May 1, 2019 – James Forman Jr. knew he would be a civil rights lawyer. In the 1960s, his father, James Forman, served as executive secretary of the Student Nonviolent Coordinating Committee (SNCC), one of four major civil rights organizations of the era.

The civil rights issues of today are different, but James Forman Jr., a law professor at Yale Law School, is following in his father’s footsteps. His recent book, Locking Up Our Own: Crime and Punishment in Black America, dives deep into mass incarceration and its disproportionate impact on people of color. It won a 2018 Pulitzer Prize for nonfiction.

“I grew up thinking about civil rights issues,” said Forman Jr., who is a featured speaker at State Bar of Wisconsin’s 2019 Annual Meeting and Conference (AMC), June 13-14, in Green Bay. “As I got older, I wasn’t initially focused on the criminal justice system.”

But after Forman graduated from Yale Law School in the 1990s, he clerked for two federal judges, including Justice Sandra Day O’Connor of the U.S. Supreme Court. In the 1990s, more states were getting tough on crime and imposing harsher sentences.

“The federal courts were closing their doors to incarcerated men and women, parole was being revoked, states were increasingly adopting tough on crime policies,” he said.

“I looked at what was happening and thought, this is the civil rights issue for me. This is the civil rights issue of my generation.” Forman Jr. became a public defender in Washington, D.C., which serves as a backdrop for his book on mass incarceration.

Locking Up Our Own

At the time, the majority of Washington, D.C.’s population was African-American, with a majority black police force. The majority of the city’s elected officials were black, including the mayor. This was the country’s first city with a majority black population.

“Yet, we were doing so many of the things that the rest of the country was doing, in terms of tough on crime policies that were sending more people to prison, for longer periods,” Forman said. “It took me aback. I wasn’t prepared for that.”

“It made me reflect on the question, which is the motivating question of my book,” said Forman, whose book was one of New York Times’ 10 Best Books of 2017.

“What was so powerful and so overwhelming, so inescapable in this country over the last 40 or 50 years that even majority black communities would start to adopt some of these practices? That was my entry point into writing the book.”

Since the book was released, Forman has appeared frequently to discuss and speak about the issue of mass and disparate incarceration. At AMC, he will provide insight on a major issue for Wisconsin, which has a prison population of over 23,000.

In preparation for his talk, Forman and Marquette Law School Professor Michael O’Hear, also a nationally recognized authority on criminal punishment and an expert on Wisconsin’s experience, joined State Bar Legal Writer Joe Forward for a discussion about the book, mass incarceration in America (and Wisconsin), and the path forward.

The following is an abridged transcript of the Forman-O’Hear discussion, which includes a sneak peek of other topics that Forman may discuss at the AMC next month.

Professor Forman, what were some of the factors that led to mass and disparate incarceration in America?

One thing was rising crime and rising violence, and fear of crime in the 1960s and 1980s, two decades I focused on. Homicide rates doubled in the 1960s, heroin in the 1960s and crack in the 1980s, created a real palpable sense of insecurity. People were scared, and they were looking for responses.

At the same moment, at the national level, there were politicians who saw that as an opportunity to win votes and win elections. It’s also true that at the local level and in a lot of the black communities that I’m studying, there were politicians who saw the tough policies as a way of responding to a real crisis.

They felt a need to make the communities that they were representing safe, because black communities in this country historically haven’t received enough protection from the law, and so they thought ‘well okay, what can I do? I want to do something. I want to do anything to try to solve this problem.’

So in a moment when the nation was going in this direction, they were willing to jump on to a similar set of policy solutions, in part, I say, because they weren’t even aware of all of the consequences of what would follow. They didn’t know, necessarily, how dramatic and how devastating things like mandatory minimums would be. And then, of course, once those policies are enacted, they are really, really hard to roll back. We are seeing this around the country. We are seeing this in Wisconsin. You undoubtedly have laws that wouldn’t pass today, but are hard to repeal.

And so that’s the way, when you are governing in these moments of panic and moments of crisis, you can glom onto what look like they will be remedies, and then later when the remedies turn out to be more toxic than the initial disease, it’s incredibly hard to change the course of treatment.

