Factually! with Adam Conover - Mass Incarceration, Accountability and The Wire with James Forman Jr. (Re-release)

Episode Date: June 3, 2020

James Forman Jr., Professor of Law at Yale Law School and author of the book Locking Up Our Own, joins Adam this week to discuss the history of how mass incarceration became so distorted, juvenile court, confronting problems in the criminal justice system, and more. Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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So if all of that sounds good, if you want a big box of delicious snacks like this for yourself, use the code FACTUALLY for $15 off your first order at Bokksu.com. That's code FACTUALLY for $15 off your first order on Bokksu.com. Hello, welcome to Factually. I'm Adam Conover, and it's been a bad week in America. First of all, I hope you're doing all right wherever you are. And secondly, I want to say right up top, so there's no equivocation about it. Justice for George Floyd, Ahmaud Arbery, Breonna Taylor, and every black American who's been murdered by police or by vigilantes.

Black lives matter. And I want to say thank you to all of you who are raising your voice in support of those causes right now. And I join you in that because it's beyond clear that we need to radically change the way we police this country. change the way we police this country. I mean, when you have hundreds of thousands of people marching in the streets, protesting from their hearts, saying the police that are supposed to be protecting us are instead violently abusing us, not just in Minneapolis, but in every city around the country. And when those protesters are met by those very same police, but this time armed with military equipment that they use to violently abuse those same protesters. I mean, I don't know what to say. It doesn't seem like a great way to deescalate a situation.

And it's also very bad PR if you're trying to make cops look good because, well, now we are faced by, every time we open social media, hundreds and hundreds of clips of the exact same abuses that are being protested in the first place. And those images are very hard to watch. We've seen the police target Black Americans

with arrests and violence. We've seen the police target black Americans with arrests and violence. We've seen them target journalists who are covering the scene. At least one journalist was blinded by a rubber bullet this last weekend. We've seen platoons of armored police and National Guard march down residential streets, firing tear gas canisters at anyone so bold as to poke their head out of their door. And we've seen all those actions permitted or even directed by the officials we elected to run our cities. It's upsetting and difficult to watch because it shows us how far away the values we hold about our country are from the reality. Police militarization and white supremacy are literally strangling America.

So what do we do about it? Well, in the coming weeks, I'm going to be doing my best on this show to bring you guests, black experts in particular, who can speak to this moment and how we can all best respond to it. But something that's really important to me, and I've said this before on the show, that this is not just a podcast. This is a community of people who are curious about the world, who want to understand the problems facing us and how we can best handle them. And that means that my voice is not the most important one here. This is a project we are engaged in together. So I want you to get in touch. You can tweet at me or you can email me.

I just set up a new email address at factually at adamconover.net. And I'd love for you to share your thoughts, your feelings about what we're all experiencing together and what this show can do to better assist you in this time. Because now more than ever, we are all in this together. So let's talk about the episode this week. The episode we had scheduled to run this week was not about the events of this week. So we're putting that one on hold for a little bit. And we thought it better to rebroadcast an episode from our archives,

which is currently behind a paywall. And we thought this would be a great time to bring it out from behind the paywall so you can all hear it again, because the message that this guest brings us is so important and revelatory. His name is James Foreman, Jr. He's a professor at Yale University. He's the author of the book Locking Up Our Own Crime and Punishment in Black America, which is an incredible book and for which he won the Pulitzer Prize in 2017. and for which he won the Pulitzer Prize in 2017.

If you watch Adam Ruins Everything, you might remember him from our episode, Adam Ruins Guns, where he walked us through the racist history of gun control in America. And in this interview, we talk about racial disparities in criminal justice. We talk about mass incarceration. We talk about their historical roots.

We talk about his work as a public defender. What he talks about in this episode is so relevant to everything that we're facing today. I really hope you enjoy it and get something out of it. Without further ado, that's okay. I don't know anything. Welcome to Factually, I am Adam Conover, and today I'm going to start by reading you some numbers. These are numbers you may have heard before, so it's easy for them to just wash by. But this time, when you hear them, I want you to really focus on them and picture what they mean for real people alive today. Because these numbers are perhaps the most important fact about America right now. Mass incarceration in the United States is completely out of control.

The U.S. has about 5% of the world's population, but 21% of the world's prison population. That's right. One in five prisoners in the world is right here in the old U.S. of A., home of baseball, apple pies, and prison cells. There are currently 2.2 million people incarcerated in America. That's almost the population of Houston, a city large enough that it has a 26-lane freeway and they still have traffic. Because, you know, the truth is no matter how big a freeway you build, traffic grows to fill it because of a principle called induced demand. You know what? That's a different podcast. Let's save that for another episode. 2.2 million prisoners. That's half a million more than China, an avowedly authoritarian state with more than four times our population. And on a per capita basis, our closest competitors for rate of incarceration are El Salvador,

which in recent years has had the highest murder rate in the world, and Turkmenistan, a highly repressive Central Asian country known for its punishing restrictions on speech and religion. But nope, the world's biggest jailer isn't those folks. It's us here in Freedomland. And while black Americans use drugs at about the same rate as whites, they're nearly six times more likely to go to jail for it. As a result, one in ten black children has a parent behind bars.

