that once you’ve been sentenced for a drug felony, you’re effectively sentenced for life. Having a record is enough; it doesn’t matter whether or not you’ve actually served time. You become a member of a despised ‘undercaste’, excluded from, and ostracised by, mainstream society. You are ineligible for welfare and food stamps, and can be banned from federally funded public housing, thanks to laws passed by Bill Clinton, who transformed the Democratic Party into a tough-on-crime party. (One reason Hillary Clinton was so unpopular among ‘woke’ young black voters was her support for such policies – which she belatedly apologised for – as well as her racially inflammatory talk of ‘super predators’.) If you want to restore your right to vote, you have to go through a bureaucratic process as onerous as the poll taxes and literacy tests of Jim Crow. Prosecutors can disqualify you from serving on a jury, without explanation. If you try to get a job, you’re likely to read in the employer’s advertisement a warning that felons are not welcome; this is perfectly legal. This cycle of punishment, shaming and exclusion all adds up to a more or less permanent condition of internal exile – what Orlando Patterson, in his 1982 book on slavery, called ‘social death’. Orange may be the new black on American television, but off screen – as a minister in Mississippi told Alexander – ‘felon’ is ‘the new n-word’. Except that the ‘genius of the new system of control’ is that ‘felon’ isn’t a racial epithet and ‘can always be defended on non-racial grounds’.

*

For much of the 1980s and 1990s, when the War on Drugs was at its height, it could count on a significant measure of support from black leaders and politicians, as Alexander herself concedes. Black people had often supported policies such as harsher sentencing laws, if only because they were more likely to live, or know someone who lived, in crime-ridden neighbourhoods. They had also been denied better options, such as an infusion of jobs and investment in the inner cities: the domestic Marshall Plan many black politicians had long championed. Worse, the ‘politics of respectability’, a prim, middle-class tradition of black protest, had led civil rights leaders to turn away in shame and embarrassment from convicts, the ‘most stigmatised members of the community’, and to focus instead on traditional, consensual demands such as affirmative action and civil rights enforcement. That the New Jim Crow was built and sustained with so little organised opposition from the people it most affected – and, indeed, with their ‘complicity’ – was nearly as scathing an indictment of the civil rights leadership as it was of white America.

The New Jim Crow was initially ignored by the white intellectual establishment, which gave as little credence to its thesis as Alexander herself once had, but thanks to black readers it became a surprise bestseller and inspired a wave of new scholarship, as well as documentaries such as Ava Duvernay’s 13th (in which Alexander appears), about the 13th Amendment to the Constitution, which abolished slavery and involuntary servitude except, crucially, as punishment for a crime. Alexander’s thesis was embraced not only because she provided such extensive documentation for her argument, but because she gave a name to a scandalous reality: the unfreedom in which an increasing proportion of America’s black population lived, more than half a century after the end of legal segregation. In effect, she gave mainstream credibility to something many in black America had long suspected: that the mass imprisonment of black Americans amounts to a continuation of white supremacy, however much it is veiled by the colour-blind rhetoric of fighting crime; that black and brown people serving time for drug offences are prisoners of war, a war, moreover, that can never be won. The New Jim Crow has exerted an influence enjoyed by few other works of social science in America, transforming the way many Americans, of all races, understand their society. It has become ‘the secular bible for a new social movement in early 21st-century America’, Cornel West writes in his introduction to the 2012 edition. It is in no small part thanks to Alexander’s account that civil rights organisations such as Black Lives Matter, which emerged in 2013 in protest against police killings, have focused so much of their energy on the criminal justice system. Ta-Nehisi Coates’s powerful memoir rode this wave of indignation, but Alexander helped create the wave.

It is difficult to criticise a bible, particularly one written with as much insight, rhetorical power and moral authority as The New Jim Crow. When James Forman, a law professor at Yale and the son of a prominent civil rights activist, first presented his criticisms of Alexander’s argument, colleagues nervously asked him why he was ‘critiquing a point of view that is so aligned with your own’. He agreed with Alexander that mass incarceration had turned convicted criminals into members of a stigmatised caste, condemned to second-class citizenship. He also agreed that one of the most destructive effects of mass incarceration was to lead the wider society to see poor black men as potential threats, social outcasts whose rights could be violated with impunity. But he believed that Alexander’s thesis obscured ‘some important truths’. One of them, he wrote in a 2012 paper entitled ‘Beyond the New Jim Crow’, is that mass incarceration is confined to ‘the poorest, least educated segments’ of black communities, much as it is among whites, still the largest group in US prisons. It could not therefore be said to ‘define’ the black condition, in the way that Jim Crow, whose restrictions affected all black citizens in the South, once did.

