Professor and Author James Forman, Jr.

The professor and author discusses his latest book Locking Up Our Own: Crime and Punishment in Black America.

James Forman Jr. is a clinical professor of law at Yale Law School. He has written for The New York Times, The New Republic, numerous law reviews, and other publications. A former clerk for Judge William Norris of the U.S. Court of Appeals for the Ninth Circuit and Justice Sandra Day O’Connor of the United States Supreme Court, he spent six years as a public defender in Washington, D.C. He is the cofounder of the Maya Angelou Public Charter School in Washington and author of the new book "Locking Up Our Own: Crime and Punishment in Black America."

Follow James Forman, Jr. on Twitter @JFormanJr.


Tavis Smiley: Good evening from Los Angeles. I’m Tavis Smiley.

First, a conversation with Yale law professor, James Forman, Jr. His new text, “Locking Up Our Own”, explores America’s punitive culture and offers important lessons about the future of race and the criminal justice system in America.

Then you might need a safety word when dealing with Wendy Rhoades, but actress Maggie Siff has dominated the new season of “Billions”. She joins us for a conversation about her character on Showtime’s hit white collar crime drama.

We’re glad you’ve joined us. James Forman, Jr. and Maggie Siff coming up right now.

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Tavis: America’s criminal justice system has become the subject of an increasingly urgent debate. Critics have assailed the rise of mass incarceration emphasizing its disproportionate impact on people of color. However, the war on crime that began in the 70s was supported by many African American leaders.

In the new book, “Locking Up Our Own: Crime and Punishment in Black America”, legal scholar James Forman, Jr. seeks to understand how we got here and how we can enact effective reform. Professor Forman, good to have you on this program, particularly given that you are part of a grand legacy of Formans. So an honor to meet you, sir.

James Forman, Jr.: Thank you. Glad to be here.

Tavis: Good to have you here, man. Let me start with the remarks recently of the relatively new Attorney General Jeff Sessions who suggested, if I can put it the way he wants, he wants to go back to the Reagan era tactics.

He wants to go back to mandatory minimum sentences. He laid out a number of things that he wants to do. My read of it essentially was undoing everything that Eric Holder tried to do. Is that the right direction or the wrong direction for America?

Forman, Jr.: Well, it’s the wrong direction. I mean, he wants to really take us back to policies that have proven to be failed and to have proven to have caused great damage. So if you think about Attorney General Sessions, one of the things he said in one of his speeches, for example, is that marijuana is only slightly less awful than heroine.

And that’s to try to build up this mentality that we need to attack all drugs with incredible vigor, and what we need is more aggressive policing and we need longer prison sentences. That is a lot of what I write about is how we got there. But most people today, including the folks that I write about in the book, have gotten to a point where they recognize the error in those approaches, right?

They recognize the incredible damage and the pain that that’s caused to so many communities, especially the African American community, but not only the African American community. So when you hear somebody like Sessions say these things, it’s almost like — I mean, it just causes you to shudder because it’s such a throwback and it’s such an error.

Tavis: What do you make of the fact that, at the very moment where we seem to be getting some traction on a real organic, authentic conversation about mass incarceration, the new AG wants to do a 180? I mean, the timing of this could not be more terrible, it seems to me, given the advances again that we’ve made on the conversation about mass incarceration.

Forman, Jr.: It is terrible. I mean, that’s the right word for it. The only thing that I would say is, in my mind, the movement to combat mass incarceration, the movement to roll back some of this, is much more powerful than Attorney General Sessions.

I know that’s hard to believe because he gets all the media attention and President Trump gets the media attention. But 88% of prisoners in this country are in state and local prisons, and 85% of law enforcement are state and local law enforcement.

So it’s state and local decisions principally that helped to create this problem of mass incarceration and it’s going to be state and local decisions and a state and local movement that’s going to undo it.

Tavis: The timing of his comments also seem, James, strange to me, given that the one issue that there seems to be some bipartisan support on the Hill, as you know, is meaningful criminal justice reform precisely because of all the things that you write about in the book that have us in a situation where we know we can’t lock our way up out of this. We can’t spend our way out of this.

So there’s bipartisan support on the Hill for meaningful criminal justice reform. Why would he then try to throw a monkey wrench into all of that?

Forman, Jr.: Well, I can’t get into his head, right? But he has been fighting it even when he was in the Senate. So you talk about a bipartisan consensus, right?

Tavis: That’s why Cory Booker came out against him so aggressively.

Forman, Jr.: That’s right.

Tavis: Because he’d been fighting it in the Senate.

Forman, Jr.: Exactly right. So it’s the worst possible — if you were to tell me of the 100 people in the Senate, who’s the one that you don’t want to make Attorney General for this issue, it would be him, right? So he’s just doing what he’s been doing. Now he’s doing it from a slightly different vantage point.

Tavis: So what do you say when Jeff Sessions grabs your book and says, “But, Professor Forman, even Black folk were down with these policies back in the 70s”?

Forman, Jr.: Well, one of the things I’ll say is, “Yeah, and more and more of them have realized the mistake of their ways. So if we’re going to talk about where people are now versus where people were in the 70s, let’s talk about the evolution of their thinking. So the DC Council, for example, which I write a lot about, in 1975 they chose not to decriminalize marijuana.

They had that before them. It was proposed by a white city council member who was a civil libertarian. He said, “I want to decriminalize marijuana” and there was a coalition of Black ministers and a Black Nationalist city council member by the name of Doug Moore and they opposed it.

They didn’t oppose it on the grounds of we want to lock up these Black youth, right? That wasn’t their rationale. It’s that our children are in a precarious situation and we can’t afford to have them getting high, right?

