Lara Bazelon: Good evening. My name is Lara Bazelon and it is my pleasure to be in conversation tonight with Pulitzer prize-winning author James Forman Jr. James Forman Jr.’s book, “Locking Up our Own,” tackles an overlooked part of our history, which is how Black prosecutors, police officers, judges, and lawmakers contributed to the problem of mass incarceration by embracing tough on crime policies. Moving seamlessly between history and personal narrative, James Forman tells the story of race and crime as it played out in Washington DC, starting in the 1940s and leading all the way up to the election of Donald Trump in 2016.
We are going to talk about the important themes in this book and the characters. We’re going to go beyond that though, and get James Forman Jr.’s thoughts and insights about what is going on in our criminal justice system today and specifically about certain reforms.
So for example, uses of alternative methods, like Restorative Justice, or this recent spate of elections where reform-minded prosecutors–many of them people of color– have been elected on a platform of not locking up their own.
James Forman Jr. is not only brilliant–he is a Yale law school professor and a clerk to The Honorable Sandra Day O’Connor on the United States Supreme Court–but he is also dynamic, insightful, thoughtful and empathic, with so much to say about the most vexing and interesting issues confronting us today.
So, please join me in welcoming Pulitzer prize-winning author, James Forman Jr.
James Forman Jr.: Thank you.
Lara Bazelon: You’re welcome. So James, I wanted to start by talking about–I had mentioned in my introduction that you had this incredibly prestigious position after you graduated, which is that you clerked on the Supreme Court. And many people who clerk on the Supreme Court, they go on to careers in big law. They go on to careers in academia immediately. Or if they go into government service often, it’s the side of the prosecution. You decided to be a public defender in Washington DC. Why did you make that decision?
James Forman Jr.: Well, I guess, you know, it started with doing death penalty work. When I was in law school I worked for Southern Center for Human Rights, and I work for the NAACP legal defense fund. And you know back then, the criminal justice system wasn’t really thought of as a civil rights issue, but the death penalty was, so the NAACP legal defense fund had a unit on housing and employment and voting rights in education and the death penalty, but not the criminal justice system broadly.
But when I started working on the death penalty, I started to see these blatant injustices–poverty, mental illness, addiction untreated, and they were manifesting themselves–trauma–that hadn’t been addressed, and people were ending up getting death sentences.
But then I was clerking, and as a law clerk, I got to see a lot of those same cases and they weren’t death sentences, right, they were people getting 5 years, 10 years, 15 years, 20 years. But it was the same issues, the same underlying structural issues, the same disadvantage the same unfairness in the system, that was for some people leading to the death penalty, for other people was just leading to, you know, non-death sentences.
And I thought well, how can I make a contribution in that fight. And I thought a little bit about doing policy work, impact litigation, but fundamentally, I thought that the most important thing that I could do, the most directly impactful thing that I could do, was to get into the trenches, to get to know clients, to go into court houses, and to fight for people one by one by one, and to give people the kind of representation that any of us would want, but that if you’re poor you almost never get.
Lara Bazelon: So talking about your time in the trenches, you discuss this experience as a young public defender of seeing client after client be sentenced and sent away, often for minor offenses. The twist in the story that you tell is that often times the police officer who arrested them, the prosecutor who brought charges, the judge imposed a sentence, were African-American. And you pose a question that I’m going to pose back to you. You write, “what was going on? How did a majority-black jurisdiction, meaning Washington DC, end up incarcerating so many of its own?”
James Forman Jr.: Well the answer to that is the whole book. So I guess I’ll do my best to you know, sort of touch on some of the highlights. So the first thing that I think is important that we have to face up to is rising crime and violence and addiction and the fear and the anger that that generated in Black communities throughout the last 50 years, but especially in the crack years of the 1980s and the heroin years of the 1960s.
So that’s piece one, right is that folks were scared. And the second piece is that this generation of Black elected officials that comes into office, many of them came out of the–many of them were in the Civil Rights Movement, a lot of them were from the south, and almost all of them remember the long history of under-protection and under-enforcement of the law that has been part of the Black experience in this country since slavery.
So they come into office. They remember times when Black victims– when, you know my dad used to tell me that he didn’t call the police in the Black community. He grew up in Jim Crow, Mississippi, in Jim Crow South Side of Chicago. He said we didn’t call the police in Black neighborhoods, in our neighborhood, because they weren’t going to come. And now this new generation is in power and they want to make sure that those Black communities start to get a response from law enforcement.
And then the third piece that I think is crucial is that the people that I’m writing about, these Black elected officials, are under tremendous constraint. They’re very limited in the options that they have available. Because the question is, okay, so you want to protect communities and people are scared. But why is it criminal justice? Why is that overwhelmingly the response? And I think that the answer is the constraints that they were under. They were constrained by a history, a history of racism, a legacy of slavery and Jim Crow and discrimination that means that Black communities are under resourced and aren’t able to protect themselves without over-reliance on the state.
They’re constrained by politics. Their local officials. And so Black political officials–because they’re local officials–they don’t have all the resources that the state or that Congress would have. So they go to Congress and they have what I call this all-of-the-above strategy to fighting crime and violence. They say we want everything. We want more money for police and prosecutors, yes, but we also want more money for schools and jobs and education and Health Care and housing. And they come back from Congress with money, not for all of the above, but for one of the above, which is the police and the prosecutors.
And they’re also constrained in other ways. You know, I think a lot–and this is an issue that I think we still confront to this very day–they’re constrained by their imaginations. It’s hard for them to see sometimes how you would think of the problem of addiction as a public health issue instead of a criminal justice issue. So they want to respond to communities that are asking for help, but because they’re Americans, because they bought into an existing narrative, because their resources are limited, the place they turn to for help are police departments.
You know, so we send police in right now to deal with addiction. We send a person who only has a gun and handcuffs and the only place they can take you is the local jail where there’s no treatment. Well if you do that, you’re ultimately not helping, you’re ultimately creating, you know re-creating and reinforcing the problem. So for all of those reasons, folks are scared, people want to respond, people are constrained in how they can respond, there’s also a class dimension which we can talk about if we have time…
Lara Bazelon: You anticipated my next question.
James Forman Jr.: Okay. So yeah, that, that next question.
