Who Locked Us Up? Examining the Social Meaning of Black Punitiveness: 'Locking Up Our Own: Crime and Punishment in Black America'.

• Author: Hutchinson, Darren Lenard

BOOK REVIEW CONTENTS INTRODUCTION 2391 I. LOCKING UP OUR OWN: ARGUMENTS AND CONTRIBUTIONS 2398 A. Neglected Story: Black Punitiveness 2398 1. Antidrug Punitiveness 2400 2. Punitiveness Regarding Gun-Related Violence 2403 3. Aggressive Policing and Black Police Officers 2405 4. Black Judges and Prosecutors 2408 B. Toward Forgiveness and Mercy 2408 II. RACIAL NUANCES IN BLACK SUPPORT FOR AGGRESSIVE POLICING AND STRONG PUNITIVE MEASURES 2410 A. Social Psychology and Possible Explanations for Black Punitiveness 2413 1. Implicit Bias and Out-Group Preferences 2413 2. Social Dominance Orientation and Negative In-Group Attitudes 2418 3. Right-Wing Authoritarianism and Support for Law and Order Policies 2423 B. The Empirical Limits of Forman's Findings 2427 1. Washington, D.C. as an Exceptional Site of Black Political Power 2427 a. Blacks as a Political Minority in State Legislatures and Congress 2427 b. Blacks' Underrepresentation Among State Executives 2428 c. Blacks' Underrepresentation Among Judges 2430 2. Empirical Research on Blacks' Opinions Regarding Crime and Punishment 2431 a. Blacks, Legitimacy of Police, and Punishment 2431 b. Black Politicians, Crime, and Punishment 2433 c. Black Police Officers 2434 3. Black Prosecutors and Leniency 2436 4. Black Judges and Leniency 2437 III. TOWARDS A LESS PUNITIVE CRIMINAL JUSTICE SYSTEM 2439 A. States 2440 1. Prosecutors 2440 2. Legislatures and Governors 2441 3. Overcoming Punitive Sentiment and the Psychology of Racism 2442 B. Federal Government 2443 1. Presidential Politics 2443 2. Department of Justice 2444 3. Congress 2445 4. Federal Courts 2445 CONCLUSION 2446 INTRODUCTION

The precipitous rise of incarceration in the United States has become a central focus of contemporary political and legal debates. (1) In the 1970s, state and federal governments began enacting tough criminal law reforms, including the elimination of parole, mandatory minimum sentences, and enhanced sentences for certain offenders, including recidivists. (2) Prosecutors also wielded their broad discretion to bring more serious charges against the average defendant and secure longer sentences. (3) The impact of these punitive measures has been quite stark. Over two million Americans are now incarcerated in federal, state, and local penal institutions, (4) and the rate of incarceration has increased 400 percent over the last forty years. (5) Presently, the United States has the highest incarceration rate of all developed nations. (6)

Commentators attribute these exacting anticrime policies that caused mass incarceration to numerous factors, including sensationalized media coverage of crimes (7) and public opinion favoring stricter punishment. (8) Many scholars also contend that mass incarceration contributed to structural racial inequality. (9) Citing the disparate and detrimental impact of aggressive policing and incarceration on communities of color, these scholars argue that contemporary criminal law and enforcement (10) operate as mechanisms of racial subordination. Studies indicate that implicit and overt racism among jurors, voters, lawmakers, judges, prosecutors, police, and probation officers causes some of the racial inequities related to criminal law and enforcement. (11) Moreover, while poverty explains some racial disparities associated with policing and incarceration, (12) studies that control for socioeconomic status find that race influences length of sentence (13) and defendants' access to pretrial diversion. (14) Furthermore, because historical and ongoing racism contributes to high rates of poverty among people of color, (15) class-based explanations for racial inequality still implicate racial discrimination. (16)

Today, the contention that criminal law and enforcement subordinate people of color and reinforce racial hierarchy is widely accepted in the academic literature. (17) Perhaps the most prominent antisubordination criminal law scholar is Michelle Alexander, whose research links contemporary racial hierarchies seen in U.S. crime policy with historical practices that emerged during slavery, Reconstruction, and the Jim Crow era. (18) Before Alexander published her landmark work, however, scholars such as Dorothy Roberts had already observed that U.S. criminal law and enforcement facilitated racial subordination. (19) If, as these scholars contend, criminal law and enforcement function as sites of racial subordination, then these systems operate against blacks. In other words, mass incarceration and intense police surveillance are imposed upon--or done to--blacks. Indeed, U.S. crime policy reinforces racial oppression through many mechanisms rooted in historical racism, including coerced labor, (20) denial of political rights, (21) economic deprivation, (22) loss of educational opportunity, (23) and the infliction of physical and emotional trauma. (24)