These policies are actually destroying communities. And in case you're wondering, hey, Adam, come on, man's incarceration is bad, but maybe it stops crime, right? Well, consider the fact that even though the homicide rate has been pretty close to where it was in 1950, our incarceration rate is now over 500% higher. Our solution is not only completely out of proportion to the problem we're trying to fix, it's not even working. Mass incarceration, in my view, is America's greatest national sin now. You know how we look back at

the past and we shake our heads and we say, oh, how could people back then be so ignorant as to enslave other people or to try to cure headaches with lobotomies? I'm sure glad we know better today. You ever wonder what people in the future are going to say about us? It's going to be mass incarceration and climate change. But again, that's another episode. But look, here's the thing. The system we have is not actually one that anyone set out to create. No one in the 70s was trying to incarcerate 2.2 million people. It was choices made by politicians and policymakers at every level of government, Republicans and Democrats, who were responding to the problems of their times in ways that made sense to them. They weren't all evil supervillains. Many of them just took actions that backfired in the most disastrous of ways. So what do we do about it? How do we reform a criminal justice system that has been built to incarcerate more people at every level of government for 40 years?

Well, here today to help me unravel this tragedy and this challenge is my guest, James Foreman. I'm honored to have him. He's a professor at Yale Law School. He also spent years as a public defender in Washington, D.C. and clerked for Justice Sandra Day O'Connor. And he won a Pulitzer Prize for his book, Locking Up Our Own. So along with Matthew Desmond, who wrote Evicted, our Pulitzer count is now up to two. We'll keep you posted every time that count increases. But today, James is one of the brightest minds and clearest voices on mass incarceration and criminal justice reform. I hope you enjoy this interview. Please welcome James Foreman. Hey, James, so thank you so much for being on the show. It was really wonderful having you on Adam Ruins Everything a couple months back, and it's great to have you on the podcast.

Yeah, it's great to be here. I really appreciate it. So let's talk about your early work. You spent years as a public defender before you became an author and a professor. How did that experience inform your work now vis-a-vis reforming the criminal justice system? Well, I think being a public defender for anybody, certainly for me, has a way of really kind of deepening your understanding and sharpening your critique of what's happening in courts and jails and police stations and prisons around America. I mean, when you become a public defender, you're down in the trenches, you're seeing unfairness and injustice every day. You're seeing poor people who have never been provided decent opportunities for housing, for education, for healthcare, for child support. And now at their worst moment, their lowest and most vulnerable moment, the state is just pouring resources into locking them up for years, for decades, in some cases even for centuries.

And so it really, I think when you do it, just the unfairness of our system, it just like hits you over the head like a sledgehammer. it just hits you over the head like a sledgehammer. And I think that for some people it lays them low, and it's really hard for them to go on. And then other people are able to find a way to go on and to push forward, and that was me. Are there any particular stories from that time that stand out to you that you go back to today when you're thinking about these issues as touchstones? Absolutely.

I mean, there's a bunch. I mean, some of the stories that I tell in my book, I guess, are maybe the ones that stood out the most for me, which is why I ended up retelling them. ended up, you know, retelling them. But, you know, one of the teenagers that I recommend represented, you start out in juvenile court, I should say, in my office. And so some of the stories that stand out the most for me, I think in part because I was a new lawyer and in part because they were kids, they were teenagers, you know, involved my experience in juvenile court. But one of the people that I represented, a teenage client, I call him Brandon now. That's not his real name, but I want to protect his identity. He is 15 years old, charged with possession of a gun, small amount of marijuana,

and he was facing sentencing. And I was asking for him to be put on probation. And I had a letter from a teacher and a counselor at his school. I had his mother and grandmother there in court. They were asking for him to come home. They were asking for a second chance. And the prosecutor is asking for him to be locked up at a place called Oak Hill, which was D.C.'s juvenile prison. And like a lot of juvenile jails around the country, Oak Hill combines a nice sounding name. It sounds great. Yeah, it sounds great. Right. It combines that with a really terrible violent reality. I mean, you know, drugs and violence are everywhere. And it was a place that there were no real programs.

There were no functioning programs for kids. I mean, there were things on paper. But, you know, if you go out there, you saw that it wasn't happening. And the judge had to make the decision in the case, Judge Curtis Walker. Again, not his real name. He looks out in the courtroom at the prosecutor. He looks at the public defender. He looks at Brandon. And everyone in the courtroom in this case happens to be African-American. And the judge, as he was inclined to do,

who is himself African-American, he starts to read Brandon, or I shouldn't say read because it didn't come off as he was reading. He embodied, he lectured, he lived this speech that we call the Martin Luther King speech in our office. And, you know, and he invoked Dr. King, and he said, you know, Brandon, Mr. Foreman's been telling me that you've had a tough life, you deserve a second chance. Well, let me tell you about tough. And the judge, the judge had been a child under Jim Crow. So he proceeded to, he told Brandon, you know, what that was like. And then he sort of wraps up in full fervor and says, you know, people fought and marched and died for your freedom. They died for you to have opportunities that previous generations never had.

