The Untold Story of Mass Incarceration
October 24, 2017
Oct 24, 2017
28 Min read time
Two new books, including National Book Award nominee ‘Locking Up Our Own,’ address major blind spots about the causes of America’s carceral failure.
Locking Up Our Own: Crime and Punishment in Black America
James Forman, Jr.
Farrar, Straus and Giroux, $27 (cloth)
Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform
John F. Pfaff
Basic Books, $27 (cloth)
I once got into a heated argument with my husband about drug use. I made the offhanded remark that when our infant son reached adolescence, “I will tell him to stay away from the hard stuff; if he must do something, try a little pot.” I have not seen the look on my spouse’s face before or since. After questioning my sanity, he countered that our son would absolutely not touch any drugs: “AT ALL. Never. No way.” My point of course had not been that I would encourage our son to use drugs. It had rather been to draw a crucial distinction between very addictive drugs and those of the weaker variety, knowing that teens will sometimes dabble in the occasional joint, no harm done. But my son’s father is from a community that during his upbringing saw drug use of any kind as derailing, a certain gateway to addiction, jail, and a lifetime of hardship. The casual joint smoker was inseparable from the woman he would see frozen and hunched over in a heroin high by the subway each morning. And both were an insufferable drag on his community.
Forman makes an argument that many scholars have shied away from: that black political leaders played a role in shaping drug crime policy and, ultimately, the consequences of those policies on their neighborhoods.
Readers will come to understand this perspective after reading James Forman, Jr.’s hard-hitting new book, Locking Up Our Own. Just as my spouse was adamantly opposed to my distinction, one I just assumed most of us shared, Forman contends that black leaders in Washington, D.C., during the 1970s vigorously and successfully countered attempts by white lawmakers to lessen the severity of drug laws. Indeed, in the face of arguments from some sectors that marijuana was not a gateway to criminal activity and that users of harder drugs should be treated more leniently than sellers, black leaders doubled down in pursuit of toughened criminal penalties, even for casual users. But not just that. They mobilized behind an agenda aimed at correcting what they perceived as a lack of law enforcement in their communities, as well as a “revolving door” approach to justice. They wanted to create stiffer drug penalties, criminalize more behaviors related to dealing drugs and wielding guns, and expand police authority to surveil and arrest. Black Washingtonians played a crucial role in shaping crime policy and, ultimately, the consequences that those policies would have on their neighborhoods.
Forman asks a question many scholars have shied away from: if mass incarceration is a project of white “law-and-order” politicians and their racially threatened electorates, how did Washington, D.C., a black-governed city with a majority-black police force—the nation’s “chocolate city”—end up with such punitive drug policies and aggressive policing tactics, to the devastation of the city’s poorest communities? When black councilmembers were presented with the option to make marijuana possession punishable by a fine rather than prison time, why didn’t they take it? And when authoring one of the nation’s harshest gun laws, why couldn’t they see what would eventually befall their young? In short, how is it possible that the black political class in Washington would mimic much of the same rhetoric, legislation, and policing strategies found in the broader war on crime?
Evading easy answers, Forman persuasively situates black Washingtonians’ decisions within a context of pitched violence and addiction and an under-responsive criminal justice system. Washington’s turn toward drug prohibition came at a moment before the drug wars, when addicts rarely went to prison. The idea that stricter laws would land many black youth in jail was difficult to fathom but the immediate scourge of violence and drugs drenched the city’s black neighborhoods in fear. The murder rate in Washington had multiplied, guns were easily obtained, and so prevalent were heroin, crack, and PCP that “the police had adopted the strategy of opening fire hydrants and flooding the gutters to wash away drugs and syringes.” In 1975 it was as reasonable, Forman argues, to see marijuana as a “gateway to heroin” as it is now to see marijuana as “a gateway to the criminal justice system.” What looks unjust today—the asset forfeitures, the profiling of the Rapid Deployment Unit, the jump-out squads, the heavy penalties for small-time users—looked acceptable to “many black citizens facing the horrors of the crack epidemic” in the 1970s and ’80s.