The racial dimensions of U.S. criminal law and enforcement have inspired a new generation of activists to organize and contest abusive police conduct, mass incarceration, and other contemporary policies that disparately impact persons of color--particularly, blacks. (25) Academic research linking mass incarceration and racial subordination has informed the work of many of these younger racial justice activists--including members of the Black Lives Matter Movement. (26) Thus, the antisubordination theory of criminal law and enforcement presently has substantial currency among academics and activists.

James Forman, Jr.'s Pulitzer Prize-winning book, Locking Up Our Own: Crime and Punishment in Black America (27) uncovers a "neglected story" (28) that adds complexity to contemporary understandings of race and crime, including those antisubordination analyses that describe U.S. crime policy as an exercise of authority by whites over blacks. Forman complicates prevailing academic arguments regarding race and crime by demonstrating that many blacks supported, enacted, and administered policies that expanded the policing and incarceration of other blacks. Forman integrates personal narratives--an academic style popularized in critical race theory--with traditional analysis. (29) Drawing extensively from his own personal experiences as a public defender in Washington, D.C., qualitative studies, and, to a lesser extent, opinion polls, election data, and empirical research, Forman observes that increasing crime rates in the 1970s through 1990s caused many blacks to demand aggressive policing and longer punishments for criminals. (30)

Forman has three primary objectives. First, he aims to uncover a modern history of black punitiveness, which correlated with high crime rates and increased demand for tougher criminal law and enforcement policies among the general public. (31) This historical account is often obscured in literature that frames mass incarceration and police surveillance as systems imposed upon rather than created--at least in part--by blacks. Forman's research reveals that blacks exercised political power in ways that contributed to higher rates of incarceration and greater police monitoring of blacks. Second, Forman seeks to explain that black punitiveness resulted from concerns about accelerating criminality and drug addiction among blacks. (32) Fear of crime led black voters, legislators, prosecutors, and judges to embrace harsher criminal law and enforcement policies. They asserted that community empowerment depended upon sobriety and freedom from the instability caused by violence and other forms of criminality. Many blacks contended that strong sentencing laws and police practices would facilitate these goals. Third, Forman seeks to demonstrate that even as blacks demanded tougher sentencing and police surveillance, many of them also supported social welfare policies, such as education and job training programs, that could combat the root causes of criminality. (33) While blacks often favored a mixture of punitive and preventive measures, political factors made punitive policies far more attractive and easier to implement. (34)

Forman's research makes a compelling contribution to scholarship regarding race and crime. His analysis of black punitive sentiment advances academic research on the causes of mass incarceration and the influences of public attitudes towards crime and punishment. Forman's research will undoubtedly reshape conversations on race and criminality and spark engagement from many scholars in the field. Forman's work could prove particularly helpful in public discourse regarding the future direction of U.S. criminal law and enforcement. As Americans rethink the appropriateness of strict anticrime measures, it is important that scholars, politicians, and advocates have a comprehensive understanding of the origins of U.S. punitive sentiment. By offering a more complex analysis of punitive social policy, Forman's research will likely broaden the terms of public discourse regarding the reform of U.S. criminal law and enforcement.

Though compelling in several respects, Forman's research suffers from an important limitation: he does not thoroughly analyze the white supremacist dimensions of U.S. punitive sentiment, including punitiveness among blacks. While Forman does not devote much attention to white supremacy, he recognizes the centrality of racism in American criminal law and enforcement. (35) Nonetheless, insufficient analysis of racism leaves Forman's work vulnerable to the perception that he seeks to minimize the importance of white supremacy in the development of mass incarceration. Indeed, one legal scholar has already cited to Forman's research in order to debunk antiracist criticism of U.S. criminal law and enforcement. (36) Employing Forman's research to undermine antiracist legal theory, however, would distort the goals of his compelling project. To elaborate this point, this Review examines three important implications of Forman's research that should alleviate any tension a...