They don’t have the middle class resources that they might have in a wealthier community where they could, you know, get high on the weekend and still do well in school. They said, “No, no. Our children need all their faculties to be able to succeed in a racist America” and that led them to oppose marijuana decriminalization.

Now I say in retrospect, that’s a mistake, but I can understand the thinking that went behind it in 1975. If you look at the DC City Council today in 2014, they faced the same issue, the exact same question of whether to decriminalize marijuana.

Now what they had was a 40-year history of the failed war on drugs, and what did they do? They made the opposite decision. They did decriminalize marijuana precisely because they had seen how many young Black men, young Black people, but really Black people of all ages, were getting stigmatized with criminal records.

So I would say to Jeff Sessions, if he wants to invoke Black leaders in the 1970s based on my book, to justify what he’s doing now, I would say no. No, you can’t do that because people have turned a corner. They’ve seen the damage. And the one other thing that I would say to him is that same community that was asking for tougher laws in the 1970s, they were also asking for a Marshall Plan for urban America.

They were also asking for investment in root causes in education, in job training, in mental health, the same things that the Trump administration was trying to get rid of through their attempt to repeal the Affordable Care Act. So, no, those leaders in this book, Jeff Sessions cannot invoke them to defend his current position.

Tavis: How shocked were you — and maybe shocked is the wrong word because many were, though, when even Bill Clinton during the campaign of his wife for the White House came out and had to admit that some of his criminal justice reform ideas were wrong when he was president?

Forman, Jr.: I didn’t know whether to be shocked or not, but I know that I was glad. I was pleased because to me, again, that shows that peoples’ thinking can evolve, right? They can take in new information. They can look and they can see what has been created by, you know, for the 1994 Crime Bill was the particular thing, I think, that he was talking about.

And it gave states incredible incentives to lengthen their prison sentences basically by eliminating parole. And he saw the contribution that he made to the development of mass incarceration. You know, he didn’t quite come out to fully, as much as I would have liked him to, admit the error of that, but he came a fair part of the way.

And, you know, that’s the thing. We asked people in the criminal justice system. We asked people that people that get charged with crime who have very little education to admit the error of their ways. So I think it’s perfectly appropriate that we would ask policy leaders to admit the error of their ways.

Tavis: That’s why it’s — I was going to say the irony, but frankly it’s the lunacy of Attorney General Sessions comparing marijuana to heroine when what we learned from the Clinton era is that 100 to 1 crack to powder cocaine discrepancy was just damning for Black communities, in particular. And we know why that is.

I mean, it was a racist policy to begin with and Bill Clinton codified that into law. I mean, crack used in the streets, cocaine used in the suites, 100 to 1 disparity? It just ripped to shreds communities of color, which leads me to ask how much damage has been done? How bad is the damage?

Forman, Jr.: It’s terrible. I mean, people talk about this as being the civil rights crisis of our generation. For me, I became a public defender in the 1990s because even then, even before the numbers had gotten so bad, we could see that.

For example, when I joined the public defenders office in D.C., at that point in time, the United States had just passed South Africa and Russia as the world’s leader in incarceration. Since then, we’ve, you know, skyrocketed. We’ve left everyone else way behind.

We have had a situation where even despite the advances of the civil rights movement, the rate of African American incarceration has increased so to the point where, in the 1990s when I became a public defender, one in two people who were in prison were African American. Now that number’s gone down somewhat in the years since.

We have 2.3, 2.2 million people in prison, seven million people under criminal justice supervision, and that’s not counting all of the people — you must meet them. I know I meet them — who they’re not under the criminal justice supervision, but they have a conviction and they have trouble getting housing, they have trouble getting student loans, they have trouble getting a job.

Tavis: How much has privatization of prisons impacted this situation?

Forman, Jr.: It’s a problem, although I do think sometimes we can overstate it. That is to say, I mean, most prisons and almost all law enforcement is still a public function. You know, California, the public prison union was an incredibly powerful force and still is a powerful force to fighting any kind of sentencing reform and criminal justice reform.

So private prisons are a problem. They are a real problem because there should not be an economic incentive, a profit motive in our correction system. But they aren’t the main problem.

Tavis: We talked earlier about Jeff Sessions, what he wants to do as Attorney General. I am not naïve or it’s not lost on me nor is it lost on you that he does have a Republican president, a Republican House and a Republican Senate. Any chance that he gets traction on some of these ideas? Any chance that there will in fact be a retrenchment on these issues, given where we were in the Obama era?

Forman, Jr.: I think there will be some retrenchment at the federal level in terms of how the United States attorneys who report directly to Jeff Sessions, how they operate. I think that’s going to happen. But I think the movement for reform at the state and local level is very powerful.

You have now for the first time, you have people who were incarcerated and are formerly incarcerated who have leadership roles in some criminal justice reform organizations and they’re able to make the powerful moral case and change the minds of legislators who meet them and see how they’ve been transformed.

We have a new level of advocacy now that’s taken crime victims and have said, as we were talking about earlier, crime victims don’t necessarily want just longer prison sentences, just more policing. They want that if the other option is nothing. If you tell someone who’s been victimized by crime, it’s prison or nothing, they’re going to choose prison.

But if you tell somebody do you want more money invested in prison or do you want job training, mental health training, drug treatment, restitution, restorative justice? By a two to one or three to one margin, people tell you, oh, no, I want those other things. Because people know prison doesn’t work.

Tavis: Well, they won’t find those things in Trump’s budget.

Forman, Jr.: No, they won’t.

Tavis: Yeah. The book is called “Locking Up Our Own: Crime and Punishment in Black America” written by James Forman, Jr. Thank you for the work, brother. Thank you for the text. Good to have you on.

Forman, Jr.: Thank you. Appreciate it.

Tavis: Up next, actress Maggie Siff from “Billions”. Stay with us.

Last modified: April 19, 2017 at 1:14 pm