• • •
Despite the impressive rise in attention to racialized punishment and policing, the role that blacks themselves have played in shaping our criminal justice system and responses to violence have received markedly little attention. Given the currency black crime has wielded historically, what historian Khalil Gibran Muhammad calls the “enduring . . . discourse of black dysfunctionality,” perhaps scholars have recoiled from the topic. Against this backdrop, Forman’s book is brave, offering a nuanced examination of how black communities and their elected representatives wrestled with rising violence and drug addiction; how they came to embrace a war on drugs and aggressive policing tactics years before Reagan’s war or the advent of broken windows policing; and how they came to eventually regret the surveillance, forfeiture, and criminal records they helped create.
An ill-fated desire to protect black people led black Washington elites to advocate a tough, no-tolerance line on drugs.
Forman undoes the idea that the black elite exhibited what Michelle Alexander calls “an awkward silence” around punishment. Black lawmakers and residents were vocal, proactive, and important agenda-setters. Indeed, it was an ill-fated desire to protect black people, Forman argues, that led black Washington elites to advocate a tough, no-tolerance line, just as my spouse had. Witnessing their communities reeling from violent drug markets and addiction, black leaders practiced what Forman calls the “politics of responsibility” (in a nice twist on the politics of respectability).
Forman’s book shares some key arguments and methodology with Michael Fortner’s Black Silent Majority (2015), which argues that Harlem’s middle-class black anti-crime crusaders were largely responsible for the Rockefeller drug laws and harsh policing tactics unleashed on the lower class. As case studies of Washington, D.C., and New York respectively, Forman’s and Fortner’s books each pursue the thesis that the black community was more responsible for the rise of the carceral state and aggressive policing than is generally supposed. Far from maintaining Alexander’s “awkward silence,” both authors show that anxiety over crime generated a vocal response by black community leaders and lawmakers, one that disproportionately punished blacks by increasing sentences, legislating more crimes, and expanding police presence in black neighborhoods.
Readers familiar with the critiques of Fortner’s book—including Donna Murch’s in Boston Review—will find that Locking Up Our Own evokes some of the same concerns. Both rely heavily on telling the story through black newspapers, which historian Nathan Connolly reminds us were not the representative, agenda-free, and classless spaces Fortner and Forman assume them to be:
Black papers, especially the longer-lived ones like the New York Amsterdam News, tended to veer toward bourgeois visions of black community. In the realpolitik of interracial America, black newspaper owners colluded routinely with white powerbrokers to secure much needed resources for working- and middle-class African Americans. That collusion almost always included assertions of bourgeois black unity, a condemnation of the black poor, and a professed commitment to those forms of state violence white Americans most widely found acceptable.
However, Forman ultimately delivers a more compelling account in several respects. Unlike Fortner, who gives the microphone to a few extreme black voices and asserts that they represent a silent majority, Forman’s account is based on a broad swath of political actors, thought-leaders, and representatives. In addition, his account is based not just in the Amsterdam News but in the actual minutes of city council meetings, which show that debate was tense and votes on measures were often very close. Forman highlights that, at least in Washington, the black poor and working class were often on board with (and voted for) policy responses that ended up criminalizing and punishing; this is in marked contrast to Fortner’s assertion of a class war.
Forman also hones in on an important feature of black political discourse absent in Fortner: he shows that the views of political actors were often quite subtle, rarely describing problems in binary terms—either punish or invest, either safety or racial justice, that violence sprung from either individual or structural conditions. Moreover, their beliefs were neither fixed nor monolithic: Forman shows how their sentiments shifted as the costs of the strategies became clearer and as murder declined. But most importantly, Forman does not minimize the role of racism or claim at the outset (as Fortner does) that black anti-crime mobilization was more important than racially-laden campaigns for “law and order” by white elites. Forman’s book is a compelling example of how to do local history.
How does the focus on black leaders’ mobilization for harsher punishment distort our perceptions of their full political lives?