Lara Bazelon: So. Because you talked about local officials, and the constraints and the pressures they were under–one of the characters that I found the most kind of interesting, but also confounding, is Burtell Jefferson, who becomes DC’s first African-American police chief in 1978.
And you do I think a pretty wonderful job describing his career trajectory, and I’m wondering if you can speak a little bit to what he had to overcome and then what happened once he got to the very top of this organization that had done everything it could to keep him out.
James Forman Jr.: Yeah, thanks for asking about Burtell Jefferson because I don’t get to talk about him that often and I think that that chapter–the chapter on the rise of African-American police–that in some ways is my favorite chapter in the book. But I don’t end up getting asked about it very often. So I’m glad that you did.
So Burtell Jefferson is like so many of that first generation of African American police officers, and I choose him because I think he is representative. He’s working class and he grows up in a deeply, deeply segregated Washington where everything down to the checkers, you know, there’s a black checkers tournament and a white, you know checkers tournament.
Lara Bazelon: And black checkers and black marble competition.
James Forman Jr.: Yeah.
Lara Bazelon: It’s down to the marbles.
James Forman Jr.: Yeah, and so he grows up in that environment, and his options for jobs are very limited, but he is able to get hired in the local police department at a time when you know, we don’t remember this, but in most parts, in most of the country, in most cities, not just in the South, all over the country, until the 1950s and 1960s, the few Black officers that there were, were typically not even empowered to arrest white citizens. So they were brought onto the force and the only power that they had was to arrest Black citizens or they could you know direct traffic and do other things.
So he comes under the force at a time when there’s that intense discrimination and he rises up and he rises up and he bides his time and he, and then he hits this barrier, which is to get to the next level, to the level of Sergeant and then Lieutenant, he has to pass these tests, these written tests. And then there’s also a character test. And he does very well on the written test, but he can’t pass the character test, because the character test is a white supervisor who is evaluating his character.
Lara Bazelon: Whether he’s suitable.
James Forman Jr.: Yeah suitability rating. So but he doubles down and triples down and they say all right, we’re going to get–he along with another officer Tilmon O’Bryant–they say we are going to score so high on the written test that even getting dinged on the suitability, we’re going to meet the standard and get promoted. And they do, they set up a night school for Black officers.
And they all get together. There’s strict rules, no drinking allowed and you’ve got to set, you know, you’ve got to be prepared, but they do it. They do it. And he eventually gets promoted and then he works his way up. And then in the 1970s after there’s been a big social movement, right, Civil Rights Movement, a piece of which–we don’t talk about it so much today–but a piece of which was also hire more Black officers.
He’s able to get to the top and he becomes the police chief. And it’s this incredible success story, right, by 1978 a city that hadn’t allowed any Black officers to even arrest White citizens 40 years before now has an African-American police chief. But the tragedy of it is that he adopts a very punitive set of attitudes and eventually embraces and becomes a leader in the city for mandatory minimum legislation. For mandatory minimums for drug offenses and for gun offenses, which pass in the early 1980s. So he’s a historic figure, right, for me, but he’s also a tragic figure. And in that respect, I think he represents a generation.
Lara Bazelon: I want to ask about a client that you represented–and this story just is is really poignant–it’s a woman named Tasha Willis. And I want you to tell the story. And I want you to talk specifically about how Tasha Willis ended up winning what you call the dismissal lottery, and yet the story really does not end on a note of victory.
James Forman Jr.: Yeah, so Tasha Willis–and I should say, I mean the historical people that I talked about, like Burtell Jefferson that’s his actual name, but for anybody, any stories that involve my clients, the names are changed.
So Tasha Willis isn’t her name, but there’s a real person with that name. She was a client of mine who was facing sentencing for, or she had to decide if she was going to plead guilty or not for distribution of heroin. And in part because of laws that Burtell Jefferson had helped to pass, the maximum in DC for first-time distribution of any substance other than marijuana, the other penalties were lower, but it was 30 years, and for second offense it was 60 years, and it didn’t matter the amount. So this was her second offense. And it was twenty dollars, fifteen, twenty dollars worth. And she was an addict. And I was meeting with her to talk to her about the plea offer from the government, which was to agree not to ask for more than five years of prison.
And she said I can’t do that. You know, I’ve got family that I have to take care of, and I’m an addict, and what I need is treatment. And you know as a lawyer, you’re obligated under law and ethics to convey any plea offer to your client. So I was there to tell her of this offer, but she said you have to go get me another offer. I cannot do five years.
And the way she was advocating, I remember thinking there in her in her kitchen. She had fed me. She never–she thought I was too skinny. And she was like, you’re never going to find a woman if you don’t eat. And she–.
Lara Bazelon: I love how she’s gonna go to prison, but she wants to find you a date. That’s just a very caring person.
James Forman Jr.: She was. And she said I had to go get her a different plea offer. So I went back to the prosecutor. And she was–I thought of her, we thought of her in the office, as one of the good ones. She had offered me a good offer on a previous case. I thought she was sympathetic to people like Tasha Willis. She–the prosecutor in this case was African-American, although most of the prosecutors in the office weren’t.
And I told her about Tasha’s story and how she had worked at the post office and she had hurt her back, and she had been prescribed pain medication and she had taken too much and she’d become an addict, and over time now she was using heroin. And I was making the case that she was an addict and she needed treatment.
And the prosecutor, Bernice Lester, she looked at the file, and I remember she kind of was rifling through, and then she stopped and she looked up and she said “no it’s not going to happen. They won’t–my office won’t let me do it.” And I said, “what do you mean?” And they said, “she was in a pro–” she pointed down at the file–she said, “she was in a program before and she failed out.” And that was true. She had been offered a program previously, on that previous conviction that I was mentioning, and she hadn’t gotten any jail time, she’d gotten probation and a spot in this program.
And I said “well, yeah, but everybody who knows anybody with an addiction knows that it takes multiple times often, to really overcome and even then it’s a lifetime of recovery. And so what do you mean one time?” And I kind of had a little edge to my voice. And she–having, as a defense attorney, having an edge to your voice with a prosecutor is not a good move, because they have more power and also they think they’re so righteous. And so you have to work to a place where y’all are being righteous together, but if you’re the one that’s being righteous then they like shut down.