Another gap in what he called ‘the New Jim Crow thesis’ was the importance of violent crime, as opposed to non-violent drug offences, in the rise of mass incarceration. While Alexander insisted that ‘nothing has contributed more to the systematic mass incarceration of people of colour in the United States than the War on Drugs,’ Forman pointed out that only 25 per cent of America’s 2.3 million prisoners are drug offenders. Even if all of them were released tomorrow, America would still have the largest prison system in the world, and many of its inmates would be black and Latino men convicted of violent crimes. Nixon’s war on crime may have been cynical, but he wasn’t lying about the crimewave itself: reported street crime quadrupled, and homicides doubled, between 1959 and 1971. And as crime, particularly violent crime, surged in the inner city, so did black support for tough-on-crime policies, with the result that blacks were ‘actors in determining the policies that sustain mass incarceration in ways simply unimaginable to past generations’. This support went deeper than ‘complicity’, to borrow Alexander’s term; it often reflected a ‘pro-black’ concern for people living in neighbourhoods white police had neglected, precisely because whites didn’t live there. In fact, the incarceration rates in Washington, DC, the black-majority city where Forman worked as a public defender, were roughly equal to those in cities where black people had far less influence over sentencing policy. Racial bias alone could hardly explain why a ‘chocolate city’ like DC was locking up so many of its own.

Forman’s eloquent new book, Locking Up Our Own, is about the politics of race, crime and punishment in DC. A gritty, often revelatory work of local history, interspersed with tales of Forman’s experiences as a public defender, it is a much quieter book than The New Jim Crow, more sombre in tone and more modest in its aims: it is not the kind of book that inspires a movement. As in his paper on The New Jim Crow, Forman isn’t interested so much in debunking Alexander’s account as in supplying richer contingency, irony and complexity. Where she sees a clear political project driving the growth of the prison system, he sees a series of small steps that, together, created something monstrous and seemingly indestructible. To borrow the terminology used by historians of the Final Solution, he is a ‘functionalist’, while she is an ‘intentionalist’. Another difference between them is his belief that blacks helped to create this system, driven less by shamefaced ‘complicity’ than by a desire to protect other black lives. Washington’s citizens, activists and politicians chose to lock up their own, Forman argues, often with the best of intentions, and with consequences most would come to regret.

*

The rise of mass incarceration in the early 1970s was, of course, fuelled by white fear of black crime. But the fear of crime wasn’t confined to whites. Blacks in inner cities had far more reason to be afraid: they lived in poor areas where crime was more widespread, and where the police were often absent. White defenders of the police – the ‘Blue Lives Matter’ movement – often claim that inner-city blacks protest only in cases of police violence, never against the actions of black criminals. On the contrary, Forman writes, ‘African Americans have always viewed the protection of black lives as a civil rights issue, whether the threat comes from police officers or street criminals.’ Under-policing, a systematic negligence of black safety, has angered them as much as over-policing: harassment, brutality and unprovoked killings.

Forman reminds us of something buried in Alexander’s account: ‘the astonishing levels of pain, fear and anger’ that gripped black communities during the heroin epidemic of the late 1960s. By June 1969, Forman notes, 45 per cent of the men in DC jails were heroin addicts; two years later, there were 15 times as many addicts in the capital as in all of England. ‘This was a black nation fresh off the battlefields of Selma and Watts,’ and ‘few doubted that blacks were a minority tribe under continual assault.’ Drugs were the latest existential threat to the nation’s survival – in Stokely Carmichael’s words, ‘a trick of the oppressor’ to keep down the black man. Hassan Jeru-Ahmed, a community activist and former heroin addict, criticised methadone programmes as ‘substituting one addiction for another’, and railed against drug dealers as ‘black-face traitors of our people who sell dope to our young boys and girls and make whores and thieves of them’. The sign outside the organisation he ran in the late 1960s, the Blackman’s Development Centre, read: ‘THIS IS DRUG CURE, NOT METHADONE MAINTENANCE.’ Styling itself as a nationalist anti-drug paramilitary group, the BDC fought heroin use by any means necessary, sometimes reporting users to the police or turning in dealers, sometimes meting out popular justice.

