James Forman ’88, Clinical Professor of Law at Yale Law School, talks to Brown Political Review’s Annette Lopez. Professor Forman teaches and writes in the areas of criminal procedure and criminal law, constitutional law, juvenile justice and education law.
Brown Political Review: How did your time at Brown influence your decision to work in the law?
James Forman: At Brown, I became very interested in social change and in institutions of power, and how the government and the legal system impacted the lives of people. I did things like studying the history of the Civil Rights Movement, comparing race relations and civil rights movements around the world. One of the things that became clear was that the law was a very powerful force in American society for good or for ill, and courts could play a prominent role for good or for ill. So I became interested in law as a way of thinking about how could we make ours a more just society, a more fair society, a society that was more equal. Brown introduced me to those concepts.
BPR: What were the main issues on campus when you attended Yale Law in the 90s?
Forman: The main issue that affected us in law school was the whole question of police brutality. I was in law school when the Rodney King Riots happened (the initial beating and then the verdict and the riots). That was the event and the set of issues that were most on the minds of us as students, particularly students of color, or students who were interested in social justice issues, who really couldn’t get away from that issue.
BPR: Could you speak a little about your time at the DC Public Defenders?
Forman: I had originally gone to law school thinking I was going to be a civil rights lawyer, but when I was working for a law clerk I began to see the criminal justice system and the unfairness in the system as a civil rights issue. I decided to become a public defender because I felt that this was the civil rights issue of my generation, and everything at PDS made me glad that I had made that decision. It’s an office full of people who are completely passionate about their work, who are committed to their clients, who are committed to their cause, who are committed to one another.
I remember when my mom, who was in the civil rights movement in the 1960s, came and visited me at PDS at my first year. She walked around the building, and it was crumbling then, and everyone had revolutionary posters on the wall. And my mom said, “This reminds me of, it feels like a movement office, it feels like a 1960’s-style office.” So it did have that feeling of, “We’re representing people, we’re fighting for a cause that the larger system doesn’t see, doesn’t believe in, doesn’t understand, we’re fighting for those people that everyone else just wants to write off and in many cases, just wants to bury and remove far away from us.” There’s something that’s really inspiring about picking a fight that you care about, that you’re passionate about, with a group of people who feels the same way, and that’s why that was such an amazing job.
BPR: A lot of legal scholarship focuses on abstract ideas and theories, but your work focuses on real problems. You’ve written a lot about prisons, mass incarceration, juvenile justice and education, and policing. Why did you take that particular approach to scholarship?
Forman: I’m interested in a group of people, a set of communities. In other words, I’m interested in people who are struggling, poor people, working class people, minorities: particularly in this post-civil rights movement era, in the parts of the African American community or the parts of minority communities, more generally, who haven’t benefited from the amazing doors that have opened. I was able to benefit from that: I went to Brown, I went to Yale, I worked on the Supreme Court. My father grew up poor, eating dirt in the Depression in Mississippi, because that actually filled his belly, and there’s a generation of black people who fought incredibly hard so that their children and their grandchildren wouldn’t have to live lives like that. And now there’s a whole group of people like me, those of us that now have walked through the doors that [the older generation] opened, who didn’t have to fight to break down the barriers of Jim Crow, who are able to live lives that were unimaginable to our parents and grandparents.
I look at that world and I think, what am I going to do to try and make it more just and more equal and more fair? I look at poverty. I look at a criminal justice system that’s completely over-involved in peoples’ lives, in a country that has 5% of the world’s population, and 25% of its prisoners. I look at that world and I think, what am I going to do to try and make it more just and more equal and more fair? So those are the issues that took me to the Public Defenders Office, those are the issues that make me want to start an alternative school for kids in the juvenile justice system. I didn’t stop being interested in those things once I become a law school professor. I would have to quit, or do something else, if I were not able to write about the relationship between legal structures and power and government policy and those communities. So I don’t really see any other choice. I cannot imagine writing about anything else.
BPR: Are there any new projects you’re working on?
Forman: I’m writing a book that looks at scholarship that impacts the enormous prison system, and this growing criminal justice system, but there actually hasn’t been very much that looks at the causes on how we got here. So I’m looking at the evolution of the criminal justice system in the United States starting in the 1960s, but my real focus is the 1970s, 80s, and early 90s, which is when we built this system that we have now. I’m writing about the causes of mass incarceration, and about African Americans as political agents. When we read about black people, especially in the criminal justice system, we see more generally, is people who are “acted upon,” as criminal defendants or victims of crime. But there’s very little out there that looks at black police officers, black corrections officials, black prosecutors, black voters, black mayors, black legislators.
Since the early 1960s, our prison system has grown by 700%. During that same period of time, the number of black elected officials in our country has grown 800%, so how is it that alongside this growing black political class, and black political empowerment on one hand, we have this ever increasing prison system? What’s the role that African Americans have played in developing this criminal justice system? So that’s the story that I’m telling in this book. It’s a historical book, but it’s also a book that makes an argument about law and the legal process.
BPR: What’s your take on Judge Scheindlin’s decision in Floyd v. City of New York on stop-and-frisk?