And what I know they didn't die for is they didn't die for you to be out there running and gunning and thugging and embarrassing your family, embarrassing your community, carrying that gun and those drugs. So I hope Mr. Foreman is right. I hope you turn it around one day. But today in this courtroom, actions have consequences and your consequence is Oak Hill. And he locked him up. And I was so outraged because, I mean, when the judge went into that speech, I kind of thought, okay, he's going to give him this hard court lecture, but then he's going to back off on the sentence, you know? And almost the lecture was going to be the punishment. this emphatic speech with a prison sentence or a juvenile prison sentence, it really made me think about how so many people in our current system, they're kind of trapped in this way in which they feel like they only have two options. It's either forgive and excuse or lock up.

That's it. And so the judge just went, he wasn't willing to forgive and excuse. So he his only other option was lock up, lock up. That's all we have in this country is lock up. And so that's what he did. And so that's a dichotomy that's very stark. You feel that there's room in the middle of it that or that we should be exploring? Is that is that the idea? or that we should be exploring? Is that the idea? I do. You know, I think that we've gotten to a place in this country where because we really feel like the only punishment, the real punishment that we have, or the real, you know, this is what, actually, this is what I mean to say. We've conflated, and the author Danielle Sered really makes this point well in a book that she has. She talks about how we've conflated punishment and accountability. And so people want folks to be held accountable, right? Especially a crime that's, you know,

done direct harm to somebody. I mean, in Brandon's case, it was possession of a gun, and it could have done harm, but it didn't. But in a case where there's been a direct harm, people want, and I want, we all want somebody to be held accountable. We want them to have to acknowledge that what they did was wrong. We want them to apologize. We want them to make some sort of amends. We want them to show us that they're going to live a different future than the past that brought them to that moment. You know, that's what we crave, I think, as humans. But the system that we have, we've defined accountability as punishment. So the only way you can hold somebody accountable now is prisons.

Prosecutors say this all the time to judges. They say, listen, you know, this person, this person is asking for a second chance, but you have to hold them accountable. And then what follows is the term of years. And I guess what I'm saying is that we have to work to create an alternative set of sanctions and of programs that allow us to hold people accountable without just simply excluding and punishing. And that's what I think would have made sense in Brandon's case. And so what does that look like in Brandon's case? Put yourself in the judge's shoes. What's your ideal outcome for that case? Yeah. I think in that case, because it was his first arrest and because he hadn't used the weapon and because he had an explanation for why he had the weapon, which was that he felt very fearful in his neighborhood, which was a very violent neighborhood.

Right. Self-protection. Right. And so I think that there has to be, you know, in Brandon's case, I can't say that I had come up with a brilliant alternative program. So I guess in some ways, maybe you could say that the judge, you know, we have some sympathy for the judge because I hadn't necessarily provided some brilliant other option for him. But Brandon was apologetic and he was, his mom and his grandmother hadn't known that he was, had kind of gone in this direction. And this really was, you know, it's a cliche, this idea of a wake up call, but it did feel like that for his family, that all of a sudden there was this renewed understanding and commitment that he was on the precipice, he was on the verge. And so I think something where he would have been very carefully monitored, where he would have had to been in the house at a particular time,

where there were certain individuals that he would have had to kind of stay away from and not affiliate with, that combined with his commitment to go to school, his commitment to get good grades. I feel like for somebody like that with his first offense, that that is something that should have been tried. Yeah. Speaking about this as a gun offense, the reason that we had you, what you spoke about on Adam Ruins, everything on our episode of Adam Ruins guns, was the effect that gun control policies specifically have had on the black community and on other people of color. And this does seem like a case of that to me, that as much as gun control advocates say, hey, we, there are too many guns, we want less of them around. The details of how we enforce those policies,

where we need to enact them, can have really diverging results depending on how we do it. And I was wondering if you could speak to that a little bit more here. I think you're right. And I thought that that episode of the show really kind of brilliantly exposed

some of the contradictions and why this is an issue that is really a hard one. And so, but yeah, I think, you know, when we think about gun control, right? So, African American leaders around this country really started to get some, around this country really started to get some, win some positions of power and authority starting in the 1970s because of the effect of the Voting Rights Act of 1965. And so a people that had been, you know, historically disenfranchised are finally at least partially enfranchised and start to win some folks in city council's office and county council's offices. And that's at a time when

crime is rising in this country. And so it's a moment, I think, where we can start to see the beginnings of what would be and continues to this day to be a very intense conversation within the black community about what to do about gun violence, because it's very real. It's very felt. It rips communities apart. And yet here's the problem. We don't have any kind of national gun control policy, right, for a bunch of reasons. For legal reasons, because of how the Supreme Court has interpreted the Second Amendment. Political reasons, because of the kind of the incredible power that the gun lobby has had over Congress and over our presidents. And so there's nothing happening at a national level that would be meaningful, that would be along the lines of

what you see happening in European countries or Asian countries, which have much lower rates of gun violence than we do, right? And some of these are countries that don't have lower rates of crime overall. But so they're not perfectly, you know, crime free societies, but they are societies that have a 10th or 100th the gun violence. And that's because they have real national gun control policy. But we don't have that. Right. And so now you're in a city, you're in D.C. like Brandon was in or you're in New York, you're in Chicago, you're in Detroit, you're in Baltimore. And you want to do something about this if you're a local elected official.