The BDC disintegrated, but one of Hassan’s spiritual protégés, a local nationalist called Douglas Moore, took up his cause in the mid-1970s on the city council. Long controlled by racist Southern Democrats, DC won the right to elect its own mayor in 1973, when Congress passed the Home Rule Act; a year later, it elected a black mayor, Walter E. Washington, thereby joining a group of major cities led by black politicians. A number of these cities – Cleveland, Detroit, Newark – would be ravaged by deindustrialisation, but at the time they were laboratories for black political power. Washington’s victory was particularly sweet. It inspired the cover art of Parliament’s album Chocolate City, depicting the Lincoln Memorial, the Washington Monument and the Capitol Building ‘coated in chocolate’. ‘They still call it the White House,’ George Clinton said on the title track, ‘but that’s a temporary condition, too.’

In 1975, David Clarke, a white civil rights lawyer on the city council, introduced a proposal to decriminalise marijuana possession. He pointed out that marijuana arrests had increased by 900 per cent, that 80 per cent of those arrested were black, and that these arrests could leave a ‘lifelong stigma’. Whites in DC mostly supported the reform, which they saw through the lens of civil liberties and individual freedom. But Douglas Moore, who led the opposition to Clarke’s proposal, argued that marijuana was a gateway to heroin, and therefore a threat to black empowerment. ‘I want a strong, virile black thinking population,’ he said, and decriminalising pot would ‘make it possible for more black children who cannot think already to keep them from thinking’. Moore was echoed by the Superior Court judge John Fauntleroy, one of DC’s first black justices, and by Andrew Fowler, an influential black pastor. That Clarke was white made the policy of decriminalisation particularly susceptible to attack. Some, like Moore, suspected a plot to weaken blacks (he would later oppose gun control for the same reason); others accused white liberals like Clarke of ignoring the destructive effects of drug addiction on an oppressed community that had only recently won the right to vote. The Marijuana Reform Act was passed by eight votes to four, but it needed to be voted on a second time, and the black church lobbied successfully for its defeat.

Among the fiercest advocates of harsher sentencing for drug offences were black police officers. Forman tells the ambiguous story of these ‘representatives of their race’ in a remarkable chapter on the career of Burtell Jefferson, who became DC’s chief of police in 1978. Born in 1925, Jefferson grew up in an era when the mere idea of joining the police was unfathomable for blacks. The city of his youth was Southern and segregated, and like most Southern police forces, Washington’s had grown out of the slave patrols whose purpose was to control, discipline and punish blacks. Police brutality was common in black DC, and was almost never punished, even when it resulted in death. When the first black officers were hired, they were assigned to black neighbourhoods like the 9th Ward, never to white areas. Jefferson started out in the 9th Ward, and with his friend and fellow black officer Tilmon O’Bryant, organised a study group to train black officers for the exam they needed to pass to be promoted. The Jefferson study class became legendary: not only did it result in the integration of the police force at higher ranks, it launched the careers of more than twenty senior black police officers, who went on to work in other major cities. ‘But that’s where the celebration ends,’ Forman writes. For all his efforts to end discrimination inside the police force, Jefferson did little to curb discriminatory policing, or police brutality, in black neighbourhoods. He also became a defender of the War on Drugs, and of mandatory minimum sentences that undermined the discretion of judges in favour of prosecutors.

As Forman emphasises, Jefferson was hardly unusual. The National Organisation of Black Police Executives also called for a ‘nationwide war on drugs’ and mandatory minimums. The integration of a white-dominated police force was, of course, a civil rights victory, but did black police officers behave any differently from whites when they were patrolling the inner city, as civil rights activists had hoped? Some early studies indicated that black officers tended to perform better than whites in black neighbourhoods, but whatever racial kinship they felt was often frayed by class difference, not to mention the stress and danger of police work, and they were sometimes harsher than whites in punishing minor crimes. ‘It turned out that a surprising number of black officers simply didn’t like other black people – at least not the poor blacks they tended to police.’

