Wednesday, August 15, 2018




Excerpted from: Darren Lenard Hutchinson, Who Locked Us Up? Examining the Social Meaning of Black Punitiveness: Locking up Our Own: Crime and Punishment in Black America: by James Forman, Jr. Farrar, Straus and Giroux, 2017, 127 Yale Law Journal 238 (June, 2018) (Book Review) (347 Footnotes) (Full Document)


Darren Lenard HutchinsonThe precipitous rise of incarceration in the United States has become a central focus of contemporary political and legal debates. 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. Prosecutors also wielded their broad discretion to bring more serious charges against the average defendant and secure longer sentences. The impact of these punitive measures has been quite stark. Over two million Americans are now incarcerated in federal, state, and local penal institutions, and the rate of incarceration has increased 400 percent over the last forty years. Presently, the United States has the highest incarceration rate of all developed nations.

Commentators attribute these exacting anticrime policies that caused mass incarceration to numerous factors, including sensationalized media coverage of crimes and public opinion favoring stricter punishment. Many scholars also contend that mass incarceration contributed to structural racial inequality. Citing the disparate and detrimental impact of aggressive policing and incarceration on communities of color, these scholars argue that contemporary criminal law and enforcement 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. Moreover, while poverty explains some racial disparities associated with policing and incarceration, studies that control for socioeconomic status find that race influences length of sentence and defendants' access to pretrial diversion. Furthermore, because historical and ongoing racism contributes to high rates of poverty among people of color, class-based explanations for racial inequality still implicate racial discrimination.

Today, the contention that criminal law and enforcement subordinate people of color and reinforce racial hierarchy is widely accepted in the academic literature. 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. 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. 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, denial of political rights, economic deprivation, loss of educational opportunity, and the infliction of physical and emotional trauma.

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. 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. 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, uncovers a “neglected story” 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. 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.

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. 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. 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. While blacks often favored a mixture of punitive and preventive measures, political factors made punitive policies far more attractive and easier to implement.

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. 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. 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 reader might find between his observations and antiracist critiques of U.S. criminal law and enforcement. First, black support for aggressive criminal policies could stem in part from racial stereotypes and negative in-group preferences among blacks that derive from pervasive antiblack stereotypes. Second, although Forman's title suggests that Locking Up Our Own explores “crime and punishment in black America,” his research is geographically limited: it focuses almost exclusively on historical moments among black Washingtonians. Washington, D.C., however, represents a fairly unique site of black political power. As such, even if black Washingtonians had the political power to enact pro-carceral policies, black residents in most other places did not. Third, while Forman carefully analyzes punitiveness among blacks in Washington, D.C., he misses an opportunity to situate his analysis within a comparative framework. Although blacks became more punitive as violent crime increased during the latter part of the twentieth century, punitive attitudes among blacks always remained much lower than corresponding perspectives among whites. Furthermore, while scholars have linked blacks' punitiveness to their exposure to criminality, numerous studies indicate that white punitiveness typically stems from racial resentment. Also, many studies find that blacks are less punitive than whites because they do not trust law enforcement and believe that the U.S. legal system discriminates against blacks. These additional considerations provide a complementary framework for contextualizing Forman's important research. After attending to these primary concerns, this Review analyzes the possibility of implementing the type of reforms that Forman advocates, namely the development of more merciful approaches to criminality. While Forman makes a persuasive case for departing from the current state of affairs, substantial political and social constraints-- including racism, punitive sentiment, and conservative political ideology--will impede the implementation of the reforms he advocates.

This Review proceeds in three Parts.

Part I describes the principal arguments and conclusions Forman makes in Locking Up Our Own. It also examines the positive contributions Forman's research brings to legal scholarship regarding race and crime.

Part II, the heart of the Review, considers the implications of Forman's research and attempts to reconcile his conclusions with antiracist literature.

Part III examines the possibility of enacting the criminal law reforms that Forman advocates. While Forman urges policymakers and reformers to discard the harsh punitive approaches that gave rise to mass incarceration and to embrace mercy and forgiveness, the current political climate might make such a shift in legal culture difficult. That being said, state democratic and judicial processes and federal litigation could lead to some reforms. Proponents of criminal law and enforcement reform must utilize multidimensional mobilization strategies--involving courts, legislatures, executives, social movement organizations, and media--in order to accomplish the types of policy changes that Forman proposes.

. . .

Forman's research is challenging, but he has shifted the dialogue on race and U.S. crime policy in a better direction. Forman is primarily concerned with blacks' fear of crime and their punitive response. Although Forman recognizes the pervasive racism within U.S. criminal law and enforcement, he has chosen to give voice to blacks, particularly blacks who are vulnerable to criminal conduct because they are locked in poverty. Forman's attention to their struggle is just as important to racial justice as a focus on white supremacy. These discussions, however, are not mutually exclusive.

Using Forman's powerful work as a point of departure, this Review argues that white supremacy could influence black punitive attitudes. Although many blacks Forman analyzes framed their support of punitive measures in racial equality terms, social psychology research tells us to look beneath the surface of stated purposes, because implicit bias and psychologically based intergroup dynamics arising from SDO and RWA likely impact human behavior substantially. This Review seeks to join a conversation on race and crime made richer by Forman's contributions. As the United States continues to reexamine and debate punitive policy, it will become more compelling that other scholars enter this dialogue as well.

Associate Dean for Faculty Development, Stephen C. O'Connell Chair, and Professor of Law at the University of Florida Levin College of Law. J.D., Yale Law School; B.A., University of Pennsylvania.

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