So what can you what do you do? Well, you go to Congress and ask them and, you know, you come back empty handed. And so then you do something at your city and county level and you pass laws that prohibit the possession of guns in the jurisdiction over which you have authority. Right. In the case we're talking about, the city of Washington, D.C., or it could be any city. Well, who ends up getting punished? Who ends up being prosecuted under those laws? It's not the gun manufacturers. It's not the big gun distributors.

It's not the salesmen, right? It's not the people shipping them across the highways. Who is it? It's people who live in cities who are disproportionately African-American, disproportionately people of color, disproportionately low income, disproportionately young. So it's people like Brandon. And so I really think that with gun control laws, we've ended up now with the worst of both worlds. That is to say, we have incredibly high rates of gun violence and we have high rates of jail going and prison going and criminal convictions that are focused on the African-American community. So

I'm not on this one. You know, I like to have solutions. I'm not 100 percent sure what the right answer is, but I know the answer that we have right now, you know, isn't the right one. So let's talk about the fact that you said in that courtroom that Brandon was in that the judge is African-American. Most of the people in the courtroom were African-American. You talked about how in D.C. there was this moment of black elected leaders coming to power when when a lot of these policies were passed. This is the topic of your book, Locking Up Our Own, which is it's an incredible book. And it's such a starkly different narrative from the one that we normally hear about mass incarceration, about violence, about crime in our cities. The normal narrative we hear is that mass incarceration is discriminatory and that,

you know, there's the right-wing argument about black-on-black crime that we hear. The history that you tell stands in such stark opposition to both of those narratives. And yeah, I was hoping you could summarize that for us. narratives. And yeah, I was hoping you could summarize that for us. Absolutely. So when you say the kind of right-wing narrative, so let me take that one on first, because I think, I do think that the story I tell really is in stark opposition to that. And then I'll get into the other one as well. But you hear this anytime there is a shooting by a police officer, right, of a black citizen. And Rudy Giuliani, you know, a couple years ago was on the news constantly making this point. But there are many others who make it. When you see Black Lives Matters protesters taking over a highway or otherwise engaging in civil disobedience, you know, people will say, well, how come they only care about crime when it's a police officer?

How come they don't care about crime in their own community? You know, how come they're not protesting then? I think the history that I tell really focused on the last 50 years, but in some ways going back even further than that, is that the African American community has always been focused on and really consumed by the question of self-protection and protection of black lives against all possible threats, including black neighbors, black friends, black family members. The notion that black people only started to complain about crime and violence and only started to demand responses by the state when it was a police officer is just, it's somewhere between wrong and a lie. And I don't like to call people liars that often. But so, cause I think some people are honestly mistaken because they don't know the history. And so I feel like my book is a rebuttal. It's a 200 page rebuttal to the claim that black people only started caring about this issue. rebuttal to the claim that black people only started caring about this issue. I mean, your book is full of these examples of press clippings from black publications

that are talking about the problem of crime in the city, crime among, you know, brother robbing brother kind of to use sort of the lingo of the time or of and of these, you know, when these elected leaders came to power, they started instituting what we would now think of as tough on crime programs. That's right. I mean, the day. So in 1975, in Washington the Afro-American, one of these clippings you mentioned that I have in the book, you have the story of this black city council, Holmgren City Council, taking office and being sworn in. has been robbed in his home. And, you know, right there, I feel like you can see the seriousness with which this issue is being taken, that it's even able to kind of trump this historic moment, right, for the local newspaper. But yeah, there's example after example of it with photographs, with illustrations. One of my favorites is actually there's an African-American librarian in the early 1980s who's leading anti-violence rallies in his neighborhood. And he's carrying a gun.

And, I mean, guns were prohibited. But he was so in the city at the time. But he was so frustrated. And maybe it's just that I work with a lot of librarians. But he was so frustrated. And maybe it's just that I work with a lot of librarians. But there's something about the librarian, the armed librarian that that really as soon as I saw the image, I said, Oh, wow, I have to use this. So, you know, there's that. And then to you mentioned the other narrative that in some ways, I'm, I'm complicating. And here, I think, I don't, and that's the narrative that says, you know, this, this is a this system that we have, right, with 2.2 million people in prison and 7 million people in criminal justice system, and one out of three young black men under criminal justice supervision, right, this system is a racist and discriminatory system. And there, I don't view my research as rebutting that in the same way that I view it as rebutting the other narrative we were talking about, but I do view

it as complicating and adding to it. So that's really what I want to do to that narrative. I want to say, listen, a lot of what you've read, right, and a lot of the books that I grew up reading, remember, the reason I became a public defender, the reason I was in court standing next to Brandon, asking for him to be put on probation, the reason why I was so outraged by the judge's invocation of Martin Luther King to lock him up, the reason why is that my background is in civil rights, and it was my belief that this was a discriminatory and racially unjust system that led me to be a public defender. So I don't view my research as repudiating that, but I do view it as adding to it. And I do want to say, okay, all of that is true and it's real and we have to grapple

with it. And there's this other piece of the story that we haven't talked about. And that's the piece of how this debate has played out within African American communities. And some of the ways in which I think for understandable and for forgivable reasons, but nonetheless reasons that need to be addressed, we in the African American community have adopted some of the same mantras, some of the same mindset, some of the same policy positions as the rest of the country. And so exploring why that is and what led us to that point is really the research and the argument. Right. And that self-criticism or that clear-eyed view of how these changes occurred are completely necessary if one wants to eventually solve the problem or take any steps towards solving it. I think that's right. I mean, every,