Forman: Stop-and-frisk is a complicated set of issues, but here are a few things we need to think about when we think about the practice, and when we think about the decision. The NYPD has prided itself on reducing crime in New York City. And so one question is, to what extent has stop-and-frisk contributed to the reduction of crime? The story is much more complicated than Ray Kelly or Michael Bloomberg would suggest. Some things that people need to keep in mind when they think about it are, first of all, the rapid explosion of this very aggressive use of stop-and-frisk, which of course is constitutionally approved tactic. The growth really started about 2003 and 2004, when we see this really almost exponential increase in its frequency in New York. The important thing to know is that crime had begun to decline in New York more than a decade before they began to implement this policy. And the other fact that’s important to keep in mind is that over the last year and a half, there’s been a dramatic decrease in the use of stop-and-frisk – in part because the law suit was filed, but here’s the other thing: crime has continued to decline, even as the policy has been curtailed. The other thing to know is that cities who don’t use this policy have seen crime decline. So it’s hard to make the case that the aggressive use of stop-and-frisk in the way that New York is practicing it is essential to driving down crime.
And we’ve just been talking about the benefits, how critical this policy is to public safety, but we also have the question of cost. The real problem I have with stop-and-frisk is that in essence, what Kelley and Bloomberg have done is say, “Look, black men commit a disproportionate amount of crime in New York, and therefore it makes sense for us to stop them at these disproportionate rates.” But when you think about costs, the real question isn’t what percentage of overall crime do blacks commit. The real question is, on any given day if you look at a particular African American man who’s standing out on the street, is that person more likely than not to be involved in criminal behavior? And the answer there is no, the overwhelming majority of black men walking around New York City on any given day are not breaking the law. They’re not carrying guns or drugs, and yet, they’re being stopped in these really disproportionate numbers. The toll that takes, and what they’re telling black New Yorkers, is that because your group is more likely than other groups to be involved in criminal activity, then each of you pays this tax. Because other people, who are also black men, commit crimes at higher numbers, we are going to subject you to this.
And here’s the thing, we can define groups otherwise. For example, let’s take race out of it. Men commit an overwhelming amount of crime in New York, and everywhere. And Kelly and Bloomberg could say, “We are going to stop all men, because all men commit crimes disproportionately.” Of course they don’t do that. But because of how crime has become so racialized in our consciousness, as soon as you say black men and crime, a lot of peoples’ analytical abilities just fail. And I think that’s part of what’s happened in New York.
The final thing I’ll say about stop-and-frisk, and this is what I wrote about in my op-ed in the New York Times, is that there are other alternatives to policing. It would be a hard question if it were the case that this was the only way to save black lives, and the cost of saving black lives was to lock up other black people. That would be a profoundly challenging moral question, and I don’t know where I would come down on it. But it’s not the only way. So one of the things that my student and I wrote about in the piece was this notion of focused deterrence, because stop-and-frisk is unfocused deterrence. It’s basically saying we’re going to keep black men from taking guns out on the street by letting any black people be stopped. Well, that’s very unfocused, because that means that you’re focusing your attention only on black men, of whom the overwhelming majority is innocent. But what focused deterrence says is, let’s actually try to identify the people based on real behavior that they’ve engaged in, not the color of their skin, their prior records, the fact that they’ve been arrested, that they’re a member of this particular gang or crew. And let’s target our attention on them. Let’s send them a moral message that says that they’re destroying their community, let’s send a law enforcement message that says we’re watching you, and let’s send them a social work message that says there are other programs available for them to choose another life. I think this idea has tremendous promise. My point on this is that given the cost of stop-and-frisk, we need to explore all these other options that are less costly, less painful, less racially damaging, less demoralizing to the minority community, before we choose this one, incredibly invasive, toxic method of policing.
BPR: What are the most important issues our criminal justice system is facing right now?
Forman: The biggest issue we’re facing is that we have way too many in prison, and too many under criminal justice supervision. We are in a system at a breaking point. And we talked about this earlier, but the notion that the wealthiest country in the world, the most powerful, has 5% of the world’s population, and 25% of its prisoners, that right there tells you that something is wrong. And then we have to start figuring out what it is.
There are two or three big-picture criminal justice reform issues we have to think about. One is new approaches to enforcement of drug laws. For example, I run a clinic called Innovations in Policing, and one of the things we’ve done is look at models around the country that are trying to do things differently. One of the models, in terms of drug law reform, that we looked at is Seattle. There’s a program there called LEAD (Law Enforcement Assisted Diversion), which empowers police officers, when they are confronting somebody whom they otherwise would arrest for a low level drug offense, to refer that person directly to drug treatment as an alternative to processing them through the criminal justice system.
One of my other big areas of focus is that we can’t only talk about the drug laws. There’s that myth perpetuated by opponents of mass incarceration that somehow, if we just fix the war on drugs, that this whole problem will be taken care of. But the number just don’t support that. One of the areas we really have to focus on is violence, for two reasons: one, because it’s a real driver of this enormous prison system that we’ve had, and two, because it is doing incredible damage to the same communities that are being harmed by mass incarceration. So if you’re going to talk about mass incarceration, and you’re not going to really get down and dirty on dealing with issues of violence, then you’re not actually an authentic representative of the pain these communities are suffering.