So, she was shutting down. And that was a time for me to leave and try another day maybe, but I was just got really agitated. And I said, you know, “why do we have this attitude? Why do we have this attitude that one time of treatment is enough? We never ask that at prison. We never say, oh, well prison didn’t work before, you know, let’s not try that again.”
Terrible move, terrible move. Like good story for right now, terrible move for Ms. Willis, which is my obligation in that moment. So it didn’t, she didn’t, it was no offer. And we end up showing up a couple months later for the trial date.
Lara Bazelon: How are you feeling about going to trial?
James Forman Jr.: Not good. I mean we have no defense. I mean the drugs were on her, the officer was there, the paperwork was basically solid. Like there was just no argument. Really my hope was that I would be able to convince the judge, that the judge wouldn’t punish her for going to trial. And that I might be able to get a decent sentence even having lost the trial. Or that maybe when the government’s witnesses actually showed up that maybe they would still make this offer and then Tasha would take it.
They called the case, and the way it works in a lot of courthouses in DC is the the clerk calls the case, “United States versus Tasha Willis, is the government ready to proceed?” And the government says, “yes,” that’s what what they normally say. “Yes, we’re ready.”
But in this case, they said “no, we’re not ready.” Which sometimes happens, and you don’t know why it happens. You don’t know–was there a fourth amendment issue that they found on review? Was the officer, you know, had issues, personnel issues that they didn’t want to reveal? Did the officer just not show up that day? You don’t know.
Or maybe, maybe, maybe, I don’t think so, but maybe Bernice looked at the file one more time and like figured out a way? I don’t know. But they said not ready. And so I said what defense attorneys always say, which is “move to dismiss for want of prosecution.” Granted by the judge and we leave court. The case is over.
Lara Bazelon: And you describe hustling her out really fast just in case anybody changed their mind and you were going to have to come back.
James Forman Jr.: Yeah. I was like, yes exactly. I mean and so we get out in the hallway–and this is the thing though that was so hard for me in so many ways, is that–when we were in the hallway, Tasha, Ms. Willis didn’t seem great that morning. She was kind of nodding off as we were sitting there and I was worried that she had maybe started using. I wasn’t really sure.
And I think she could tell that I was worried about her. And she looks at me in the hallway and she says “don’t worry, don’t worry, Mr. Forman. I’m going to be okay, you know, I’m going to get treatment.” And what was so sad for me was that even though I was happy because the case got dismissed, I knew that that was almost certainly not true, because as minimal as the treatment options were within the criminal system, and they’re not enough, outside it there’s almost nothing.
And I know what it looks like, because I’ve been there with clients going down to the office and trying to get signed up and being told yes, we’re going to put you on a waitlist. Well, how long is the wait list? Well, I don’t know. Well typically well, maybe about a year. And I’ve seen that and so, and that’s to me one of my great frustrations with the system is that the few resources we have for people we put within this juggernaut that has this prison and jail hanging over it, we don’t put outside of it in the community typically.
And so I knew as she left that day that her only hope of getting treatment was basically gone now that this case was dismissed. So it was a moment of celebration for sure, but it was also just a real world reality of how hard life was going to be before her and how unfair it was that as a society we structured resources in this way.
Lara Bazelon: So people may not know this about you, but you took a leave of absence from the public defender service and you became the founding member of a charter school, the Maya Angelou Charter School in Washington DC, which is still up and running and I think now you’re on the board.
And I wanted you, if you don’t mind, to read a passage from your book about an exchange that you had with a student at the Maya Angelou school, and I guess just to give a little bit of context, this was a charter school that was founded to help at-risk youth–I think majority or almost exclusively African-American youth–and it was a struggle for many of them to get to school and stay in school.
James Forman Jr.: And in particular, if I could just say about the school, I mean the really distinctive feature of it, on top of the things that you said, is it’s a school that we started for kids in the juvenile justice system. So it was, we started it because, I started with somebody, a good friend of mine named David Domenici, and it was because we were so upset, and I was so upset as a public defender, that even when I would win a case, my clients were going back to the same substandard schools, or maybe they had already been kicked out of school, expelled from school, shunted into alternative schools.
So we wanted to create a family like place with a rigorous curriculum and high expectations that would be welcoming of, and go and recruit students, that had been arrested, that had been incarcerated, that were coming out of incarceration. All the kids that the normal schools were, you know, trying to avoid. So and now I’ll read the quote.
“In neighborhoods wracked by violence young people must devote immense psychological resources to their day-to-day survival. I would learn this lesson from the students at Maya Angelou. Once a student named Bobby asked for more time to finish a writing assignment for a criminal justice class I was teaching. Our school days were long, he pointed out, and he hadn’t had enough time in the evening to get it done.
I started picking apart his day, trying to point out times when he would have at least, could have at least been thinking about the project. I told him that I composed arguments and essays in my head as I was walking or driving to work. Bobby should use his travel time in the same way, I suggested. Bobby with a half smile–I think he might have been trying to stop himself from laughing at me–said, ‘look James. I’m just trying to get here. And I’m sorry, but I’m not trying to get jumped looking like a fool walking down the street, daydreaming about your work.’
The teacher in me never stopped pressing Bobby and the other students about turning in their assignments on time, but I did gain a deeper appreciation for how living amidst violence constrained not just their bodies, but their minds.”
Lara Bazelon: Thank you for reading that. I think that passage is first of all, so beautifully written, but second of all it gets to something that a lot of us don’t think about when we think about what it means to be poor and what it means to be discriminated against, and what it means not to have resources.
Because your mind naturally goes to, well you don’t have good housing and you don’t have good food, because there aren’t good grocery stores nearby, and your school options are terrible, all of these things, but I think what this passage points out so beautifully is that you’re also talking about an impoverishment of the ability to imagine and be creative.
And if someone like you, who spends a lot of time writing and thinking, some of my favorite parts of the day are being lost in my own thoughts and having these kind of mundane experiences, like running an errand or standing in line or going to school or work, be kind of taken over by a thought, as you say, about an essay or something something that you’re, an idea that is generating itself.
And it seems like, and you say this so well, for students like Bobby, that’s just not a possibility. And I’m wondering when he said that to you, if you were as surprised to hear that, as I was as a reader to read that.