To ground his story, Forman introduces us to the Washington municipal leaders, local black clergy, and black nationalists who saw themselves as guardians of the black community, bent on “protecting the legacy of the civil rights movement.” For these activists, safety and abolishing drugs were fundamentally civil rights issues that would save black lives. Drug decriminalization might work in white communities, these leaders thought, but a strong assault against drugs was needed in poor black communities, where youth already faced more obstacles and the streets were made perilous by drug crime. Decriminalization, in their view, would be tantamount to abandoning black youth. Some local activists adopted even more aggressive anti-drug rhetoric: the Blackman’s Development Center, led by prominent black nationalist Colonel Hassan Jeru-Ahmed, argued that drugs were another tool for whites to oppress black men and equated addiction to enslavement. Blacks who trafficked drugs were traitors to the race and needed to be wiped out. Once framed in these ways, “the punitive response was hard to resist.”
It was their concern for black lives that gave municipal leaders such as Douglas Moore and John Wilson the resolve to pass legislation that would confine to prison those who committed crimes while in possession of a gun. This concern also triggered a campaign to toughen Washington’s sentencing guidelines for drugs in 1981, led by the city’s first black police chief, Burtell Jefferson, and John Ray, a councilman. And it also was echoed in Eric Holder’s defense of Operation Clean Sweep’s undercover police jump-out squads, which made 46,000 drug arrests in a year and a half alone, ushering in “a new era of policing, one that would endure long after the decline of the open-air drug markets to which the operation had initially responded.” A call to protect black communities was also at work in Initiative 9, the law that substantially raised the mandatory sentence for violent crimes while armed and raised the minimum for selling drugs to 4, 2, and 1 years for heroin, cocaine, and marijuana respectively. Two years after it passed, the number of prosecutions for drug offenses soared 300 percent, from 838 in 1982 to 2,277 in 1984. Crucially, it was passed in all of the city’s black neighborhoods (and received its most pronounced support in poor areas) and failed in just one—a majority white neighborhood.
Representatives such as Moore, Ray, and Wilson were not acting in bad faith, nor were they naïve. They recognized the immediate costs of a racist police force that targeted their communities; but an increase in black arrests for drugs was a necessary price—unfortunate, yes, but ultimately less harmful than the decimation they were witnessing. Arrests were seen as “a tax paid in exchange for the right to move in public spaces.” They also understood that calls to be tough and anti-crime were often anti-black. And they knew the history of racist campaigns to disarm blacks as well. But the murder rate of black youth and the violence brought about by the crack epidemic loomed larger. Broader solutions—treatment, better jobs and housing—were long-term solutions that Holder, Jefferson, and Fulwood supported, but which were not immediately available to them. “And in times of crisis,” Forman concludes, “even a bad answer beats no answer at all.”
Forman’s core innovation is the “politics of responsibility” idea, which meant that black leaders were as concerned with the front-end investments in their people as with the back-end investments in keeping lawbreakers accountable. Forman reminds readers at several key points that Moore, Rey, Wilson, and others advocated not only for more punishment but for an “all of the above” approach that would lessen violence and drugs and attack inequality. He parts ways with Fortner in a crucial respect, noting that black leaders never abandoned a commitment to “root cause” solutions to violence. This meant that they also vigorously supported housing programs, jobs, better health care, an expanded welfare state, and quality schooling, and they opposed Reagan’s drastic cuts to social programs. They sought harsher laws and better opportunities simultaneously. But in his richly detailed account, the weight of the prose, granular archival documentation, and even the bombastic title, Locking Up Our Own, goes to showing black leaders asking for one solution—tougher laws and greater enforcement of the laws.
Despite an incredibly powerful and well-researched account, after I finished reading, I couldn’t help but wonder how Forman’s focus on black leaders’ mobilization for harsher punishment distorts our perceptions of their full political lives. What else did they put on the agenda that was ignored because it did not square with politically resonant discourses of criminalization? And how did their response interact with the broader institutional context? This was the decade, after all, when Washington, D.C., was being used as a testing site for national anti-crime efforts and billions of dollars were flowing into local criminal justice efforts, as Elizabeth Hinton has shown in her recent book From the War on Poverty to the War on Crime (2016).