*

In The New Jim Crow, Alexander depicts the War on Drugs as a war on black America, but, as Forman shows, the war intensified already existing class divisions among blacks. When open-air drug markets began to emerge in DC in the late 1970s, local activists and politicians joined Burtell Jefferson in calling for longer mandatory drug sentences, including 15 years for the sale of heroin. In 1982, John Ray, a black city councilman, proposed a bill to introduce mandatory minimums for violent offenders and drug dealers. It passed with 73 per cent of the vote; the only precinct where it failed to attract a majority was a wealthy, mostly white area near Georgetown. As Forman notes, the racial impact of mandatory minimums had not yet made itself felt, and the notion of ‘non-violent drug offenders’ was inconceivable: drugs and violence were all but synonymous. For black people in working-class neighbourhoods, most of whom did not use drugs, harsher sentences and tougher policing provided a short-term fix in the absence of a national commitment to provide the investment, jobs and schools that might have addressed the root causes of crime. By the early 1980s, they were worried that unless extreme measures were taken, their communities would be destroyed.

But things were about to get worse: the crack epidemic of the mid-1980s caused far more destruction than heroin had, partly because of the nature of the high, but largely because it arrived as factories moved overseas, the urban economy was gutted, and the Reagan administration slashed protections for the poor. Concentrated in slums that middle-class and even working-class blacks had fled for the suburbs, the black poor had never been more vulnerable. In the famous words of an NAACP leader, crack was ‘the worst thing to hit us since slavery’. DC became America’s ‘Murder Capital’, as guns, including Uzis and other military-grade weapons, poured into the city; around half of the 483 murder victims in 1990 were black and under 25. During the Gulf War, the army sent surgeons to train in DC hospitals, on the grounds that they had ‘begun to resemble military trauma units’.

Hardly anyone was left unscathed, thanks not only to the drug dealers, but to the police, emboldened by the ‘warrior’ style of law enforcement that took hold in some cities in the 1980s. Forman witnessed this while working in a charter school he helped found. His students – many of whom had lost relatives to violence, addiction and prison – were frequent targets of police raids. All of them were black, but so were most of the officers. Whenever his pupils gathered outside the school, they were at risk of a ‘stop-and-frisk’ search, in which they were forced to ‘assume the position’: legs spread, faces to the wall, hands behind their heads. They were a potential threat merely because they were on the street in a ‘high-crime’ community.

For most whites, cities like DC might as well have been Baghdad. Whites, who never doubted that the police’s job was to protect their lives and property, adjusted rather easily to the expansion of police powers over black Americans. They were mostly unmoved by the argument that drug use and crime among poor blacks were the result of economic deprivation, discrimination and racism, or that society had a responsibility to remedy these problems. The military revolution in American policing was never evident in their communities, although it would be portrayed on TV shows where the police were seen as modern-day gladiators.

Forman is well aware that ‘racialised fear’ drove the federal government’s response to crack, particularly the 100-1 cocaine-crack sentencing ratio. But he shows that black leaders also embraced the war rhetoric, not so much to placate whites as to reassure black people of their commitment to black safety. In his 1988 presidential campaign, Jesse Jackson proclaimed himself ‘the general in this war to fight drugs’; Charles Rangel, Harlem’s longest-serving congressional representative and one of the most powerful figures in New York’s black political machine, was second to none in his opposition to drug decriminalisation. There were 130 police departments led by black police chiefs, including Ike Fulwood, who became DC’s senior police official in 1989, a year after the city’s ‘year of shame’, marked by a series of crack-related murders. A protégé of Burtell Jefferson, Fulwood was intimately acquainted with the impact of the drug war: his brother Teddy, a longtime addict, was awaiting trial for crack possession at the time of his swearing in. Fulwood sometimes expressed sorrow about the scale of arrests in DC – they were ‘a sad commentary on the situation in the District’ – but this did not make him a reformer. Operation Clean Sweep, which he set up, led to the formation of specialised units modelled on military special forces. ‘This is the jungle,’ one officer in the Rapid Deployment Unit said. ‘We rewrite the constitution every day down here.’

