While male arrests are declining in New York City, more women are spending time in jail.
Female inmates look out of the Topo Chico prison in Monterrey, Mexico, Feb. 11, 2016. REUTERS

This weekend, a Nazi rally in Charlottesville, Va. spotlighted a battle over civil rights that has intensified during the presidency of Donald Trump. The rally came as civil rights activists have mounted an increasingly effective campaign asserting that America’s criminal justice system has become an inhumane instrument of racial oppression.

Criminal justice policy has long been a flashpoint in America’s civil rights debate -- and data show that people of color are disproportionately incarcerated. Many of today’s “tough on crime” policies that result in those incarceration rates emerged in the 1970s and 1980s. Critics of those policies have argued they were a product of a white backlash to the successes of the civil rights movement. But in a new podcast interview, James Forman, Jr. argues that the history of those policies is more complex.

Forman is a Yale Law professor, a former public defender and the son of the late civil rights leader James Forman. In his new book called “Locking Up Our Own,” he asserts that the current criminal justice system emerged from both white conservative demagogues and from African American leaders who were desperate to protect the gains of the civil rights movement.

Subscribers to the podcast can click here to listen to the full discussion. What follows is a lightly edited excerpt of the interview.

Sirota: Why were many African American public officials originally supportive of the “tough on crime” policies passed in the 1970s and 1980s?

Forman: The first thing that we have to understand is rising crime and violence and addiction and the toll that it was taking on black communities. A lot of people remember the crack years in the 80's and early 90's, but before then, you have the heroin epidemic of the 1960's…

One of the things I did is I went back, and I looked at letters that were written to various D.C. council members in the 1970's...It was really striking and shocking that the anguish that lifts off the pages. You have citizens, mostly black citizens writing and saying, "You know, I feel like a prisoner in my own home. I feel like a stranger on my streets. What's happened to us as a community, I can't go outside. I can't walk my kids to school because there's drug dealers on the corner. I'm afraid to leave them in the playground after school because people are shooting. You have to do something."

The next part of the story for me is thinking about who is receiving that material? My book is really a book about this first generation of African-American elected officials, police officers, prosecutors, police chiefs that come into power, starting in the 1970's...One thing about them, many of them came from the south. Many of them were in the civil rights movement, and all of them remember the long history of under-enforcement of the law in black communities. They remember when you didn't call the police if there was a robbery or a fight in a black neighborhood because the police weren't going to come. If they did, they were just going to make matters worse.

[African American leaders] wanted to respond to those letters saying, "Protect us." They did it with police, with prosecution and with prisons, but the third part of my argument is that, that wasn't the only thing that they wanted…

The black elected officials that I write about say over and over again, "We want more police. We want more prosecutors, but we also want better education, housing, jobs, drug treatment, mental health treatment. We want what Michigan representative, John Conyers called a Marshall Plan for Urban America."

They wanted that all of the above strategy to fighting crime and violence, but they only got one of the above. The one of the above was law enforcement.

Sirota: In this same time period you write about, Ronald Reagan and his acolytes were also pushing “tough on crime” policies -- and many perceived their push to be a dog-whistle appeal to whites who weren’t supportive of the civil rights movement. Do you think there was a perfect storm of political consensus around so-called tough-on-crime policies?

Forman: There was...Sometimes, people can read what I'm writing and say, "Wait, are you saying that those things that Reagan wasn't playing a dog whistle politics?" No, not at all, but I think what happened was you had multiple groups of people for different motivations who ended up supporting some of the same things. A lot of the African-American elected officials that I'm writing about, they weren't following a tough-on-crime agenda because they weren't in it for racism. Most of them weren't in it for electoral gain. They were in it because they were actually trying to respond to the felt needs of the communities that they had been elected to represent. They were doing so under conditions of great constraint.

At the same time, first, even before Reagan, I mean going back to Goldwater and Nixon, and then Reagan definitely picking this up in the 80's. George H.W. Bush picking this up with the Willie Horton ad in his campaign against Michael Dukakis. You have a long line of white Republican leaders at the national level and at state and local levels who are preying on people's fears of crime for electoral gain. Yes, it was very much a perfect storm.

Sirota: What do you think policymakers can do to fix the criminal justice system?

Forman: I think that there's a lot that can be done. At a broad level, when we think about drug addiction, right, and a lot of the crime that I write about in the book is related to drug addiction. In this country, we consistently have treated addiction as a criminal justice issue, not as a public health issue. That's a policy choice, right? We make a policy choice when we decide to under-invest in treatment programs so that they're years-long waiting list if you want to get into drug treatment, which I faced with every single one of my clients who is addicted.

The only services that were available to them, and these were few, were through the criminal justice system as opposed to community-based centers. Those are policy choices that we've made to under-invest in that and to over-invest in prisons.