I travel around the country now speaking often at universities to policymakers, sometimes to elected officials, sometimes to judges, writing op-eds. And one of the things that I've been struck by is how even in this moment when we have a certain amount of national agreement that mass incarceration is a problem and that we need a different set of solutions going forward, We need a different set of solutions going forward. There's still a lot of entrenched behavior that we haven't, that we're still doing on the ground many of the same things that we did for the last 40 or 50 years. Even as rhetorically, people are starting to say maybe we should do something differently. And so, you know, I was recently working with some folks in the state of Maryland with the black I told them some of the history that we've just been talking about. And I said, listen, I get it. I get that your motivations are pure and the reasons are compelling. But understand that previous generations saw a similar problem and they passed mandatory minimums. And at the time, we didn't have all the research to show that they were ineffective and racially discriminatory.

But now we do. Now we do. So don't make the same mistake that they made. And that's where I think the history ends up, as you said, being clear eyed about the past helps us chart a new direction, you know, right now and in the future. When you think of how we got here, though, I think when we think about mass incarceration, and especially the discriminatory nature of mass incarceration, it's very easy to assume, hey, this was these policies were passed in bad faith, that these were policies designed to keep the black community down, right? To segment them off from the rest of the population. And your narrative complicates that.

How do you think of it in terms of, I mean, I'm not gonna ask you to quantify, but how much of it was folks making well-intentioned policy changes that had disastrous consequences versus how much of it still feels to you as malicious? Yeah, you know, that's such a good question. It's such a hard question. And I've thought about it. And I've thought about, you know, I've thought about it for myself and whether I feel like I can answer it. And I'm not sure that I can, other than a sort of a kind of a cop out answer, which is to say, you know, some of both, but I'm not sure how much of each, which, we clearly have historical figures. You can go back to, you know, President Nixon, right, whose advisor H.R.

Haldeman was kind of famously and now in many histories has been quoted as describing Nixon's theory and saying that, you know, Nixon understood that, you know, we couldn't talk about blacks in the same way that we had done in a previous era. So now we were going to talk about crime as a way of signaling to that kind of white middle class suburban voter that we were here to protect your interests and they aren't, right? So there are clearly figures who are very intentional in their exploitation, right, of kind of race baiting. I mean, George H.W. Bush and the Willie Horton ad to, you know, that go forward a couple decades later after Nixon, or even today, you know, Jeff Sessions and, you know, the former attorney general or our current president and the way that, you know, he talks in this kind of fact free way about Chicago, you know, he'll invoke Chicago as a after citing some numbers, and he won't mention things about the national crime decline, you know, he'll sort of pick a particular city that's associated with having a large black population and hold it up to the audience at the Republican National Convention as, you know, you should be afraid the Democrats are going to let the rest of the country become like Chicago. And so there are figures from today back into 50 years who seem to be exploiting racialized fears, right? And so, and there's this other story

that I've been describing to you. There's a story of people who, like the judge, right? I wouldn't put the judge, the judge who sentenced Brandon, he's not in that category in my mind. I mean, I'm outraged that he locked Brandon up, but I'm much more sympathetic to his motivations. And how to divide that up, I'm not really sure. I'm really not.

Well, the problem is so difficult, but let's talk about some solutions right after we take a short break. I don't know anything. I don't know anything. Okay, we're back with James Foreman. We just spent the first half of the show talking about the history of how mass incarceration and our criminal justice system became so distorted in America. I'd like to try to talk about some solutions as difficult as they might be. The first one is that you alluded to how there seems to be a beginning of a moment of agreement that we need reform in our criminal justice system. One of the few major pieces of bipartisan legislation of the last few years that existed at all was the First Step Act that Congress passed last year, which was heralded as a huge reform. How did, and, you know, I have

to say that, you know, just the idea that, hey, we've got Republicans and Democrats both agreeing that criminal justice needs to be reformed, That certainly sounds encouraging to me on its face. But as someone in the trenches of it, what is your feeling about it? Well, I'm encouraged as well, right? I think it's thrilling that there was this federal, the First Step Act. I mean, it's a small step. It's affecting only the federal system, which is only about 10% of the, only 10% of people in prison and jails in this country are in the federal system. So it's a small piece of legislation that affects a relatively small part of the overall population. But having said that, having said that, it is a step in the right direction. And for somebody like me who's been looking at 40 or 50 years of steps in the wrong direction, one after another, after another, after another, for what seemed like miles and miles and miles, a step back in the right direction is absolutely something to seize upon and to try to build on going forward. There also have been at, you know, in states around this country, there's been quite meaningful legislation. So Florida passed Amendment 4, which re-enfranchised over a million voters who had been, Florida had one of the strictest felon disenfranchisement laws in the country. And, you know, 65% of Florida voters, right? All the elections, we know the elections in Florida,

