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Rethinking Incarceration: An Interview with James Forman Jr.

James Forman Jr. is a professor at Yale Law School. He teaches and writes about criminal law policy, constitutional law, juvenile justice, incarceration, policing, and education policy, paying particular attention to the racial and socioeconomic inequality in America’s education and criminal justice systems. Forman Jr. is also the Pulitzer Prize winning author of Locking Up Our Own: Crime and Punishment in Black America and is co-founder of the Maya Angelou School, a charter school based in Washington, DC. 

*This interview was conducted in January of 2019.

Zach Stern: I know that you’ve raised a number of concerns with Michelle Alexander’s discussion of mass incarceration in The New Jim Crow and that one of your critiques revolves around the analogy’s relatively limited focus on drug crimes as opposed to violent crimes. What do you see as the danger in ignoring the issue of violence in discussing the causes and effects of mass incarceration? 

James Forman Jr.: The first point is just about the numbers. Now, the number of people that are in state prison in this country for marijuana cases is one percent and the percentage of people that are in there for drug offenses is 15 percent. These cases make a difference and nobody should be in prison for those offenses in my view, but if we just focus on drug offenses, we’re not talking about the majority of people in prison. Number two, focusing on violence versus nonviolence oversimplifies the distinctions within what we classify as violent crime. When most people hear violence, they assume rape and murder. If I say to you, ‘you should go see that movie’ and you ask me whether it’s violent and I tell you that it is because there’s a scene where a guy is shopping with a stolen credit card and the cashier realizes that he’s using a stolen card and calls him back but he runs out of the store with the goods in his arms and pushes a security guard on the way out, you’d probably be confused. But under the laws of all 50 states that would be robbery, which is classified as a violent crime. The point I’m making is that the way our statutes define violent is much broader than most people know. So talking violent versus nonviolent scares people and hides an immense amount of variation, individuality, and humanity. I want to focus on individual human circumstances, so I almost never use that distinction and I want us to get rid of it as much as we can in our vocabulary. 

ZS: In terms of how we handle violent crime, do you draw a line where some offenders need to go to prison or be incapacitated in some way while others might be good candidates for diversion programs (programs outside of traditional prison aimed at rehabilitation), or do you not want to limit the implementation of alternatives to incarceration to certain classes of crimes? 

JF: I’d like to work toward a day where we don’t have crime or violent crime, and if we can’t get there, a day where it’s as rare as possible. I’d also like to work towards a day where the things we call prisons look dramatically different from what we call prisons today — much more humane institutions with more space, more greenery, less barbed wire, more education and job training, more mental health training, and with more dignity and humanity for how we treat people inside. I would say that for my lifetime and maybe for your lifetime and your children’s lifetime, there may have to be some people who are in prison for some period of time, but I would want it to be dramatically fewer than are there now — on an order of 10 percent of our current numbers or something like that. I would want them to be incapacitated in places like the ones I just described, and those sorts of prisons exist in parts of the world, especially in Europe and northern Europe. I want to work towards a world of no prison, but I also know that’s a long, long, long way from now. So in the meantime, I want to shrink the number of people incarcerated and make sure that those who are incapacitated are treated so differently from how we treat people now that you might not even call that thing a prison. 

ZS: Moving forward with your discussion of The New Jim Crow, you also talk about how it obscures the effects of mass incarceration on other demographics like whites and Latinos. What do you see as the value in centering on the experience of Black Americans? What do you see as the danger in obscuring the effect of mass incarceration on these other demographics? 

JS: We need to have a way of talking about the issue that simultaneously helps us see the racial disparity in mass incarceration but also allows room for us to see how broad this issue has become and how many people have been caught up in this system. There’s a very rich literature out there now that has documented the racism and racial disparities present in our criminal system, and it’s crucial that we never lose sight of that. The New Jim Crow is so powerful because it has given people a vocabulary for understanding these racial disparities — it’s galvanizing people. And the title of the book was potentially the most effective thing about it. The very thing that I say has its limitations is also by far its greatest strength. When I wrote my piece criticizing it, I didn’t know that it would become a Bible for the movement. I was an academic responding to another book out there, but that was before I realized what it would do for people. If I were writing now, I wouldn’t write that same piece even though I do believe a lot of the things that I said. At the same time, prison populations can be disproportionately Black and Latino and still be plenty white. In Connecticut, for example, the prison population is 40 percent white. When I tell people that, they’re surprised. By some estimates, 50 percent of people in the country have an immediate or extended family member who has been incarcerated. That’s extraordinary. This is no criticism of The New Jim Crow, but what we don’t have is a term that all of those incarcerated white people can grasp onto that helps them understand their place. They don’t have anything to point to that’s analogous to the new Jim Crow for black prisoners. The New Jim Crow is so important because it’s allowed communities of incarcerated black people to have a way of describing what happened to them other than just “you should shut up and be sorry for the bad choices you’ve made,” but for white prisoners and their families, that’s still how they feel. That’s not Michelle Alexander’s fault — somebody else now needs to try to help us develop that language. 

ZS: Do you think class has any potential to create that language for poorer white prisoners? 

JF: I think that’s the pathway. The statistics certainly back it up, but it’s challenging because it’s been very hard in this country to develop a robust class-based analysis for any social problem, including mass incarceration. We don’t have great data on the class background of people who are incarcerated, but the best number we have is about educational attainment rate, and for both Black and white prisoners, the prison population is overwhelmingly concentrated among people that dropped out of high school. 

ZS: Shifting gears a little bit, I know you’ve done a lot of work on education, both in prisons and for released juvenile offenders. How do you think your work in the Maya Angelou Academy reflects the impact of education as both a preventative measure and a response to crime? 

JF: I think the research here is just overwhelming. The Rand Corporation has studied the impact of education on people who are in prison and they’ve found that for every dollar that we invest in education for people behind bars, as a society we get five dollars in return because the recidivism rates go down and employment rates go up. That’s kind of obvious if you think about it — if you provide people in education, they’re more likely to be able to get a job and they’re less likely to commit a crime when they get out. 

There have been lots of similar studies at the juvenile level, which is where the Maya Angelou Academy work has been. What we see is that overwhelmingly, the kids that we work with have not had access to adequate education. That’s one of the things that has caused them to give up hope. It’s not the only thing — there’s often been tremendous trauma that people have experienced for which they receive little to no treatment and lots of addiction and mental illness in the family. But education can be very liberatory. It allows people to see a future that’s different from their past and their present. At the juvenile level there’s a legal requirement to provide an education, but the problem is that in most places, that requirement is met in the most minimal way. The question is: how do we take that obligation and make it robust? How do we take that education and make it quality? How do we make it the kind of education that you would want for your loved one? That’s the challenge.

ZS: Do you see culture shift in addition to policy as an important element of that reform?

JF: We have a series of narratives that we use to try to justify our prison system; the idea that the people in it are other, that they’re monsters, that they’ve given up any claim to society’s caring about them, and the idea that prison works. These are all stories that are used to justify the system we have now. They’re not true, so the key is displacing them. The last narrative that we have to displace is the idea that there is no other way — that our system might be terrible, but that it has to be this way. That’s a really hard one to displace, but that’s what schools like the Maya Angelou Academy are trying to do. Every time we bring visitors in, they say “I can’t believe you’re teaching Shakespeare in a prison,” but kids love it and it helps them imagine themselves as intellectuals. Kids know when you’re giving them something that’s to a high standard. They might not necessarily know who Shakespeare is, but they know this is what kids in good schools are getting. That’s the change that has to be made — the idea that we can do it differently, that it doesn’t have to be this way. 

*This interview has been edited for length and clarity.