CRIMINAL JUSTICE AND THE MATTERING OF LIVES.

• Author: Tuerkheimer, Deborah
• Position: Book review

LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK AMERICA. By James Forman Jr. New York: Farrar, Straus, and Giroux. 2017. P. 239. $27.

INTRODUCTION

These are confusing times for criminal justice reformers. Although opposition to mass incarceration runs deep and wide, (1) the conventional wisdom advances solutions that are woefully inadequate. (2) The state-by-state picture presents in similarly ambiguous fashion, with several jurisdictions moving to adopt less draconian punishment regimes, (3) while elsewhere, harsher sentences gain ground. (4) And just as local prosecutors who embrace progressive platforms of change are winning election in increasing numbers, (5) Jeff Sessions, our chief law enforcement officer, promises a return to the tough-on-crime policies of old. (6) All told, the current landscape is characterized by considerable flux--meaning that this is a pivotal juncture for criminal justice reform. In order to move forward, the ambition of a newly reconstructed justice system must be defined.

Against this backdrop we can fully appreciate the contribution of James Forman's (7) extraordinary book, Locking Up Our Own: Crime and Punishment in Black America. Forman tells the gripping origin story of increasingly punitive responses to crime in Washington, D.C., while relating these particulars to corresponding trends in urban centers across the nation. Forman's story focuses on African American actors--politicians, judges, prosecutors, police officers, and ordinary citizens--normally left out of standard accounts of the growth of the carceral state. Placing their lives front and center, Forman compassionately chronicles the devastation inflicted by crime, and then by punishment, on black, largely poor communities. This is a masterful recounting of how the very communities eventually ravaged by mass incarceration possessed a stake--an understandable, legitimate stake--in catalyzing a criminal justice response to crimes against them, and how this effort resulted in terrible unintended consequences.

Part I summarizes Forman's depiction of this tragedy and its connection to "a central paradox of the African American experience: the simultaneous over- and under-policing of crime" (p. 35). Without giving short shrift to either dimension of this paradox, Forman lays bare the ways in which black community members' experiences of crime during the 1970s and '80s were inexorably linked to structural inequalities--primarily race and class. As Forman demonstrates, these marginalized citizens were undervalued; they endured too little by way of a state response to their crime victimization, along with too much of a state response when it came to their punishment for crime perpetration.

Forman's tale resonates with a long, shameful history of states failing to protect vulnerable populations from violence, placing in stark relief the "mattering" of certain lives more than others. Since Reconstruction, subordinated communities have endeavored to harness the criminal justice system toward recognition that their lives have worth. These efforts persist to this day, making Forman's insights regarding the effects of underenforcement especially salient to ongoing contests over whose lives matter.

Part II explores three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. These case studies in the overlook of harm reveal a close nexus between criminal law enforcement and the relative valuation of communities, including the individuals that comprise them. Over time, claims for protection on behalf of these groups have generated moves to ratchet up criminal law sanctions. Yet, as has become terribly clear, incarceration and its effects reflect and perpetuate inequality--meaning that increased sanctions are the wrong default outlet for equality-based demands on the state by crime victims. Some outlet is essential. Yet an insistence on the redress of violence against vulnerable populations must be reconciled with the need to curb the overincarceration of vulnerable populations.

Part III offers a conceptual framework for future reform efforts that, by centering structural inequality, aspires to concurrently rectify the over- and underenforcement of crime highlighted by Forman's historical account. I will refer to this inversion of the traditional criminal justice paradigm as an antisubordination approach to criminal justice--one that expressly contemplates the complex array of societal forces that construct the meaning of crime and punishment, from the perspectives of both victim and perpetrator. An antisubordination frame not only makes salient the interplay between crime and entrenched social inequalities; (8) it also presses for a state response that alleviates, rather than exacerbates, the disempowerment of vulnerable populations.

