Forman, a Yale Law School professor and former Washington, D.C., public defender, has written a masterly account of how a generation of black elected officials wrestled with recurring crises of violence and drug use in the nation’s capital. Beginning in the late 1960s, these officials faced the growing challenge of drug addiction to heroin and later, crack. Forty-five percent of male jail detainees tested positive for heroin in 1969, up from 3 percent in the early ’60s. During roughly the same period the city’s murder rate tripled. By 1987, officials found that 60 percent of Washington arrestees tested positive for crack cocaine.
Letters to public officials, mined by Forman, reveal that much of the black community did not agree on what to do. No one disputed the facts of rising drug use and ballooning murder rates across the city. Some of the earliest options on the table ranged from decriminalization of marijuana — following the lead of white civil libertarians — to increased sentences. Many agreed that some measure of punitive intervention was necessary. But how much could be deployed without destroying the body politic or the social ecology of black Washington was anybody’s guess. There were also calls for prevention and drug treatment over punishment, targeting poverty as a root cause of crime. A number of local and national civil rights leaders preferred to follow Michigan Representative John Conyers’s proposal for an urban Marshall Plan.
Ultimately, Washington’s black officials embraced the Nixonian law-and-order mood of the nation, passing increasingly tougher laws and adopting aggressive policing practices into the 1990s. Marion Barry, Washington’s future mayor, claimed the mantle of drug warrior (before he fell victim to his own addiction), and the stark and visible pattern of African-Americans increasingly locking up their own was replicated elsewhere. “When an urgent problem required a short-term solution, law enforcement was regarded as the only answer,” Forman writes. In 1978, Washington appointed its first black police chief, Burtell Jefferson, a staunch advocate for mandatory minimum sentencing, to lead the nation’s first black-majority police department. By 1990, there were 130 black police chiefs in the United States and more than 300 black mayors.
Given a century of brutal, anti-black racism in the criminal justice system after the Civil War, these developments give rise to some obvious questions: When African-American officials finally gained a measure of control over the machinery of the law, why did mass incarceration happen on their watch? In other words, why did they lock up their own?
Forman offers three explanations. First, black officials did not see mass incarceration coming. No one did, he argues. It was “the result of a series of small decisions, made over time, by a disparate group of actors.” (Hayes makes the same point in his book.) Second, after legal segregation fell, African-American class biases came to the fore. Class privilege meant that middle-class and elite blacks had a smaller chance of exposure to criminal victimization and the full hammer of the law, especially long prison sentences. Citing a 1966 University of Michigan study, Forman writes that “a surprising number” of working-class black cops “didn’t like other black people — at least not the poor blacks they tended to police.”
The third reason is a big deal and a major breakthrough. Forman’s novel claim is this: What most explains the punitive turn in black America is not a repudiation of civil rights activism, as some have argued, but an embrace of it. “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,” he writes. “Far from ignoring the issue of crime by blacks against other blacks, African-American officials and their constituents have been consumed by it.” Forman recalls his own experience as a public defender and the case of a 15-year-old first offender who was facing sentencing for handgun possession and a small bag of pot; a black judge, hearing Forman’s plea for leniency, was unmoved. “Dr. King didn’t march and die so that you could be a fool, so that you could be out on the street, getting high, carrying a gun and robbing people,” the judge admonished. “No, young man, that was not his dream.”
In this way, post-civil-rights leaders reimagined Dr. King as a crime crusader. In 1995, one year after Bill Clinton signed the biggest crime bill in American history, the nation’s first black United States attorney for the District of Columbia, Eric Holder, announced a major anti-crime initiative called Operation Ceasefire at a Martin Luther King Day celebration in Arlington: “Did Martin Luther King successfully fight the likes of Bull Connor so that we could ultimately lose the struggle for civil rights to misguided or malicious members of our own race?”
This wasn’t the politics of respectability; it was what Forman calls the “politics of responsibility.” Dr. King’s legacy had become fodder for a national trend of personal responsibility jeremiads aimed at black America. This moment peaked about a decade ago just when Barack Obama, an exemplar of propriety, kicked off his presidential candidacy and Bill Cosby was wrapping up a national “call out” tour, dispensing the gospel of tough love in black communities. “Holder’s answer was straightforward,” Forman writes. “Stop cars, search cars, seize guns.”