James Forman Jr.: Well, I was embarrassed that I had shared with him my process of thinking creatively as I was walking to work and why didn’t he do the same thing, I mean, because you know, by this point I had been a public defender for a number of years. I was working at the school. It wasn’t like, you know, I had just dropped in, you know on his world, but there’s a difference between, you know, living and visiting.
And I never you know, I never lived in his world. And it was a real reminder of that, and a reminder that you know, even though we might you know, have had some bonds or had some connections, there was going to be that separation. And so yeah, I was surprised and I was–I mean, I really had to sit with it. I still sit with it, because like you, and I suspect, you know, like a lot of people in the audience, the you know, we treasure those and we just take that for granted. There’s so many little things.
I mean, this is a little bit different, going to shift it a little bit from the exact question you asked, but I don’t know if folks have seen the video of the woman in New York who is waiting in the benefits office and her child was taken from her by the New York police department. It’s kind of gone a little bit gone viral and she spent four or five days in Rikers and she’s recently been released thanks to some amazing work of public defenders in Brooklyn.
But one of the things that is kind of, you can miss in that story, because you just see the abuse, and the violence, and the police ripping this baby from her arms and it’s so terrible, but just the hours and hours of waiting that she was doing. And she had already been there for two, three, four hours. Just waiting for her case to be called, to speak to somebody.
So it’s like the things that we put poor people through just to make it through the day are, I think are inconceivable to most people that are either completely foreign to the world or visiting in the way I was.
Lara Bazelon: And I want to shift a little bit at this point to talk about how I felt in some of your advocacy like you were moving towards or trying to move towards alternatives that people now on the front lines are perhaps having a bit more success, a bit more movement in embracing, not entirely.
And one example, I think the closest example, is you tell the story about a client who gets charged with an armed robbery. And he’s African-American, and his victim, Jeremy Thomas, is African-American. And because it’s a crime of violence–and you talk very eloquently in the book about how we have this kind of arbitrary separation between what we say are nonviolent crimes, where maybe we’ll be merciful, and these violent crimes where there is no mercy–because he’s in that second category, he’s going to go to jail, unless there’s going to be some kind of intervention that’s going to happen. And can you describe what you did to try to alter what seems like an inevitable outcome for Dante with Mr. Thomas?
James Forman Jr.: Absolutely. So, you’re right, It seemed pretty inevitable. The judge that I was in front of was a tough judge. Earlier in the book you meet him and he sentences my client to term of juvenile incarceration. And he’s a kind of a Judge–he’s a kind of a figure who’s an important figure in my book, because he’s an African-American judge who–he sees himself as doing racial justice work through being tough.
He not, and I think this is really important, because I think we can–one of the goals in my book is to really make complex the different strands of thinking and attitudes and the historical and ideological and cultural roots in the Black community. Because I think there can be this way in which we sort of dismiss it. Oh, you know, I hate this term anyway, but it’s like, oh that’s like the Uncle Tom character or something like that. But you have to understand that this judge thinks exactly the opposite. He’s a racial–he’s a race man. But he views himself as fighting for and defending Black victims of crime.
And Mr. Thomas was one. And so I go talk to Mr. Thomas because I want him to know–right now all Mr. Thomas knows is the 8 seconds at the bus stop when Dante came up to him with a knife in his pocket and asked for–and demanded–money. And he knows Dante for those eight seconds. And I want him to know the rest of who Dante is. I want him to know how about how Dante’s mother was addicted to drugs and really he had been raised by the streets and how Dante had been invited into a neighborhood gang that first humiliated him, but now is offering him membership, and this robbery was part of his initiation. And I wanted him to know how incredibly talented Dante was with his hands and he had these wood carvings all over his house. And how much he doted on and loved his younger brother Jason.
And I wanted him to know that Dante’s mother had gotten into recovery and gotten Dante into this upstart program in Southeast DC run by a pastor out of the back of his church, which was going to offer Dante counseling and craftsmanship. And I wanted to make the pitch to Mr. Thomas that he should give Dante that opportunity. And it’s unusual to go talk to–it can backfire because they can contact the prosecutor and then the prosecutor could go to the judge and say the defendant’s attorney is trying to you know, intimidate the witnesses or whatever, but I had no really other option.
So I go and I talk to him and I tell him that whole story about Dante. And at the end of it, he tells me, I ask him for his forgiveness, and he says he’ll have to get back to me. And a few weeks later is the hearing and I see him in the hallway of the courtroom, the courthouse. And I go up to him. And before I can even say anything to him, he thrust these two pieces of paper at me.
And I know these pieces of paper because I had given them to him earlier. One of them was Dante’s confession, which Dante gave on the night to police officers, and at the end of the confession Dante had said, “please tell the man I’m sorry.” And the detectives, to their credit, kept it in there. And the second thing is he had a more formal apology letter that he had written in collaboration with me.
And he pushes these towards me and he says, “Mr. Forman, you remember you asked me if I could forgive your client.” And he said, “I can’t do that. But I’m trying. And I’d go along with that program.” And we hustle into court. The judge is very surprised at this turn. The prosecutor’s pissed. And, but the judge to his credit, the judge listens to Mr. Thomas here and he puts Dante into the, he puts Dante on probation and allows him to participate in this program.
You want me to stop there, or do you want me to tell the rest of the story?
Lara Bazelon: Well, I want to stop you there for a second and then I think maybe–I want to stop you there for a second to say it seems like when you’re telling the story, I feel like the seeds of restorative justice. That this idea that instead of saying what crime was committed, who committed it, and what punishment is deserved, which would be robbery, Dante, prison, its what was the, you know who was harmed, what are their needs and whose obligation is it to meet those needs?
And the way you tell the story it’s so clear that you got two people who’ve been deeply harmed, Dante in the way that you were able to describe the story, and obviously, Mr. Thomas for this absolutely terrifying experience. They both have these needs. And one of the needs perhaps of Mr. Thomas was to feel acknowledged as a victim and to feel apologized to, but perhaps another need, and you say this, is that he had a son or maybe two sons, so when he looked at Dante he was able to make some kind of a connection.
