It is difficult to criticise a bible, particularly one written with as much insight, rhetorical power and moral authority as The New Jim Crow. When James Forman, a law professor at Yale and the son of a prominent civil rights activist, first presented his criticisms of Alexander’s argument, colleagues nervously asked him why he was ‘critiquing a point of view that is so aligned with your own’. He agreed with Alexander that mass incarceration had turned convicted criminals into members of a stigmatised caste, condemned to second-class citizenship. He also agreed that one of the most destructive effects of mass incarceration was to lead the wider society to see poor black men as potential threats, social outcasts whose rights could be violated with impunity. But he believed that Alexander’s thesis obscured ‘some important truths’. One of them, he wrote in a 2012 paper entitled ‘Beyond the New Jim Crow’, is that mass incarceration is confined to ‘the poorest, least educated segments’ of black communities, much as it is among whites, still the largest group in US prisons. It could not therefore be said to ‘define’ the black condition, in the way that Jim Crow, whose restrictions affected all black citizens in the South, once did.
Another gap in what he called ‘the New Jim Crow thesis’ was the importance of violent crime, as opposed to non-violent drug offences, in the rise of mass incarceration. While Alexander insisted that ‘nothing has contributed more to the systematic mass incarceration of people of colour in the United States than the War on Drugs,’ Forman pointed out that only 25 per cent of America’s 2.3 million prisoners are drug offenders. Even if all of them were released tomorrow, America would still have the largest prison system in the world, and many of its inmates would be black and Latino men convicted of violent crimes. Nixon’s war on crime may have been cynical, but he wasn’t lying about the crimewave itself: reported street crime quadrupled, and homicides doubled, between 1959 and 1971. And as crime, particularly violent crime, surged in the inner city, so did black support for tough-on-crime policies, with the result that blacks were ‘actors in determining the policies that sustain mass incarceration in ways simply unimaginable to past generations’. This support went deeper than ‘complicity’, to borrow Alexander’s term; it often reflected a ‘pro-black’ concern for people living in neighbourhoods white police had neglected, precisely because whites didn’t live there. In fact, the incarceration rates in Washington, DC, the black-majority city where Forman worked as a public defender, were roughly equal to those in cities where black people had far less influence over sentencing policy. Racial bias alone could hardly explain why a ‘chocolate city’ like DC was locking up so many of its own.
Forman’s eloquent new book, Locking Up Our Own, is about the politics of race, crime and punishment in DC. A gritty, often revelatory work of local history, interspersed with tales of Forman’s experiences as a public defender, it is a much quieter book than The New Jim Crow, more sombre in tone and more modest in its aims: it is not the kind of book that inspires a movement. As in his paper on The New Jim Crow, Forman isn’t interested so much in debunking Alexander’s account as in supplying richer contingency, irony and complexity. Where she sees a clear political project driving the growth of the prison system, he sees a series of small steps that, together, created something monstrous and seemingly indestructible. To borrow the terminology used by historians of the Final Solution, he is a ‘functionalist’, while she is an ‘intentionalist’. Another difference between them is his belief that blacks helped to create this system, driven less by shamefaced ‘complicity’ than by a desire to protect other black lives. Washington’s citizens, activists and politicians chose to lock up their own, Forman argues, often with the best of intentions, and with consequences most would come to regret.