The other thing that I write a lot about is how African-American communities and leaders of those communities, had what I call an “all-of-the-above approach” – they wanted everything and anything that they could get to try to respond to what appeared to be this existential crisis of crime and violence, and so they said, ‘well we want more money for police and prosecutors, but we also want more money for schools and for healthcare, and for housing, and for drug treatment, and for mental health treatment, we want a Marshall Plan for urban America, we want the U.S. government to invest in black communities the way they invested in Europe after World War II.

But because of how political power is distributed in this country – because African Americans and local leaders don’t hold majorities in Congress, they would go to Congress and they would ask for money for all-of-the-above, and they would come back from Congress with money for one-of-the-above, and the one-of-the-above was more police, and more prosecutors.

Professor O’Hear, can you explain what was happening in Wisconsin during these periods?

There are two points of interest here that occur to me. One is the importance of rising rates of violent crime in the 1970s and 1980s and the way that those created a sense of desperation among members of the public and policymakers to try to do something to address the epidemic of violence.

The story of Wisconsin is that our incarceration rate began to rise in the early 1970s, and the prison population rose for 31 consecutive years, unbroken increases in the size of the state prison population. That 31-year time period of the imprisonment boom really breaks down pretty neatly into two equal size pieces.

You have the part in the 1970s and the 1980s, violent crime in Wisconsin was pretty consistently going up over that time period. And the rate of increase in the prison population is almost exactly equal to the ratio of increase in violent crime, so it’s very easy to see what’s driving the first path of the imprisonment boom.

But the puzzlement is, beginning in the 1990s, violent crime flattened. Wisconsin does not have the drop in violent crime that the rest of the country experienced in the 1990s, but it flattened – it was basically stable from 1990 to the present – little ups and downs here and there – and yet in 1990 we were only halfway through the imprisonment boom. So the prison population continued to grow for another 15 years, and there’s no crime wave to explain that. That pretty clearly is indicating that the system was getting tougher.

Now, I think that story, in broad outlines, is similar to the national story. But here’s where the Wisconsin story diverges. As you’ve indicated nationally, and maybe particularly in the federal system in Congress, there was a lot of adoption of a lot of very consequential mandatory minimum sentences. Wisconsin really did not do that – Wisconsin did not go down that path – there were some mandatory minimums that were adopted, but they were pretty narrowly focused, and were not applied frequently in practice. The legislative change that mattered a lot more, in my view, was a lot of increases in statutory maximums.

The Wisconsin Legislature responded to public outcry about the crime wave by giving judges and prosecutors more discretion, not less discretion, but more discretion to impose long sentences. And the judges followed right along with that.

So, Wisconsin is an interesting contrast to the national story because the Wisconsin story really highlights the importance of discretion, and of the discretionary actors in the system, and it tells you that mass incarceration is not just about taking discretion away, and legislatures adopting mandatory minimums.

It’s also about elected judges and elected prosecutors who are subject to the same political pressures as the legislators are – using their discretion to push up sentences and increase the punitiveness of the system. That’s my overview on Wisconsin.

Professor Forman, do you see a path forward?

One of the themes of my talk is that we have created a problem that touches on almost every aspect of American society, and as a result, there’s something that everybody can do. There’s a piece of this that anybody, anybody who is at the talk or in the state of Wisconsin or who is in the country for that matter … if they are motivated to pick up this issue and make it a part of their life, there’s work that they can do.

I will try to talk about some of the different kinds of ideas I have for that. We were talking about the need for social and economic investments in under-resourced communities. One of my particular passions within that is education.

Right now, I’m driving to a prison where I’m teaching a class on the criminal justice system. It’s a class that brings students from Yale to prison every week, and one of my calls to action will be around restoring or creating high-quality educational opportunities inside prison.

The research shows that for every dollar we invest in education, for people who are incarcerated, we get $5 return as a society. We get that return because recidivism rates go down, and employment rates go up when people have a chance to be educated, so it’s a sound, proven investment. However, it’s one that – despite the evidence – we have made less available over the last decades.

Prisons have become intellectual deserts, places where very little is happening. There’s also employment. Another passion of mine is talking to employers about how they become fair chance employers, employers who work aggressively to try and reduce the barriers to employment for people who have a criminal record.

This isn’t just people who are incarcerated. It has become increasingly difficult for people to get a job, once they have a criminal record. But there are things that employers can do – there are employers who are really leading the way nationally and becoming more inclusive and more open in their hiring practices.