they're all like 51, 49, right? Every election, like you never hear 65%, right? 65% in Florida, including 40% of Republicans voted yes. And that speaks to how much in America, I mean, like you said, we have this moral demand for punishment and accountability, but we also, we do like second chances. If you ask people directly, if you can appeal to that in them, they will respond that way. I think that's right. I think that's right. I mean, one of the stories that I tell in the book, I'll just mention it briefly. Um, and, but it was a young man that I represented, uh, named Dante and he robbed somebody. And the only way, you know,

the very short version of the story that I'll tell you, the only way that we were able to, I was able to persuade the man that he robbed to go along with a program that Dante's mother actually had found for him was to go meet with the man. In the book, I call him Mr. Thomas and sit down and tell him Dante's story. And what happened out of that meeting was, I think, that Mr. Thomas had the ability to hear about Dante as more than the person that came up to him at this bus stop with a knife and asked him for his money. You know, naturally, that was the only person that he knew. And when he learned the rest of Dante's story, when he learned that Dante's mother had been addicted to drugs and basically had let the streets raise him, addicted to drugs and basically had let him, the streets raise him. When he learned that Dante had this incredible ability to carve and do woodworking, when he learned that we had gotten him into this program run by a pastor where he was going to be getting a lot of counseling as well

as a lot of the passengers happened to be a carpenter on the side, a lot of carpentry training. When he learned all of that, and when he thought about the fact that Dante was the same age as one of his children, and when he read Dante's apology letter, Dante had apologized to him the very night that he had been caught and arrested. He had apologized, and then he had written a longer letter later. When you put all of those things together, I think going back to the conversation we were having at the top of the show, he felt like Dante had been held accountable. He felt like Dante had made amends. And he felt like Dante now had the possibility of going down a track where he was going to end up making a real contribution to our society and to the city

and living a crime-free life if he were willing to give him that second chance, right? You said that Americans, you know, like second chances. And I think we do. But here's the thing. We like them when they're attached to a story. We like them when they're attached to somebody we know or somebody that we can learn about. And in Dante's case, Mr. Thomas now had a story, right? I was the one telling him the story. And that changed and softened him in a way and opened him up to the idea of second chances. opened him up to the idea of second chances. So I think as we imagine how to build on this reform moment that we have and really make it meaningful and make it last and make it transformational,

it is going to be about telling stories. It is going to be about lifting up the individual cases, the Dantes, the Brandons, all of these people that right now are this nameless, faceless, amorphous, you know, 2.2, I tell you 2.2 million people are in prison. That doesn't mean anything really, right? You can't, you don't know what to do with that as a listener. But when we start to talk about individuals and we start to share their stories, I think that opens people up to consider another way. I think so as well. It's just, yeah, it's difficult to tell 2.2 million stories. That's right.

But so you've spoken about, one of the things that we often use to help tell the story of one of these cases, hey, this person deserves a second chance. We often lean on this idea of, hey, this is a nonviolent offender. This person, oh, it was a drug arrest. It was nonviolent. No one was hurt. And that's why this person deserves some leniency. You've spoken about how that's not sufficient and that if we really want to inform criminal justice and how if we really want to reform criminal justice, we also have to address violent crimes and violent offenders. Can you speak about that a bit? Absolutely. I mean, I've been writing about this point for six or seven years now and most recently in the epilogue of my book.

And actually Dante's story, which we just talked about, is one of the stories that I tell to try to make the point. Because in Dante's case, when he got accepted to the program, or before he got accepted to the program, excuse me, before he got accepted into the program, I was calling around programs all over Washington, D.C., trying to get him admitted. And I would tell them the story of his upbringing, how hard it had been, and yet the promise that he had, in particular focusing on his skills as a craftsman. And the program representatives would hear me out. And then when I was done, they would say, he sounds like a compelling candidate. What's he going to plead guilty to? And I would say armed robbery. And they would say, well, we don't work with violent offenders. And armed robbery, mind you, is the most common single violent offense we have. More people are in prison for armed robbery than any other of the offenses that are violent offenses in the country. So it's a very typical, you could say,

or common. And how demoralizing it was to have the whole of Dante's person reduced to that offense, to be reduced to that label was, it was, yeah, I mean, it was, as I said, it was just demoralizing. And so I feel as if, you know, when we look at reform in this moment, over half the people that are in prisons in this country are in prison for an offense that has been labeled or coded or identified as violent. Now, some of them may not be. Most of them are not what the average listener may have in mind, which is rape or murder, right? And so we had to be clear about, well, what do we mean when we say violent? But when we broaden it out as the criminal legal system does to include robbery, to include armed robbery, to include burglary, to include robbery, to include armed robbery, to include burglary, to include, in some cases, gun possession, you get to over half of the offenses. So we're not going to meaningfully make a dent in 2.2 million people. But more than that,