And then of course Dante’s needs are the ones that you described and whose obligation is it? Well, it seems like it’s on everyone and especially on the judge and the prosecutor and all the actors in the system to come up with a solution that is going to make it more right than the inevitable outcome that you described.
So having said that, I’m wondering if you can tell tell the rest of it.
James Forman Jr.: Well just to pick up on that too. I think you’re right. And there’s a great book on restorative justice called “Rectify.”
Lara Bazelon: Oh my God, who wrote that?
James Forman Jr.: By Lara Bazelon. So I think that, you know, if you think about the way that our criminal justice system has been set up, and the way even that people like the judge that I’m describing to you is thinking, right, the history–and I’ll just focus in on the Black community, but you could think about this more broadly, right–the history of under protection means that that somebody like Mr. Thomas never even got their case investigated right, back in the day. That was my dad not calling the police because they weren’t going to come.
And if you did get prosecuted, you didn’t get any punishment, because the system didn’t take the harm to Mr. Thomas seriously. So what’s happened, or what I write about, is this generation that tries to change that. And now if we expand outside of Black communities and just look broadly, what we do in this country is we say, the way we are going to respond to this, the thing we’re going to give Mr. Thomas is long prison sentence in excruciating conditions for the kid who robbed him. And what we have been telling people for 50 years, is that’s the remedy, that’s the redress, that’s what victims rights mean, that’s what it means to respond to crime and the choice is that or nothing.
Well if you give anybody, if you tell anybody, well we’re going to do nothing or we’re going to give prison, everybody’s like, well, prison. Especially who’s been victimized and traumatized by a serious crime. But, if you start to talk to people about a separate set of responses, a more expansive set of responses, and the organization that’s based here in the Bay Area, Californians for Safety and Justice and National Alliance for Safety and Justice has done amazing research on this and go check out their website and you can see their survey where they basically ask crime victims these questions. And people don’t want nothing. That’s not okay for people.
But if you give them a choice that includes things like apology and real apology, and the one thing, one of the many ways this story goes to restorative justice, but it isn’t full restorative justice, is that Dante didn’t get a chance to face Mr. Thomas and actually deliver that apology face to face, and he didn’t really get a chance to hear from Mr. Thomas what it felt like to be harmed that night.
So you’re right, it’s moving towards it, but the modern restorative, the current restorative justice programs, and again in the Bay Area, the organization Impact Justice is doing great work on this here, locally in the Bay Area and also nationally, so please check out their website if you want to learn more about restorative justice in particular.
So we had pieces of it. And Mr. Thomas–that’s really what he wanted. He wanted to know that Dante was sorry, that he understood that what he did was harmful, and that there was a plan to help him become the person who he could become. To help him realize his full human potential.
And so he went, you know, he went for it, and then I lost track of Dante. Because this is–one of the other dysfunctions of the system, one of the many, is that people in the system, judges, prosecutors, defense attorneys almost only always hear about the people who recitivate, who get re-arrested, who come back into the system, but the people that go out and do well, for the most part, there’s some exceptions to this, but they’re exceptions, you don’t hear from them again, and that creates a kind of a cynicism.
Anyway, I lost track of Dante. And then over a decade after the case I was in DC, I was walking down the street, I walk by a construction site, and I hear a voice, “Mr. Forman, Mr. Forman.” I look up. And it took me a second because so much time had passed by, but it was Dante. And he came down, he had a hard hat on, he came down from the construction site. And of course I wanted to hang out for like, I wanted to go get a sandwich, and. Because it was, he was clearly doing so well, but of course, he had to work, and also I didn’t remind him of a great time in his life.
But he gave me basically the outline of what happened. And he said that you know, the program had been hard, that the pastor’d almost kicked him out like three, four times, but he had made it, he had gotten his certificate. It took him a few years to get onto a crew full time, but now he was on a construction crew working full-time. He had a son of his own who he was raising in a completely different way than he himself had been raised. He had not been re-arrested, had not gone back into the system.
And when we said goodbye that day, I really couldn’t stop thinking about what I think about still to this day, which is what if our entire system could be more routinely organized in the way that Mr. Thomas allowed that particular hearing to be organized.
Lara Bazelon: And I just because I think this is so beautiful and the end of the story with you encountering Dante, I can’t help but just read this part out loud.
You said, “I didn’t want to keep Dante, but as I was leaving, I told him that I still sometimes thought about his case. I said, I still remembered Mr. Thomas and how he had tried to forgive. ‘Me too,’ Dante says slowly, ‘me too.’ Then he turned away and went back to work.”
I just think that is such a beautifully written end to that story and one of the many many reasons that this book should be read, because it brings up so many important concepts like the concept that you just said, in a way that is so accessible.
So I can’t help but ask you, because I feel like this is so much on the minds of criminal justice reformers, what you think about this recent spate of elections? I mean I think it really took off with with Larry Krasner winning in Philadelphia, but there were a couple before. Kim Foxx, Kim Ogg, Wesley Bell, Scott Colom. And we’re talking about these people who are running for district attorney in these very populous cities all over the country and they’re winning, and they’re running on platforms of decarceration, they’re running on platforms of decriminalization.
And when you see them all gathered as a group, you see this real diversity in terms of race, gender, ethnicity, geography, age and experience. And do you think that this is a just a ripple or a trend that’s going to fade out? Do you think it’s a wave? And do you think they’re going to be able to deliver on the promises that they campaigned on?
James Forman Jr.: So I guess I have maybe a couple different reactions. The first, let me say, is complete excitement and enthusiasm. I mean for the last 50 years the only way you ever got elected district attorney–and we should say, just to be clear, that of one of my arguments in the book is that the system is all these, doesn’t deserve the name system. It doesn’t–I don’t say this in the book, but I now think about how it doesn’t even deserve the name justice, in many cases. But it’s not really a system because it’s all these discrete actors.
Having said that, the most powerful single actor is the local prosecutor, the city, the county prosecutor. Those are the people that make the decisions, right, in the Tasha Willis conversation, and every other decision that gets made in a case. So it’s thrilling, right, because you only got elected for 50 years on platforms of, I’m going to lock up more people than my opponent, and I’m going to keep them in harsher conditions, and I’m going to keep them there for longer.
And then starting really in November 2016, some good news from that election. One thing.