That’s actually one of the reasons why I’m drawn to programs like the focus deterrence model that we just talked about, because you can use it for drug law enforcement, but it also can be used in certain communities on violent crime, specifically. So again, one of my big pushes in the criminal justice world is to say we need to have a progressive anti-violence agenda, and our whole agenda cannot only be about root causes. We need to talk about racism, and poverty, and having better health care, we can actually never stop talking about those topics. But we also have to have a criminal justice law enforcement agenda that’s infused with progressive values, and so that’s where focused deterrence is an example. I also think new approaches to policing, alternatives to stop-and-frisk that we’ve talked about, are big areas.
BPR: What’s your take on the Department of Justice mandating changes that would eradicate mandatory minimum sentences for some drug-related crimes?
Forman: I got the impression that whomever was likely to be affected by these proposed reforms was a relatively small number of people. So if we imagine the whole universe of people that are facing the mandatory minimum for drug offenses, and then assume they’re talking about taking the most sympathetic 5 or 10% of that group, then that makes sense. In fact, I think there’s a larger group who are facing mandatory minimums and shouldn’t be, and that’s mainly because I just am not a fan of mandatory minimums. The judges in our federal system, or in our state systems, have the ability to take into consideration the totality of the circumstances in individual cases. I think people are often going to get pretty long sentences even without a mandatory minimum underneath it, and really what the mandatory minimum does is take power and discretion that judges used to have and transfers it to the prosecutors office. Between prosecutors and judges, I would rather have judges have that discretion, that authority to make the decision in the individual case. I think that judges are institutionally more used to looking at the whole picture, whereas the prosecutors in our current system overwhelmingly think about things from the perspective of law enforcement: the victim, the rights of the victim. And so they just generally tend to push towards greater harshness, on average. So in general, it’s a good first step, but I’d want it to go further.
When the wealthiest country in the world has the most prisoners in the world, everybody in the system needs to be thinking about what can we do to reduce the size of our prison population. I would want probation officers, judges, prosecutors, defenders, parole, and further down the line to be thinking about this question. I don’t want to say that prosecutors shouldn’t be thinking about it, but that what a mandatory minimum does, is say that the judge no longer has the discretion to give a sentence below that number. So when a prosecutor files those charges, if the person is convicted of pleads guilty to an offense that has that mandatory, then it’s game over –it doesn’t matter how sympathetic you are, it doesn’t matter if it was a big conspiracy that had a lot of people involved, but you were a tiny little player that did the smallest thing: you can be liable for the whole conspiracy. That’s where we are now in our legal system, with the interplay of conspiracy laws and these mandatory minimums. So as a result, there’s case after case after case where it gets to the judge.
BPR: Why are juvenile justice and education all of a sudden in the news?
Forman: Crime started going up in the United States in the late 1960s, and it went up in the ‘70s, ‘80s, and early ‘90s. And in the late ‘80s and early ‘90s, we had the crack cocaine era, with incredibly high rates of violence and disorder. And so that 25 year period of crime increase traumatized people. And there was a total unwillingness, in the context of that kind of fear and anger, to consider alternatives to incarceration, treating juveniles as kids instead of putting them in the adult system. Then you have another 10-15 years where crime starts to decline, starting in the mid-‘90s, but people were still traumatized from those earlier years. And it’s not like crime goes away, it’s just declining. And people are suffering that trauma every time you put forward some more progressive approach, they say, “Don’t you remember the bad old days?” And all you can do is double down on this policy. Now, crime has been declining, and consistently, for long enough that people can begin to pay attention to the consequences of what we’ve done in the past 30 or 40 years in response to what was a very real problem. That has opened up a little bit of space for people to ask some hard questions, like, “Has the pendulum swung too far?”
BPR: Recently, Virginia implemented a new system to restore voting rights automatically to nonviolent ex-felons who have paid their debt to society. However, in most states, the restoration of voting rights are highly circumstantial. For example, in Kentucky, only the governor can reinstate such civil rights.
Where do you stand on restoring voting rights to ex-felons who have paid their debt to society? Do you think all states should follow in the footsteps of Virginia and restore voting rights automatically to nonviolent ex-felons?
Forman: This notion of removing people permanently and forever from the political community strikes me as deeply counterproductive, and bizarre on some level. People get convicted, they serve their sentence, and then they come back to communities. And what we say to them is, “Now it’s your time to go back to society and to reintegrate yourself into society, and you need to live by the rules and you need to get a job.” And the statement we should be making is, “You are one of us, you’re not an alien, you’re not from another planet, you’re not even from another country. You are a citizen, you never lost your citizenship, and now you’re coming back to the community. And we want you to be fully invested in every way – but you can’t do this thing that is fundamental to American citizenship.”
That sends a message to people that they are forever an outsider, and that’s not a message we want to send: not for their benefit, and not for our benefit. If we don’t think they can be part of the nation, then they should remain incarcerated. Of course there are some restrictions, like they may have to report to a parole officer, or they may have to take drug tests. But I don’t think it’s plausible that we need to deny them access to the ballot.