In the first 18 months of the operation, the DC police made 46,000 arrests – one for every 14 residents. They seized cars, houses and jewellery purchased with drug money. Female prisoners were raped with impunity; those who protested at being arrested were put into solitary confinement. In spite of these tactics, which won the support of the Afro, the city’s leading black newspaper, the murder rate continued to rise. In 1992, Fulwood resigned; a few months later his brother Teddy became the 401st murder victim of the year, shot dead a few blocks from the home where they grew up.

By then, the racial disparities of the drug war – and its failure to stop drug trafficking or violent crime – had become so flagrant that black support for it was eroding. But – and here Forman departs significantly from Alexander’s account – the drug war was no longer the primary means by which black people were ensnared in the prison system. It was merely another front in a broader, and increasingly militarised, war on crime in poor communities. In 1995, Forman’s client Sandra Dozier was driving home with her two-year-old daughter when she was stopped by officers (one of whom was black) because her windows were allegedly too heavily tinted. This kind of ‘pretext stop’ was first used during the drug war, but in DC in the mid-1990s its purpose was to search for weapons, as part of a programme called Operation Ceasefire. Dozier didn’t have a weapon, but the officers found a small amount of marijuana in her glove compartment. She began to cry, because she had just been hired by FedEx, which required proof of a clean criminal record. Although the charges were dropped, the arrest was not removed from her record and she lost the job, all because of a ‘single line on a Superior Court printout’.

The architect of Operation Ceasefire was a much admired ‘race man’, Eric Holder, the first black man to serve as attorney general for DC; he was later Obama’s attorney general. In a speech on Martin Luther King day in 1995, Holder said that King hadn’t fought against Bull Connor, the racist police chief of Birmingham, Alabama, so ‘we’ could ultimately lose the struggle for civil rights to ‘misguided or malicious members of our own race’. The target of the operation was violent criminals, but the police interpreted their mandate more broadly, and people like Dozier paid a high price. Drivers in predominantly black neighbourhoods were no more likely than whites to be in possession of drugs, but they were far more likely to be stopped, searched and arrested than whites, or the upper-middle-class blacks of the racially mixed, prosperous neighbourhoods of the Second District, which was explicitly excluded from Operation Ceasefire.

In 2013, the DC city council reversed its 1975 decision on marijuana, substituting criminal penalties for possession with a small civil fine, a move backed by the most culturally conservative institution in the black community, the church. Now the crack epidemic was over and the rate of violent crime was falling, black Americans saw mass incarceration, not drug addiction, as the greatest calamity to affect them since the defeat of legal segregation. Obama and other black lawmakers, many of them influenced by The New Jim Crow, crafted a reform agenda that emphasised reducing penalties for non-violent drug offenders. Incarceration levels began to fall somewhat, and by 2014, as Forman noted recently in the New York Times, the incarceration rate for black men had dropped by 23 per cent from its peak in 2001.

The problem with the emphasis on non-violent drug offenders, however, is that they account for only about a quarter of prison inmates. (The number of marijuana offenders behind bars is particularly low: six out of every ten thousand prisoners.) Before mass incarceration can be dismantled, Forman argues, another border will have to be crossed, allowing a more merciful attitude towards those who have committed violent crimes, a disproportionate number of whom are black, brown and poor. If you think this line can’t be crossed, he says, consider The Wire. Apart from the heroin addict Bubbles, none of the characters involved in dealing ‘would be eligible for clemency under the Department of Justice’s guidelines’, yet admirers of the show don’t think of it as ‘being primarily about a bunch of ruthless thugs’. That’s because the violent acts of people like Omar, Avon Barksdale and Stringer Bell are ‘not the only things we know about them’, or that define them.