Lara Bazelon: One thing.
James Forman Jr.: Is this whole slate of prosecutors in Florida, Alabama, Georgia, Denver Chicago, Texas. I mean a career defense attorney in Texas with the words Not Guilty tattooed on his chest ran for local prosecutor and won. And then Philadelphia, Boston, St. Louis.
So what is, to me what’s so exciting about that, is what it signals in the electorate. Because it shows that people are starting to wake up to the unfairness, to the rank injustice that dominates our system today. And that there’s an openness and even a hunger that’s fueled by activism. And many of those folks got elected because people knocked doors and people talked to their neighbors, and people encouraged people to vote in off-year off-cycle elections, right? This is hard grassroots work.
So it’s exciting though, that folks can win on those kind of platforms. I mean Rachel Rollins in Boston, she announced her platform in all these cases that she wasn’t going to prosecute and decriminalization, and I’m thinking like Black woman in Boston is going to win like County DA on that really? And she did, like by a huge margin. So that is thrilling.
I do have I guess some cautions. One is, all their platforms are not the same. And there can be a way, I fear that we’re about to enter into a moment where you get to say, I’m a progressive prosecutor and you can have like one thing that you do that’s progressive. Like, I’m not going to prosecute, you know, marijuana possession in a place that still criminalizes it, and you keep doing everything else just as terrible as you did it, but you get to run under that mantle.
And I worry that we need to have some much clearer kind of metrics and benchmarks for what is going to count as actually progressive, versus what’s going to be just the same old brutality with a little kind of tweak here or there. So that’s the one kind of big fear that I have about this.
And the other is that, I want to say, I don’t want public defenders to get lost in this conversation at all, because I think that any effort to actually make our system deserve the title Justice in it, any effort to bring fairness, to bring a measure of decency, is going to require a real investment in criminal defense lawyers and public defenders.
Because again, think about even these progressive prosecutors, what they’re saying. Like somebody like Larry Krasner or any of these folks. They’re saying listen, “I’m not just going to go for the max, and I’m willing to offer probation in certain cases. I’m willing to hear the whole story about somebody’s life. I’m willing to look at them as more than just the charge sheet.” Right, these are revolutionary statements in many cases for prosecutors if they really act on them. But who’s going to bring that story to them?
Who’s going to tell them who Tasha Willis is? Who Dante is? Right, I mean, you know Bryan Stevenson talks about, right, how none of us should be judged by our worst act. We all have to be thought of in the context of our whole life. But who’s going to tell the story about the whole life? That’s going to be the defense lawyer. That’s going to be the public defender.
And that person and that job and that office needs resources, it needs independence, it needs high quality staff, it needs pay equity. Public defenders in most places in the country still make one-half to one-third what the prosecutors make in the same courthouse. And until we start to address that, I think there’s going to be a limit to what this prosecutor movement can do. So, I’m thrilled, I’m thrilled, but I’m cautious.
Lara Bazelon: So you talked about, you know, the differences between being a prosecutor and being a public defender. You obviously were a public defender, never prosecuted a case, and you talk about who’s going to bring these stories. And you know, in this case of somebody like for example, Satana Deberry or Larry Krasner, they’ve never prosecuted a case and now they are the head of the prosecutor office. Of course, that’s unusual. But there’s this need to sort of inculcate I guess talent and energy and zealousness on both sides.
So what I wanted to ask you is this. Barry Scheck who co-founded the Innocence Project recently said that he thinks that law schools should give loan forgiveness to public interest students who do two years in a public defender’s office and two years in a prosecutor office, but they would have to do equal time in both. What do you think about that?
James Forman Jr.: Well, I’m all for the loan forgiveness. The more loan forgiveness the better. I mean that the crushing debt loads that we impose on students right now is immoral and unconscionable, I think. So I was fortunate to go to a school that had a very well-funded loan forgiveness program. So I was able to become a public defender and you know and do it and and pay off my loans with the assistance of the loan forgiveness program, but most law schools don’t have that. So I endorse that part. Are you asking–?
Lara Bazelon: Do you want your students, some of your students, to grow up and be prosecutors? Is that something that you want for them? And do you feel like you’ll have contributed in some way, because as you say they’re the most powerful actors in the criminal justice system.
James Forman Jr.: Yes, so I do. Do I want–I mean my students are going to become who they’re going to become. I’m realistic about my impact, my ability to impact somebody’s career trajectory.
But what I want them to do is, if they do go and become a prosecutor, I want them to become the kind of prosecutor that is willing to listen to conversations like this, and is willing to you know, read, you know books like yours, and is willing to immerse themselves in the lives of people who have been the most directly affected and brutalized by some of the harshness of the system.
And I think that if you’re going to become that kind of prosecutor, I think it’s very hard to do it in an office that has an entrenched culture that is counter to those things. So the one thing that doesn’t work, I think doesn’t work for young lawyers, and won’t work if it’s the Scheck model, is I don’t think that you can go into an office–.
And I see this all the time, students come to me and they say, you know, I took your criminal law class, I took your class in the prison, I did the clinic, the criminal justice clinic, I’m really passionate about these issues, but I want to go in a place where I’m going to have more power and influence and I want to go into a prosecutor’s office and you know, what do you think? And what I tell them is, they think that they are going to change the culture of that office, but that office culture is more powerful than them and it is going to change them.
And now. What to me the only thing–so historically I have cautioned people against doing it. What changes that for me is this new generation of folks that we’re talking about. If somebody really is a true, transformative, progressive leader at the top, then they’re going to need young people and mid-career people who come into that office to support that vision.
Because the problem that somebody like Larry Krasner has, or that any of these folks is going to have, is they come in and they inherit a whole bunch of folks who don’t share that vision. They didn’t get hired with that vision. They’re afraid of that new vision. Because think about it, right? I think we don’t really take seriously–think about what it means to come in with this new orientation and this new model. In essence you are telling people on your staff that for 5 years, 10 years, 15 years, 20 years, you’ve been putting people in prison for too long. You’ve been putting too many people into prison. Who wants to hear that about themselves?
This is the hard thing, and it’s hard for judges too. I went and talked to all the DC Superior Court judges, all the people that gave me hell and gave my colleagues hell for years, invited me to speak at their professional development. There were a hundred of them in the room. The judge that I just told you about wasn’t there because he moved on to another court, but but a lot of people like him were there.