In Seattle, there's a program, and it's gone national now in many cities called Law Enforcement Assisted Diversion. In that program, police officers are trained and authorized to make direct referrals to drug treatment programs. You can't give officers only handcuffs, right, as a tool and expect them to do anything else. In lead, the officers don't just have handcuffs. They have the authority to take somebody who wants it and needs it directly to a treatment program. That's the example of just another way of thinking that I think would be a very viable alternative.

Sirota: To play devil’s advocate, what about the argument that says that with America’s crime rates near historic lows, the criminal justice system is working? How do you respond to that?

Forman: A couple of different ways. I think that there's a very loose connection, at best, between the crime rates and the criminal justice approaches that we follow. You are right, that looked at through a certain time period, that story is true, but it's also true that in a number of states over the last 15 years including New York, including California most recently, including Texas in the last decade. All three of those states are big states that have significantly reduced their prison populations over the last decade. In all three of them, crime has continued to drop. If there were, if it were true that the only way to reduce crime was to lock up more people, then in Texas, in California, in New York, the prison, the crime rate should have gone up. It's been just the opposite.

The second answer is there are multiple different ways that we can reduce crime...You know, if we locked up every young man in America, crime would go down dramatically, but we don't do that because we think that raises moral problems. We think that there are better ways of doing it. The way that I think about the issue is it's now time to try approaches to reducing crime that impose less costs on communities, particularly poor communities and particularly communities of color.

Sirota: Do you think sentiment about criminal justice policy in the African American community has shifted?

Forman: One thing to me that this book is really crystal clear on and one thing that hope that it's used for in public conversation is to show how, for how long and how deeply black communities have cared about crime and viewed crime as a civil rights issue, regardless of who's committing the crime. There's been this lie and myth that's perpetuated. I quote Rudy Giuliani saying it, but there's 15 other people that I could have quoted saying the same thing, that black people care about crime when it's police violence, but they don't care about so-called black-on-black crime.

I think I read my book as a 239-page rebuttal to that lie because it's clear. Every period of time that I write about, from the beginning until now, that there's an incredibly strong and powerful commitment in the black community to creating safe streets. People know who's making those streets unsafe. They know that sometimes, it's police officers. They know that it's sometimes somebody from the neighborhood and sometimes, it's somebody from across town. Sometimes, it's a burglar and a robber. They are well-aware of that.

I think the change, the biggest change in African-American community's sentiment in recent years has been about the war on drugs. I think that for most of the period that my book is about...drugs and violence were so closely-linked in people's minds that it was almost meaningless to say non-violent drug offender.

I remember saying that in court in the 1990's, and prosecutors and judges would snap at you and would say, "What are you talking about, non-violent drug ... Crack is destroying the community." I quote an African-American prosecutor in the book who says that, you know, from his standpoint, there was no distinction between the guy selling the rocks on the corner and the kingpin. He said that every rock of crack sold in the District of Columbia was stained with the blood of some black mother's son. That was his view, and it motivated him to be very aggressive about every single drug prosecution.

Now, the prosecutor I interviewed, he still does believe that. He told me so that his views haven't changed in that regard, but I think that the community's views have shifted.

I think that there's been more and more willingness to say, as we were discussing earlier, should this issue be treated as a criminal justice issue, or should it be treated as a public health issue? Can't we remain opposed to drug use? Can't we send the message to our kids that using drugs is not a good thing without also endorsing criminalization? I think that has probably gotten to close to a majority view, certainly clearly as a majority view, as applied to marijuana, and I think is moving in more of a majority direction on some other drugs.

Sirota: A recent Gallup Poll showed that respect for police has surged in America -- among both whites and people of color. That comes after a number of videos have come out showing police shootings. What do you make of those survey results?

Forman: Well, I don't think when people are asked whether they respect police, that they're being asked the same question as, for example, "Do you endorse stop and frisk style policing," or "Do you think that police officers are too ready to use lethal force against unarmed black citizens," or, "Do you think that there's a culture of silence within police departments that discourages people from being honest after somebody's made a mistake and maybe hurt somebody or shot somebody?" Those are the kinds of questions that I think would get, would probe in more useful ways to try to figure out community sentiment.

I mean if you went deeper and said, "On zero to ten, how much do you respect police?" I would say 10. I think it's a fundamentally important job. It's a hard job. It's a job that is both dangerous but also a job that requires an incredible amount of skill and compassion and empathy. I respect police officers so deeply.

At the same time, I think those other things, I think that we have a culture of silence. I think that I'm opposed to stop and frisk. I think that implicit bias, results show that we associate blackness with criminality. That can lead people, sometimes, to be more violent than they should be in situations of unarmed citizens, that mistake things that could be cellphones and other things for guns. I think all of those things are true at the same time. I think that probably most Americans, certainly most black Americans would think the same thing.