The fact that black calls for more punishment always win the day—while calls for greater investment are ignored—points to the dynamic of ‘selective hearing’ that so often characterizes black relationships to power.
For instance, in the chapter on guns, Forman discusses John Conyers’s harsh legislative proposals on gun bans. But he does not discuss Conyers’s other main priorities, which commanded much more of his attention than guns—namely, his desire for a full employment bill, his efforts to create a Citizens Community Anti-Crime program, his opposition to the crime control legislation foisted on the district by Nixon, and his almost endless politicking in the 1970s about the necessity of solving crime’s root causes. We see Maxine Waters as an assemblywoman in California successfully increase criminal penalties for PCP in 1978 but not her role in banning police from strip searching people suspected of misdemeanors. We hear Jesse Jackson and Marion Barry likening drug dealers to Klansmen and slavery but rarely their statements in support of ending poverty. Forman concludes, hoping to elicit the reader’s sympathy, “Instead of an all-of-the-above response to drugs, violence, and disorder, black America had gotten only one of the above: punitive crime measures.” But with statements accompanied by little specific detail of their “all of the above approach,” this statement is much less powerful than it could have been.
Forman is masterful at showing that these issues were contested among black Washington elites and that calls for more punishment came before the fallout of such an approach came into view. However, I suspect that Forman downplays the degree to which black Washingtonians were both more uneasy and more prescient than he implies. In a column in the Amsterdam News in 1973, Leroy Clark wrote:
I would like to give some warnings—which shouldn’t even be necessary—warnings against us—you and I—making the addict and even the addict pusher the ‘new nigger’ and the ‘new spick’—for it can’t be done without your help. And I say these warnings shouldn’t be necessary because, unless you have forgotten, when has ‘law and order’ ever meant protection for our elderly Mrs. Jones, so that she won’t have her pocketbook snatched with her little change in it? When has it ever been more that a racial signal to galvanize crippled white minds to do battle against us—to divert them away from the sources of their real oppression?
The tragedy of the United States’ routine “one of the above” response to black “all of the above” requests for criminal justice reform raises questions about the fundamental limits of democratic responsiveness to black communities. The fact that black calls for more punishment always win the day—while calls for greater investment are suppressed or ignored—points to what Hinton, Julilly Kohler-Hausmann, and I have referred to as the dynamic of “selective hearing” that so often characterizes black relationships to power. Similarly, Muhammad has spoken of black calls for punishment as a “passport for relevancy” in a society that regularly subverts black demands for social intervention.
In the final appraisal, few books surpass Forman’s in offering an account of how our criminal justice system came to be at the local level. And this is further enriched by Forman’s ability to bring his reader to the present, drawing on his extensive experience as a public defender and educator in Washington, D.C. Using firsthand narratives, he shows how Initiative 9, Operation Clean Sweep, Operation Ceasefire, and the many pieces of harsh drug-law legislation continue to damn Washington’s poorer black youth to lives of surveillance and jail.
• • •
John Pfaff’s message in Locked In is direct: we are looking for the causes of America’s incarceration crisis in all the wrong places. To argue his case, he positions his book as an attack on what he calls “the Standard Story,” a set of beliefs about the causes of incarceration that he argues is commonplace and quite misguided. This Standard Story centers the war on drugs as the cause of incarceration’s historic rise and adds the following three auxiliary points: 1) most of our prison population is made up of nonviolent offenders; 2) long prison sentences fueled our prison boom; and 3) mass incarceration derives from changes at the federal level.