This approach is very much in keeping with urgent calls to decarcerate and scale back the collateral consequences of conviction. (9) But by reckoning with the need to correct for underenforcement as well, the suggested framework seeks to refine and enrich conventional overenforcement critiques. I argue that this move has real consequences, not just for theory, but also for work on the ground, where legislatures and--most importantly--prosecutors can apply antisubordination principles to advance criminal justice.

1. THE PARADOX OF OVER- AND UNDERENFORCEMENT: LESSONS FROM THE PAST

   Forman's inquiry into how a majority-black population in Washington, D.C., came to incarcerate "so many of its own" (p. 9) begins with a revealing personal anecdote. Forman, who worked as a public defender in the District, was seeking probation for a fifteen-year-old boy who had pleaded guilty to a gun possession charge. At sentencing, the long-serving judge, an African American man, delivered a lecture for which he had become somewhat famous, declaring to the adolescent: "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. No, young man, that was not his dream. That was not his dream at all" (p. 4). The judge ordered Forman's client to serve six months in juvenile detention, where he would join an incarcerated population almost entirely comprised of African American men and boys (p. 6).

   Like the judge, everyone in the courtroom that day, including the prosecutor, was black, as were the police chief, the mayor, the chief prosecutor, and the judge for whom the courthouse building was named; so too were most of the jurors and the lawmakers themselves (pp. 8-9). This was emblematic of a larger pattern: in the District of Columbia, over the course of four decades, blacks played a largely overlooked role in shaping the criminal justice system (p. 10). As Forman notes, "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" (p. 11). By chronicling the influence of black leaders on the tough-on-crime movement, Forman manages to explain the appeal of punitive policies that, with the passage of time, have wreaked particular havoc on low-income African American communities. (10)

   Forman's account begins in the mid-1970s, when a white D.C. councilman by the name of David Clarke mounted an effort to decriminalize marijuana possession (pp. 20-25). But despite marshaling powerful evidence of the racially discriminatory impact of marijuana laws, Clarke was unsuccessful in his attempt at reform (pp. 20-22, 43). The opposition to decriminalization was led by Douglas Moore, an African American councilman who had "campaigned as a champion of the city's black poor, promoting self-determination and control of local institutions and actively opposing efforts by white outsiders to tell D.C.'s blacks how to govern themselves" (pp. 34-35). With a heroin epidemic that began in the 1960s scourging the city's poor black neighborhoods, Moore argued that marijuana decriminalization "would only hinder blacks' attempt to achieve equality. In his eyes, marijuana use was both a symptom of racial oppression ... and, just as important, a cause" (p. 36).

   Moore's view--which, again, later prevailed--was consistent with the 1968 Kerner Commission findings "that many blacks believed 'the police maintain[ed] a much less rigorous standard of law enforcement in the ghetto, tolerating illegal activities like drug addiction, prostitution, and street violence that they would not tolerate elsewhere.'" (11) One of the many reasons for the defeat of marijuana decriminalization was the sense "among the black community's most dogged defenders" (p. 44) that if they did not protect themselves against growing drug addiction and rising crime rates, no one would.

   African Americans bore the brunt of a crime wave sweeping D.C. and much of the nation (p. 50). Handguns made the crisis lethal, threatening black communities--especially the poor among them--in ways that made the turn to criminal law irresistible (p. 50). Anger at the toll of gun violence, alongside a sense that judges and prosecutors were too rarely imposing jail time or enough of it, generated a push, not only for gun control measures, but also for mandatory minimum sentences for gun infractions (pp. 60-61). As the city's largest black newspaper editorialized, in order to repair "an environment of fear and fright," the courts "should take harsher views on convicted offenders and mete out tough and longtime sentences." (12)

   When the city passed its gun control law in 1975, black leaders were able to claim "a civil rights triumph," having finally made good on a promise to "provide police protection to a community so long denied it" (p. 73). Over a decade earlier, civil rights icon Ella Baker had proclaimed, "Until the killing of black men, black mothers' sons, becomes as important to the rest of the country as the...