And I couldn’t believe it, they were willing to listen to me. And I told him the stories, the cases, and I gave them the defender perspective. And then at the end I told them that they had to–and I said upfront, listen, if a judge came into the Yale Law School faculty and told us how to write articles, there’d be a lot of defensiveness. So I get right now I’m coming in here and telling y’all something about your job and I respect your right to be defensive.
But I told them the only thing they could do is start giving shorter sentences. I told them, “how about this as an experiment. Look at what you did last year”–because you know, judge keep books and guidelines and they’re not trying to be arbitrary–“look at what you did last year, this year, for the next year, whatever sentence you’re inclined to give, cut it by 10%. And then let’s look and see at the end of the year if crime continued to go down in the city, which it most probably would, given the trends. And then if it hasn’t gone up, how about next year you do another 10%?”
And they all looked at me like I was totally nuts, because I was…And one of them said, “wait if I did that, that’s an admission that I’ve been giving sentences for too long, that I took somebody’s liberty for too long, last year and for the 15 years before that I’ve been a judge.” And I was like, “I know, that’s what I’m saying.”
So it is hard to get people to change their entrenched practices and their habits, but that’s actually what some of the justice reform work that’s inside the system, right, which is only a piece of it, but some of the work that’s inside the system is, that’s going to have to be a piece of it.
Lara Bazelon: I want to make sure we have time for questions, and I know I talked to you for too long, cause I couldn’t help myself. But if there are questions from the audience, we would love to take them and I know that means yeah, bringing up the lights cause we can’t see you.
City Arts & Lectures: This question is at the center of the orchestra.
Audience Member 1: Hi, thank you all so much for coming and talking. Mine is really simple. It’s for both of y’all. Which is just, do either, both of y’all, believe in prison abolition? And if so, why? And if not, if you could talk about why you don’t support prison abolition.
James Forman Jr.: Thank you for that question. I think it’s a really important one and I love– I’m just going to tell you why I think it’s so great that you asked it here and that it’s the first question, is that not long after my book came out I gave a talk in Oakland and at the end of it a woman came up to me and she said, “you know, you sound like a prison abolitionist, but I never heard you use the terms prison abolition and I’m just wondering why.”
And that created a conversation that started then and has continued. And so I’ve been reflecting on it a lot, you know for the last couple years at least, if not maybe a little bit longer.
So here’s what I love about–I’ll tell you what I love about prison abolition. I love the idea that we commit to working for a world where there are no prisons and there is no need for prisons. And that we force ourselves to ask the question, what kinds of changes and structures in society would, what are the things we would need to change to make that world possible? And then we commit ourselves to taking that action.
I love it because it forces us to not accept little mild reform, a little bit here, and a little bit there, and call it victory because we got a ten percent reduction or a 20% reduction. Right, it forces us, it constantly challenges us to go further than people are comfortable going, many people, and to be more imaginative, because the only way we’re going to get there is to be more imaginative than we’ve been so far. That’s what I love about it.
For me what I struggle with–and I don’t, and I say this, and I call it a struggle, as opposed to an objection, and to me that’s an important decision, I want to be clear–what I wrestle with or what I struggle with are that I, there are cases that I think about, and not just individual cases, but categories of cases where I feel this really strong impulse and urge to punish in a way that feels more severe or liberty restrictive than what happened with Dante.
Right, for example, you know, I think about Michael Cohen. Nah, I do. I think about Michael Cohen. And I think about–and it’s really serious, I’m saying this is a struggle and I think like…
Lara Bazelon: Or a Harvey Weinstein. Yeah, of course, he’s pre-trial, but.
James Forman Jr.: No, but I’m yeah, I was just using Michael Cohen because he’s so recent, but yes. And I think about the categories of cases, I think about police shootings and I think about victims of racist violence. And I think about the white supremacists who drove, an anti-semite, who drove into that crowd in Charlottesville. And I think about all of these historic categories of victims, women and people of color especially, and it’s hard for me to get myself to a place where I can either believe that those crimes will stop happening…
Right, I want to believe that we can create a world where there won’t be any Michael Cohens, where there won’t be anybody that would be willing to lie and cheat on the American public to become president. I want to believe that I could help create that world, but I’m not opt–I don’t truly believe it.
And so in the meantime, I don’t know what else to do with that person. And so this is what I work with. And I’m not satisfied with my answer because I feel like well, does that make me, you know, not an abolitionist?
And one other thing is I can also go down the road of, and I want to be clear, even for the people that I’m describing, I want prisons to look very different from how they currently. Right. I don’t want them to be these barbaric, dehumanizing places. I want them to be places where education thrives. I want them to be places where the world looks as much like the outside world as possible.
But I’m still not going to kid myself and not call that prison. If you’re not allowed to leave, I think it’s prison. And even in Norway and Sweden and the places that have the most amazing prisons, they’re still prisons. And I want to work towards prisons that look like that, but I feel like it’s a little bit a cheat on myself if I say well yeah, I’m a prison abolitionist but I’m going to be comfortable with a person having their liberty restricted in that way.
So these are all the things that I wrestle with. I hope that’s been helpful.
City Arts & Lectures: This question’s at your questions left.
Audience Member 2: Thank you. I’m still sort of wrestling with what sort of caused this shift in the electorate in terms of the new progressive reform-minded prosecutors, especially as a woman of color and seeing how you can just you know, the very act of living can cause a police intervention. And so I’m just curious about what you think is behind the shift. Is it the opioid crisis? Like where is it coming from?
James Forman Jr.: I think it’s coming from a bunch of different places. I think that it’s–so part of it is that we’ve had almost 20 years now, with pockets, exceptions, but at a national level and in most cities, we’ve had a sustained crime decline and so there has been less of a temptation or effectiveness of running a pure kind of fear on crime type of messaging. And of course, there’s exceptions to that. Right, our current president incorporated that very much so into his campaign.
But in general you’ve seen many fewer campaigns that have been sort of built on that, because the polling and other data suggests that it doesn’t poll as well, it doesn’t work as well, it doesn’t drive voters to the polls in the same way that it did before. So that’s number one.