Pfaff’s Standard Story is a strawman: no scholar working today accepts these premises in total. Several have already made the point that we have overemphasized the war on drugs, that we focus too little on violence, and that while the private prison industry is a sexy topic, it is also a limiting one: the most prominent include Hinton, Jonathan Simon, Lisa Miller, and Marie Gottschalk. It is fairly common these days for scholars to note that even if we were to free all drug offenders and abolish both the entire federal prison system and the whole private prison system, engorged prison populations would still be a crisis, one that would continue to set us apart from the rest of the world’s democracies. And Pfaff pretty much buys the standard functionalist argument that our modern carceral regime arose from an attempt to deal with actual crime, without reflecting on the many ways that the modern state actively channels black youth into a system that finds increasingly inventive, perverse ways to define their lives as criminal.
Underappreciated in most scholarly accounts of the carceral state, local prosecutors have been largely responsible for driving prison expansion since the early 1990s.
In spite of these shortcomings, Pfaff offers a unique and quite compelling thesis for what is driving incarceration, at least since the early 1990s: he argues that prison expansion was caused largely by local prosecutors. Underappreciated in most scholarly accounts of America’s carceral state (and in public reform discussions until very recently), county prosecutors control who is imprisoned because of the “unfettered, unreviewable power” they have over a key point in the criminal justice process: the decision of whether to charge a person, what offense to charge, how many charges to bring or whether to dismiss a case, and whether to invoke prior offenses. These decisions are pivotal in determining who is locked up and who remains free. More than the judge, more than the legislative statute governing our responses to crime, and more than the decision by police to arrest someone, “the person driving up [prison] admissions is the prosecutor.” Almost every powerful actor in the criminal justice system has checks on their power and is subject to important oversight mechanisms. Except prosecutors. And given this power and lack of oversight, it is remarkable that few scholars have engaged in a systematic analysis of prosecutorial power and its excesses.
Prosecutors escaped our notice even as their actions rapidly changed, Pfaff contends. From the mid-1990s on, prosecutors steeply increased the rate at which they filed charges; between 1994 and 2008, the number of felony prosecutions rose from 1.4 million to 1.9 million in the 34 states with reliable data. Otherwise stated, the odds of catching a felony case once arrested soared (rising from 1 in 3 arrests leading to a felony case to 2 in 3). And because the odds of landing in prison once charged with a felony did not change, this meant that more and more people went to jail despite an overall decrease in the number of arrests during the same period. Indeed, Pfaff shows that the rise in prison admits derived almost entirely from prosecutors bringing many more cases, particularly against violent offenders. This growth in felony filings happened at the very same time as—and in spite of—the nation’s historic drop in crime rates.
Plea bargaining has become prosecutors’ weapon of choice, with strict mandatory sentences wielded by aggressive prosecutors as a credible threat to induce people to plead guilty to avoid unconscionably long sentences. Thanks in large part to these strong-arm tactics, an astonishing 95 percent of Americans charged with a crime end up pleading guilty, usually to a lesser crime. As a result, “nearly everyone in prison ended up there by signing a piece of paper in a dingy conference room in a county office building, or in a dingier room in a local jail.”
In general, Pfaff is a careful statistician. At times though, his claims do not jive. For example, he makes an important point that by the time Reagan’s drug war commences, the incarceration rate had already expanded 80 percent. Yet so doing, he appears to undermine his own analysis of prosecutors and their dramatically increased case filings, which is a 1990s story. As Gottschalk reminded us years ago, the carceral state’s scaffolding was built up over a very long time, long before it registered in incarceration rates. But Pfaff basically ignores infrastructural developments that Hinton and Gottschalk have masterfully elucidated. He also claims that prison growth is the result of more people being admitted to prison “for fairly short terms” but then later says it is not “the case that we are in fact admitting more marginal offenders to prison.” If the latter is right, then it has to be the case that we are admitting more serious, violent offenders to prison for short terms. But this is never explicitly demonstrated.