*

Whether Americans can cross this border in real life is another matter. Fear of crime is etched into the American political unconscious, albeit that it is sometimes expressed as fascination, even envy, notably by white fans of gangsta rap. A more forgiving attitude has developed in black and Latino communities, if only because so many of their children have been trapped in the prison system. Punitive attitudes among whites will be much harder to dislodge. A growing number of white politicians, including conservatives like Newt Gingrich, have become critics of mass incarceration, and unlikely converts to drug rehabilitation, both because of the enormous cost of the prison system, and because more and more disaffected young whites – many of them in Trump country – have succumbed to heroin and crystal meth addiction. According to the New York Times, drug overdoses have increased the death rate of young white adults in the US to higher levels than at any time since the Aids crisis, making theirs the first generation since the Vietnam War to experience higher death rates in early adulthood than the preceding generation. (As the law professor Ekow Yankah noted, ‘white heroin addicts get overdose treatment, rehabilitation, and reincorporation,’ while ‘black drug users got jail cells and “Just Say No”’ – the anti-drugs advertising campaign fronted by Nancy Reagan.) But new doubts among white politicians haven’t translated into an understanding of the uniquely destructive impact that mass incarceration and warrior policing have had on black lives, much less into support for a radical overhaul of the criminal justice system.

The racial obstacles to white compassion were on distressing display during Obama’s second term. The deaths of Eric Garner in Staten Island, Michael Brown in Ferguson, Freddie Gray in Baltimore, Tamir Rice in Cleveland, Walter Scott in North Charleston and Philando Castile in Minneapolis were grisly evidence that the use of lethal force by the police against black people was a national problem. As Franklin Zimring demonstrates in a careful statistical study, When Police Kill, police are less at risk of death in the line of duty, thanks to the growing sophistication of police armour, but killings by the police have not declined, and the ‘kill ratio’, once 3.8 for every officer killed, now stands at 15 to 1. Blacks make up only 12 per cent of the US population, but about 26 per cent of those killed by police. Black Lives Matter was founded to protest against these killings, many of them captured on cell phones. Yet even this irrefutable form of proof left little impression on conservative whites; in fact, Black Lives Matter was denounced by Trump supporters and by Blue Lives Matter as a racist, even a ‘terrorist’ organisation. Whites weren’t roused to protest even by the killings of young black men such as Trayvon Martin by ‘armed civilians’ invoking stand-your-ground laws.

If this were another country, without a history of racial domination, one could imagine a different response to police killings, even a multi-racial alliance against warrior policing and mass incarceration. After all, more whites than blacks – 55.7 per cent of the total – are killed each year in confrontations with the police, just as more whites are behind bars. But, according to a 2014 Gallup poll, whites hold the police in higher esteem than any profession other than the military and small business. Their admiration is rooted in the history of race and policing. In his acute study The Condemnation of Blackness (2010), Khalil Gibran Muhammad showed that after Reconstruction white sociologists invented a new category: black criminality. Black crime was understood to be different from, and more intractable than, crime by poor whites or immigrants, whose misbehaviour could be explained in terms of social causes. ‘White criminality was society’s problem,’ and could be reduced through government policy, while ‘black criminality was black people’s problem,’ reflective of their ‘culture’, if not their biological make-up, and largely impervious to remedy. Black criminality, according to Muhammad, became a ‘tool to measure black fitness for citizenship’, and to ‘shield … white Americans from the charge of racism, helping to determine the degree to which whites had any responsibility to help black people’.

It still is. And so long as most white Americans continue to associate crime – what Donald Trump characterised as ‘the American carnage’ – with blackness, they are likely to see the war on crime as the guarantor of what they feel to be their embattled security, like the equally futile war on terror. Locking Up Our Own is a sobering chronicle of how black people, in the hope of saving their communities, contributed to the rise of a system that has undone much of the progress of the civil rights era. But, as Forman knows, they could not have built it by themselves, and they are even less likely to be able to abolish it without influential white allies, and dramatic reforms in the structure of American society.

 
Book author James Forman, Jr. is a professor of law at Yale Law School. He has written for The New York Times, The Atlantic, numerous law reviews and other publications. A former clerk for Supreme Court Justice Sandra Day O’Connor, he spent six years as a public defender in Washington, D.C., where he cofounded the Maya Angelou Public Charter School.
 
[Reviewer Adam Shatz is a contributing editor to the London Review of Books. He is based in New York.]
May 11, 2017