Number two is I think you have a lot of kind of very high-profile writers, right? You have people like Michelle Alexander and Ta-Nehisi Coates and Bryan Stevenson, and I’m just, I’m talking about this sort of very, I’m talking about the best-sellers, put to one side all of the academics and writers and other people that have been producing work that some of that work relies upon and draws from, right, that had been documenting the harms that come from the approach that we’ve taken over the last 40 or 50 years.
And I think that work especially has resonated in particular in communities of color, in particular in more kind of progressive jurisdictions, but it’s also started to have a broader impact. I mean in some states, not in every state, because there are some exceptions to this, but in some states there have been a lot of conservatives who have gotten involved with and gotten engaged in at the local level.
It’s not, we don’t see, it’s not, doesn’t get a lot of attention, but at the local level on criminal justice advocacy, in part because so many people now have been touched by this system. So many people have a friend or a family member, right, who’s been impacted by this system. And yes, disproportionately it’s people of color, no question about that, but you can disproportionately affect people of color and still affect a whole lot of people, you know who are white folks, and that has happened in this in this country as well.
So you have more kind of sources of understanding and sources of support. People don’t talk about it so much. There’s still a lot of stigma associated with being public about it, but people know about it. They know from their family member. So that then opens the door for somebody to come in with a message, right, that builds upon that. A message of humanity and treatment and let’s make this a mental health issue not a criminal justice issue.
And even if people aren’t public and they’re not marching, they’re sitting in their living room and they’re like, yeah that makes sense to me, that makes sense. That is a mental health issue. I know, because my brother, my cousin, Etc.
So I think that and there’s been a lot of grassroots activism. I mentioned this before but the number of organizations and individuals and nonprofits, and a lot of this is outside the public glare, a lot of this is in community centers and in churches and is in small spaces where formerly incarcerated and justice involved and returning citizens are participating, but there’s more and more activism and energy, Black Lives Matter and all the associated and related organizations that have taken up this mantle.
Right, and that was a big debate, just to go back to the abolition question. Like in Philadelphia, for example, it was a huge debate among the Abolitionist Movement of whether to get involved in the Larry Krasner for district attorney campaign and knock doors. Because people said, well he’s still going to be a prosecutor and he’s still going to ask for people to be locked up.
And the response took various forms, but it was basically yeah, that’s true, but it’s going to relieve a lot of human suffering because there’re going to be fewer people locked up and to get to a point where there’s no people like locked up right we’ve gotta–it’s not going to go from 5,000 in the Philadelphia jail to zero, we’re going to have to reduce that number over time, and this is going to be a way towards that. And that was the position that ultimately prevailed. Most people in the movement there decided, yeah, this was sufficiently transformative that we were going to get behind it.
So, you know broad shifts, intellectuals and writers, nonprofits and activists. I think all that together has–and your point about opioid and that’s made it, again not so much in the African-American Community, but for other groups have maybe had more kind of sympathy to the issue because the face of the drug addict, the face of the user, is somebody, is a white face today and that’s created a level of sympathy. So there’s been lots of different factors that have all pushed in this direction.
Lara Bazelon: I think we have time maybe for one last question.
Audience Member 3: We talk, you write in the book, and you talked earlier about a restraint on imagination and the idea that people are trying to be saved and they were turning to the criminal justice system for it. So if we’re talking about a framework that doesn’t exist within like abolition, how is that different from continuing to rely on criminal justice to solve our problems?
James Forman Jr.: Wait could you say it again? Just say the last thing again?
Audience Member 3: I’m saying if our solutions lie within progressive prosecutors and more investment in defense offices, how is that a different answer than relying on criminal justice to solve our problems?
James Forman Jr.: That’s a good question. And I probably should have talked a little bit more about this before, so let me mention it now. Right, it’s kind of connected to the answer that I was just giving before where I was talking about the debate over what to do with Larry Krasner. Right so that’s still a criminal justice solution right, in the sense that, as you’re saying, electing a progressive district attorney is still changing something within the system, and I think that’s a piece of the work that needs to be done.
But I want to be really clear that I think that’s only part of it. So for example, look at the program called Law Enforcement Assisted Diversion, right which is a program that started out of Seattle. And the basic idea behind the program was, how about if police officers didn’t just have the powers that I just mentioned earlier, to arrest and to send you to the jail, but what about if police officers who are on the streets, who are talking to folks, who are meeting with and in conversation with addicts and users, what if they had access to the Social Service Network?
So what if they could, instead of bringing somebody to the jail, what if they could bring somebody directly to the treatment program? So not what we now have, which is give a phone, you know the most, you know, give a phone number right, or Tasha Willis, get the treatment in the system. No, what if they could just take you directly to the program? If you, of course, only if you wanted to go.
And that’s a really important, I think, and positive harm reduction strategy. At the same time, right, the criticism has been made and I think appropriate, which is well, yeah, but that’s still within law enforcement. Wouldn’t it be even better than that if we took the police out of it entirely and we took those resources and we put them directly into treatment programs and funded community outreach workers so those community outreach workers could be the ones going to the corner, having conversations with addicts, with users, and you keep law enforcement out of it entirely? And I think that is, my view is that is the better approach. That’s a more public health model. It’s a more treatment oriented model.
But I still think it’s useful within the criminal justice system or the criminal legal system, better called, that it’s still useful within that system to slowly move to shrink it and to push some of the, kind of the the intuitions of the system and some of the resources of the system, to push those away from jail towards treatment in a way that that lead presupposes.
So I guess what I’m saying is, which is you know, maybe unsatisfying, but the world is messy and it’s what I believe, is that we do have to do both of those things at the same time. We have to try to change the system so it is less punitive and it is more caring and we’re more likely to have a Dante and Mr. Thomas outcome, number one. And number two, we have to as much as we can, redirect resources away from the system outside and into communities, so fewer bodies end up in the system to begin with.
Lara Bazelon: I think we’re going to have to end there. Thank you to everyone and I want to say…
And thank you so much James Forman Jr, for your beautiful book and spending the evening with us. And, for people who still have questions, and most importantly want to get this book, James Forman Jr. will be outside signing copies. So feel free to go outside and continue this wonderful conversation.
Thank you everyone.