One of Pfaff’s key contentions is that, for all the hubbub over legislative moves to increase prison stays, the facts show otherwise: time served barely increased and so cannot be a major driver of prison expansion. To make this point, he looks at the change in time to release from 2000 to 2010. Not much changes. However, it is curious that he does not look at a longer time horizon given his argument that prison is rising before Reagan’s war on drugs. This is where the argument breaks down. If one extends the trend further back than 2000, inmates began serving longer terms for many offenses, particularly violent. For example, in 1964 the median time served for whites for homicide was 46 months; in 2005, these offenders were serving 66 months. Median time served expanded even more for blacks for homicide, from 51 to 108 months from 1964 to 2005. Also, it is quite possible that by the 2000s, what characterizes our system’s transformation was both a flow and a stock: more people were being admitted for short stints at the very same time as a large portion of inmates started staying longer. The median would not register much movement even while time served for some had lengthened. And finally, focusing on county-level incarceration rates is a strange choice; as Pfaff himself notes many times, prison inmates are counted in the often distant counties they are confined in, not the places they call home.
Prosecutors enjoy unchecked power over a key point in the criminal justice process: the decision of whether to charge a person, what offense to charge, how many charges to bring, whether to dismiss a case, and whether to invoke prior offenses.
Pfaff is at his best when illustrating the profound structural biases that facilitate prosecutorial overreach: because counties fund prosecutors but prisons are funded by the state, prosecutors can be aggressive—go on prosecution sprees, even—and not bear any of the financial costs of their decisions (and probably incur political benefits). Moreover, because county jails and county probation systems come out of the county’s wallet but prisons are state-funded, “leniency is actually more expensive than severity, and severity is practically free.” Add to this the fact that the prosecutor answers to no one at the county level besides an electorate that rarely votes him or her out. The political incentives prosecutors face to be punitive are strong—after all, it is rare that an elected official is ousted for locking up too many wrongfully convicted people. In addition, the selection of district attorneys often gives disproportionate power to suburban whites in a county, who do not bear the costs of prosecutorial punitiveness. It is an old story: those with the most power feel the least sting.
Despite this incredible power, few mechanisms exist to rein in prosecutorial power. Prosecutors are shielded from public accountability and few successful models for regulating their power exist. Pfaff writes:
It should alarm all of us as a case of democratic failure. Prosecutors are profoundly powerful. We should not be forced to guess why they do what they do, or why their behaviors or attitudes have changed over time. Prosecutors should be as closely studied, examined, pushed, and prodded as any other government official.
Pfaff’s intervention is a major step in that direction, and his book is peppered with astute observations. He notes, for example, that our prison is not just made up of an aging population; we are actually admitting more older offenders than ever before. This makes little public safety logic, since these older inmates are so much less likely to be in their peak crime-producing years. Moreover, the focus on the private prison industry has distracted us from the fact that the public prison industry faces growth incentives that are just as intense, for which reason it will fight decarceration tooth and nail. Pfaff excels at appreciating the distortionary dynamics imposed by federalism, the fragmentation of authority, the power of public sector prison unions, and how the system has several defects that encourage expansion.
That said, Pfaff is much better at showing what is not than at developing an account of what is. If prosecutors deserve more attention than we have given them, a point Pfaff argues convincingly, what explains why their power came to matter when it did? Why did prosecutors change so radically in a matter of years even as the structural incentives and design deficits mentioned above have always been present? If these are the key drivers of prison growth, why did local prosecutors across a number of locales decide to start filing more cases around exactly the same time? Did the opportunities for discretion shift or was it something about a changed bureaucratic culture, incentives, or expectations? And why did they go unchallenged?
Pfaff briefly suggests some potential reasons: an upsurge of people with past criminal records could have made prosecutors pursue more prison time and less likely to drop cases; the appalling lack of resources for public defenders could have tilted the playing field, making the system less adversarial; a substantial rise in the number of full-time prosecutors nationally, and especially in rural counties, could have increased local capacity to initiate charges; the growing political ambitions of prosecutors could have made getting tough more alluring. Pfaff does not strenuously test any of these theses, and that is a shortcoming of the work. Just as he wants us to get reforms right by honing in on the right causes, we should be equally precise about the causes of the substantial increase in prosecutorial aggressiveness. After all, an explanation that has to do with criminal records has very different policy implications than one that has to do with paltry resources for public defenders. This part of the narrative is hasty and undercooked, leaving the reader firmly convinced of the pivotal role prosecutors played in the construction of the carceral state but wondering why their influence expanded so mightily.