Predictably, Operation Ceasefire exacted a heavy toll. Police officers stopped black motorists for seemingly any reason, like tinted windows. Officials knew hit rates for guns would be low — police academy textbooks explained as much. At best, investigatory or pretext stops were supposed to be a deterrent. In reality, they fueled racial disparities in the drug war. The law enforcement equivalent of reverse redlining shielded white Washington neighborhoods — and a few tony black ones — from the program. White motorists were given a “free pass,” Forman writes, to keep their drugs safely stashed in their glove boxes. Operation Ceasefire and similar practices elsewhere made it much more likely that black women, for instance, would be arrested on minor drug charges than white men with much higher rates of gun possession and violent crime. Forman gives the example of Sandra Dozier, who was stopped by Ceasefire enforcers in 2000 and lost a good job at FedEx because they found two small bags of pot in her glove box.
Chris Hayes, the host of a news show on MSNBC and the author of “Twilight of Elites,” spent many days covering the unrest in Ferguson, Mo., in the wake of the police killing of Michael Brown, and he counts himself among the many white men whose minor drug offenses did not earn him a rap sheet or cost him his career. “A Colony in a Nation” opens with Hayes moving through security checkpoints at the 2000 Republican National Convention. As he hands over his bag, he realizes he has a small amount of marijuana in an eyeglass case. When the police find his stash, they let it pass. “The police officer who’d found the drugs put my bag on a table and looked at me, as if to say, Go ahead and take it.”
Drawing heavily on personal experiences as a white kid growing up in the crack-era Bronx and attending a magnet school on the border of East Harlem, much of Hayes’s book unfolds along the axis of two “distinct regimes” in America. One for whites, what he calls the Nation; the other for blacks, what he calls the Colony. “In the Nation, you have rights; in the Colony, you have commands,” Hayes explains. “In the Nation, you are innocent until proven guilty; in the Colony, you are born guilty.” At first mention the metaphor seems overdrawn, and eventually it slips a bit under its own weight. White Americans are also subject to “out of control” policing, he writes, because “policing of the Colony has breached the levee and flooded the Nation” too.
But among white Americans, ideas about the collective guilt of black Americans exert a powerful pull. In the Colony, individual guilt or innocence is largely irrelevant. Hayes tells story after story of innocent black suspects routinely standing in for the guilty. Broken windows, stop and frisk, and Ferguson-style revenue policing (“the model of cops as armed tax collectors”) are all presented as evidence of how the separate system works. Even for black homicide victims, detectives in some cities fail to clear half of all murder cases. Many historians have long noted that black folk are simultaneously overpoliced and underprotected. Hayes writes that violence by police or by gangs are “two sides of the same coin.” As such, the Nation evinces a peculiar circular logic: The harm black people do to one another “justifies” the harm the state does in their name. By contrast, the premium on white victimization in the Nation is “painfully clear to people living in the Colony,” Hayes writes. “White lives matter, and it hardly needs to be spoken.”
Taken together “A Colony in a Nation” and “Locking Up Our Own” compel readers to wrestle with some very tough questions about the nature of American democracy and its deep roots in racism, inequality and punishment. Both authors find hope in a shared vision of a future society that protects human dignity and seeks accountability rather than vengeance. “What would the politics of crime look like in a place where people worried not only about victimization but also about the costs of overly punitive policing and prosecution?” Hayes asks. Forman imagines redefining our core values: “What if we strove for compassion, for mercy, for forgiveness? And what if we did this for everybody, including people who have harmed others?”
Because, finally, there may be no pathway to end mass incarceration without reconsidering our handling of all crimes, not just nonviolent ones. Fifty-three percent of all state prisoners are serving time for violent offenses, most commonly robbery. Racism and mass incarceration are systemic problems, but both Forman and Hayes show that the solution will lie not only with policy changes but with individual changes of heart too.
Forman recalls that a 16-year-old he defended was saved from incarceration by the testimony of the victim, who told the judge he didn’t want the teenager to be sent to prison. A system built to make “teeth rattle,” as described by Atlanta’s first black mayor, Maynard Jackson, is not a system capable of transformation; we need to build a new foundation. We need to choose to do it. “Mass incarceration,” Forman writes, “was constructed incrementally, and it may have to be dismantled the same way.”