we're not going to be, I think, kind of fair to all of those people who are behind bars, because to me, it's not fair to exclude somebody from consideration, no matter what else they've done, and no matter what other obstacles they face in their lives, simply by their charge of conviction. So we're not going to be fair, and we're not going to be just, and we're not going to be moral, if we're not able to expand our kind of horizons beyond this violent, nonviolent distinction. And when I tell Dante's case, when I tell his story, and I mention, you know, that his offense was armed robbery, I recently, I was doing a, like a kind of a speakeasy thing in New York, and I told his whole story, and got down off the stage and a woman came up to me

and she said, wow, that was very compelling. She said, I just have one question for you. I said, what's that? She said, I wish you had talked about somebody who committed a violent offense. And I was caught off guard because I said, wait, the offense was armed robbery. But then when I reflected on it some more, I realized she didn't think of him as having committed a violent offense because she knew his whole story. It was the very fact that I had told his story and put the crime in context that for her, it made her see him. She almost had two categories in her mind, right? Like evil people who should be locked up forever and others. And once I told his story, he moved into others. And therefore, in her mind, he must not have been violent. So we really have to break through, I believe, some of these

categories and some of these labels. And we have to look at people as individuals to really get to a point where we're going to do anything meaningful about having the largest prison system. Right. And a story. Yeah, it just comes back to how important storytelling is. That's one of the reasons I think, for instance, the podcast Ear Hustle, I'm a huge fan of and is such an important thing. since the podcast Ear Hustle I'm a huge fan of and is such an important thing, because just hearing interviews with folks who are locked up gives you that story and makes you put yourself in that position, and it takes it away from an abstraction, and it makes it a real place with real people in it. Exactly, exactly. And you know who is almost the perfect example of the impact that stories can have

is former President Obama. And I mean it in this way. President Obama, often to my great frustration, would talk about how he reinforced this violent, nonviolent distinction in his rhetoric. All the time, he would talk about how nonviolent drug offenders deserve second chances. And then he would say, but if you committed a violent offense, I'm not talking about you. If you committed a violent offense, I have no sympathy. You know, that was his line. And then I would see these speeches over and over again.

And then I saw him being interviewed, and he was being asked about his favorite television show. He says, favorite television show is The Wire. And I wish I had known him or had some way of connecting to him because I wanted to call him up and say, President Obama, nobody's nonviolent in The Wire. Like, seriously, if you go back to The Wire, every single of those characters, even Bubbles, the heroin addict,

who's the most closest to a pure nonviolent offender, commits an act of violence. But he didn't see them that way. Right. And why? It was because of the power of David Simon's storytelling, that you understood them in the context of their lives, in their constrained opportunities, in the toxicity of the system in which they were growing up. And he didn't hide the violence, right? David Sondheim, I mean, it was gory. It's a shockingly violent show. It was a gory show,

but you did not think of them as violent people. Yeah, it's true. I mean, even characters like, I mean, you know, the most popular character from that show, Omar, his main bit of his story is that, you know, a man must have a code, right? That once we just get into the character's head that much, we tend to like them.

And that's easier. It's fiction. But yeah, I mean, getting a sense of that story makes you empathize so much more deeply. Yeah. So anything we can do, and you mentioned ear hustle, and I completely agree. And I think that when you take ear hustle and the idea of stories and you put them together, to me what it means is anything that we can do to lift up the voices and elevate the presence of people who have been mostly directly affected by the system, people who have been convicted

or have been incarcerated, who have suffered and experienced in that way. Because one of the things that you'll find, I think, when you talk to those folks is they're not, they're not, they don't deny in many, I mean, some people are innocent, but a lot of people talk forthrightly about what they did and the harm that they caused, their desire to overcome it and to make amends for it. to overcome it and to make amends for it. And then they go on to talk about all of the ways in which the system that we have doesn't make things better. Like we think we're solving crime, responding to crime. We think we're holding people accountable, but we're not. So if we can do more to raise up the voices of those individuals, people like the ones we hear on Ear Hustle, and make that more of a, not like a niche part of our programming, but a more kind of regular part of the media that we consume and the information that we consume. I think that's a critical piece of the reform agenda. I'm curious, and you can defer on this question if you like, because I know that you have a position where what you say has weight.

But I'm very curious because I've spoken to a number of reformers and activists on this issue, and it often seems that they fall into two camps where they're either reformers or – they're almost always reformers. They're either reformers or they're almost always reformers. But then sometimes under the surface, I realize that they're also abolitionists, that they feel that the prison system has so abandoned any notion of serving a constructive purpose, that rehabilitation isn't happening, that, you know, that clearly the only purpose is to sort of sequester folks who are frightened of far away from us. And I'm curious where you fall on that. Yeah, that's such an important question. So, you know, I was, I think I had my, this is almost two years ago. So my book had been out for a month or two and I was giving a talk and it was in Oakland and it was a smallish audience. And I finished the talk and a woman

came up to me afterwards and she said, you know, I'm hearing you talk and you sound like you're an abolitionist, but you never said the words abolition. And I'm just wondering, you know, where do you stand? And she said, I think she then went on to say, are you a reformer or are you an abolitionist? And I really thought a lot about her question because I hadn't, I mean, I had read Angela Davis's book, Our Prison's Obsolete, which is in some ways kind of one of the founding texts of the abolition movement. I had read that, you know, some years ago, but I hadn't reread it.