It is easy to see why Pfaff does not dig in. Studying prosecutors is an uphill climb because, as he reminds readers many times, almost no data exist on their decisions. For all their power, they remain a veritable “black box” in our criminal justice system. We have the Uniform Crime Reports, a survey of inmates, and several annual measures of every aspect of our criminal justice system, but no systematic data set of prosecutorial decisions or power: cases they dismiss or take forward, how many black prosecutors there are, the threatened charge verses the plea deal, variation across local offices, prosecutorial misconduct, or their relationship to other actors in the process. But to write a book about the crucial role prosecutors have played in the carceral state without deeper investigation of how they wield their discretion is to give readers a present but not allow us to open it. Pfaff could have interviewed a sample of current or past prosecutors, he could have examined prosecutor decisions in a few important localities. He could have examined low-incarceration counties to see if there is something distinctive or more accountable about their prosecutors or the incentives, institutional arrangements, and electoral pressures they face. He could have at least told his readers what we would need to have or amass to understand what to him is the most important component of our nation’s criminal justice system and ground zero of our nation’s biggest domestic policy failure. At the end of the book, we are sadly left with a thumbnail description of what prosecutors do, how they vary, and why they changed.
Another shortcoming that limits Pfaff’s book is his insistence that our prison system is sustained by those convicted of violent crimes. It may be true that drug offenders, parole violators, and other nonviolent offenders do not separately make up a large share of the prison population. However, together they make up a big chunk of prisoners and, more importantly, make up a very large portion of the “ever been in prison” population. More crucially, the incarcerated and formerly incarcerated account for only a sliver of Americans impacted by the carceral state. Setting aside family and friends of those who are incarcerated, there are many whose even glancing encounters with law enforcement lead to ruin: for example, Forman tell the story of Sandra Dozier, a FedEx driver who loses her job after she is pulled over on a pretextual stop and found to have a dime bag of marijuana. One could say that Pfaff promotes his own Standard Story, one that sees American punishment as only entailing formal incarceration, or rather imprisonment, and leaving aside the much larger, equally pernicious tentacles of the carceral state: police arrests; police stops with no further action; long probation; misdemeanor convictions; the large share of Americans passing through Rikers, Cook County Jail, and other county jails; and on and on.
What can be done? Pfaff urges us to think much more creatively about prison reform. Instead of focusing on states and changing statutes, our approach should be bottom-up, focusing on prosecutors and other actors who can change how many people enter prison. We need to target and regulate prosecutors’ behavior and control their ability to admit so many to prison, perhaps through plea guidelines of the sort that the New Jersey Supreme Court imposed, which limit the range of sentences that prosecutors can offer when making deals. We should shift the budgetary tab to counties or reward those that divert would-be prison admits to probation. As importantly, we should boost public defense so that it can truly be a challenge to prosecutorial aggressiveness. Pfaff also believes that allowing cities and suburbs to select their own prosecutors would undo a key defect of the system and ensure that prosecutors are “selected by people who directly experience both the gains from enforcement and its costs.” If we have learned anything from Forman’s Locking Up Our Own, however, we should anticipate that they would not necessarily choose differently.
Both Forman’s and Pfaff’s ambitions are to get us to see causes of criminal justice transformation over the last half century that have been submerged. Both rectify major blind spots in our knowledge about the causes of America’s carceral failure. Forman uncovers the importance of black lawmakers who shape local crime policies while Pfaff presses us to see the importance of the prosecutor in how those laws are implemented. And for both, getting the story right matters because reform efforts will be impeded unless we understand the complex political forces that gave rise to the vast and unprecedented expansion in punishment and surveillance.
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October 24, 2017
28 Min read time