So I went back and reread it. And I went back and read a bunch of other things. And what I really love about abolition as a concept is that abolitionists seemed to me to be in a project of imagining a world without prisons and then saying, okay, let's imagine that world and let's think about the systems and the structures and the institutions and the cultures and the beliefs and the ideologies that we would have to build up to support, right? To make such a world possible, a world without prisons, and then to make it sustainable. And I love that project. I love that project because it shows how, like, it makes you face up to the smallness

of something like the First Step Act, which we were talking about before, right, which is a massive, important piece of change given where we've been as a country, but it's also tiny. And abolitionism, you know, abolitionists let you, force you to see that. And they make people, I think, they make people who might otherwise become kind of self-satisfied with relatively incremental reforms, face up to the incremental nature of those reforms. And I think that's essential. What initially, I think, caused me not to identify myself as an abolitionist was this idea that I couldn't see right now how we could have a world without prisons because

there are people that need to be sequestered at this moment. It's unfair that they've had a life which has brought them to that point, but here we are. And I still believe that and I still believe that, and I still have that caution. But as I understand the abolitionist project, and maybe this starts to make the question a I just said, but they're still committed to working to create that world. And so, you know, I guess I've increasingly come to agree with the woman that asked me the question and increasingly been comfortable with calling myself an abolitionist as long as all of those, you know, with various caveats. And maybe my caveats, I don't know, right? Maybe my caveats would make the abolitionists say, no, no, no, you're not, you know, you're not actually one of us, right? You know, like, don't claim the mantle with all those caveats. If you've got that many caveats, You know, like don't claim the mantle with all those caveats.

If you've got that many caveats, then maybe you're just, maybe you're a reformer. And I don't, me personally, I don't have a, I don't have a stake in like the fight between what is a reformer and what is an abolitionist. Like that fight doesn't, to me, feel like a meaningful one. And so I guess in the same way that I'm saying don't get caught up in labels, right? We just talked about this. Don't get caught up in labels, violent, nonviolent. I'm not going to get caught up in labels, abolitionist, reformer, otherwise. What I am going to do is to continue to be part of a project that says, let's make our prison system as small as it possibly can be. And let's build up structures of support, drug treatment, mental health treatment, education, housing, schools, like let's build up this robust infrastructure that can actually help

communities thrive and can help keep us all safe in a way that nurtures and rehabilitates and protects and restores communities without all the toxicity of our current system. So that's my project. And I'm happy to be called an abolitionist. I'm happy to be called a reformer. I'm happy to be called an idealist. But that's who I am. Well, that's a wonderful North Star, at least to fix for yourself to move towards and for all of us to move towards. I'd just like to end by asking, for folks listening, this is such a massive problem, like a lot of the problems I talk about on this show. But this is one of the most massive

and overwhelming. And, you know, there are small reasons for optimism, but I'd just like to ask for the folks sitting at home saying, I wish there was something I can do. What can they be doing? Absolutely. There's so much to, and so here's the thing that I'll say about that, which is there's so much to be done because the system, the unfairness of the system now touches so many different aspects of our law and our society and our economy and our politics. So the answer is going to depend a lot on what's happening in your local community. The organization, the ACLU, has a national reach. They have offices in all 50 states. And so what you should do is going to vary a lot

state to state and county to county. But I think going to the ACLU Smart Justice Project and just checking out the resources in your community is a great way to start. Another organization called Families Against Mandatory Minimums is similar. They have offices around the country and not in every state, but in many states. They do a lot of D.C.-based work, but they have affiliates all around the country. So I think the most important thing for an individual to do is to get in community with other people where you live who care about this issue. And those folks are going to help guide you to some of the solutions. In some places, it might be changing our bail system. In some places, it might be eliminating mandatory minimums. In some places, it might be giving people minimums. In some places, it might be giving people who are coming out of prison the right to vote. The issue is going to vary,

state to state, community to community. But if you get connected with some of the organizations that I just mentioned, I think you'll find a way to do something that is important and is meaningful, that is meaningful to you. Well, thank you so much for coming on the show, James. Talk about it. It's, I mean, as I sort of said in my introduction to the show, it's a problem that we're all aware of. We're all aware of these numbers, but confronting them is so difficult to actually hold them in our minds and fix ourselves on what they mean.

And I really appreciate you coming on to help us do that and help us find our way out. Absolutely. Thank you so much for choosing to focus on this issue. And I hope this podcast turns out to be a great success. Thanks so much, James. Thank you once again to James Foreman for coming on the show. His Pulitzer Prize winning book is again, Locking Up Our Own. And that is it for this week's Factually. I'm Adam Conover. Please give us a rate or review or a subscribe on Apple Podcast Stitcher or wherever you get your podcasts. I want to thank everybody at Earwolf and our producer, Dana Wickens, our researcher, Sam Roudman, and the

party god, Andrew WK, for our theme song, I Don't Know Anything. Check it out on iTunes or whatever. You can follow me on Twitter at Adam Conover or you can subscribe to my very special mailing list at adamconover.net where you'll get secret links and news directly from me. Until then, we'll see you next week. Thank you very much for tuning in. That was a HeadGum Podcast.