James Forman Jr. on The Drug War in a Black Community

Yale Law Professor James Forman won the Pulitzer Prize in 2018 for his courageous and remarkably insightful book, Locking Up Our Own, in which he reflected on his experience as a public defender in Washington, DC in the 1990s. Many of James’ clients were young Black men getting arrested and often locked up for drug offenses and other drug-related crimes. He saw himself engaged in the unfinished work of the civil rights movement and needed to understand why so many Black citizens and even political leaders viewed the drug war as essential to the survival of their community.

 

We talked in depth about the simultaneous over- and under-policing of crime, and the ways in which mass incarceration results from small, distinct steps taken mostly at the local level. It’s a testament to the nuance he brings to his book that it was cited by both Clarence Thomas and Sonia Sotomayor in a recent Supreme Court case.

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Episode Transcript

Speaker 1 (00:02):
Hi, I'm Ethan Nadelman, and this is Psychoactive, a production
of I Heart Radio and Protozoa Pictures. Psychoactive is the
show where we talk about all things drugs. But any
views expressed here do not represent those of I Heart Media,
Protozoa Pictures, or their executives and employees. Indeed, as an

(00:23):
inveterate contrarian, I can tell you they may not even
represent my own. And nothing contained in this show should
be used as medical advice or encouragement to use any
type of drug. We're talking today about race and the

(00:44):
war on drugs, two things that are inextricably linked in
this country and many others. You know what I'm talking about.
Racist sentencing law is involving crack versus powdered cocaine or
the police stopping frisk policies that disproportionly affect young people
of color. But how the War on drugs came to
be and who supported it as a complicated history. Today's

(01:09):
guest is James Foreman Jr. Who wrote a book a
few years ago called Locking Up Our Own Crime and
Punishment in Black America, which landed up winning the Police
Surprise for General Nonfiction in eighteen and being listed on
all sorts of best sellers list. He's a distinguished academic.

(01:30):
He's been teaching at Yale Law School for the last
ten years. When he was younger, he came out of
law school and clerked at the Supreme Court for Justice
Sandra Day O'Connor. But after clerking in the Supreme Court,
what he did was relatively unusual, and it almost kind
of reminded me a little bit of Obama's story where
Obama leaves Harvard Law School and goes back to Chicago

(01:53):
and become a community organizer. And what James decided to
do was to go work at the Public Defense Years
Office in d C. This was in the mid nineties,
and so James, thank you so much for joining me.
Welcome to Psychoactive. And let me just start by asking
you why did you do that. I had gone to

(02:15):
law school intent on doing civil rights work. So when
I was in law school, I worked for the NUBLE,
a CP Legal Defense Fund for two summers, and I
really took a lot of classes that were focused on
voting rights and employment law, traditional areas that civil rights

(02:37):
law covered. But when I became a law clerk, one
of the things that became very clear to me. And
this is the early nineties, so we didn't have the
term mass incarceration, but it was very clear to me
that something terribly wrong and adjust was happening in our
criminal system. Because I was working for Judge Is both

(03:00):
on the Court of Appeals and then later the Supreme Court,
and we were faced with cases where when I would
read the underlying transcript, I would see clear evidence of
you know, legal malpractice, legal non performance. Lawyers just over burdened,
not able to adequately represent their clients, and people who

(03:24):
maybe some of them were guilty and getting longer sentences
they deserve, some of them may have been innocent, and
still we're getting convicted. People were getting represented by attorneys
that a three hundred, four hundred, five hundred cases at
a time, just getting shuttled through the process, and the
appellate courts, the courts that you go to an appeal,
weren't willing to do anything about it. Their position was, well,

(03:46):
you got a trial, you had a lawyer, you had
a warm body. That's good enough. And as I looked
out at the world, I thought, well, what can I do?
And it felt to me like working in that system,
that criminal justice system, which is what we called it
at the time, was the most important civil rights work

(04:07):
I could do. And so even though it wasn't really
talked about as civil rights work at the time, it
felt clear to me that it was. And the d
C Public Defender Service where I went to work, which
was only about a mile from the Supreme Court in
terms of the offices, although very different in terms of

(04:27):
decor and and that sort of thing, but it was
one of the leading public defenders offices in the country.
So the chance to go work with a group of
lawyers that included people like Charles Ogletree and Angela Davis,
people who really set the bar for what counted as
excellent representation, was just something that that I couldn't pass up.

(04:50):
Mm hmm. Well, you know, let's just set a broader
context here. So when you started doing this in d C,
it's the early mid nineties, and you know, in eight
when there was a kind of lull between Nixon's drug
War and then the drug War of the eighties, there
were basically five hundred thousand people behind bars in the

(05:10):
United States in federal and state prisons and local jails,
of whom about fifty thousand were there for a drug
law violation. By the time you get to the early
two thousands, we've gone from five hundred thousand people behind
bars to over two million people behind bars. We've gone
from having an incarceration rate that's kind of average for

(05:31):
the world having one that is astronomically greater, in fact,
the highest in the world. And among the people behind bars,
we've gone from fifty thousand locked up on drug charges
to five hundred thousand for whom a drug law violation
was the principal offense. And that five hundred thousand doesn't
even count all of the hundreds of thousands who get
reincarcerated on parole and probation violations connected to drugs. And

(05:54):
it doesn't even count the people committing crimes of you know,
prostitution or petty theft to support to drug habit And
it doesn't even count the people involved in the drug
business who are getting involved in violent crimes that are
as a result of the prohibitionist approach to drugs. So
you're talking about a huge part of the prison population
and jail population that's locked up in one way or

(06:15):
another for either a direct drug glove violation, or something related.
And when you break it out, you know, I was
teaching at Princeton, living in New Jersey, and then I
moved to New York and those two states. At that
time lad the country, something like fifty of new admissions
to prison were for drug glow violations. The only place

(06:37):
that was higher than that was Washington, d c. Where
a substantial majority of all the people being sent to
the jail in prison there were for a drug glow violation.
And there you are, as a public defender working in
the midst of this. I mean, what did it feel like, Well,
we felt like warriors for justice. When ever you're a

(07:01):
minority group, you know, whether it's you know, what the
early abolitionists would have felt, or people in the civil
rights movement. And I know because that both my parents
were in the movement. My mom came and visited our
office and when the first thing she said was, wow,
this reminds me of a movement office. And she was
talking about the early sixties and SNICK, the Student Non

(07:22):
Violent Coordinating Committee where she was a member. So we
we had that kind of righteous indignation, certainty that we
were fighting an unpopular cause, but a just cause, and
that was the feeling that we had. Now having said that,
we also knew our position was unpopular, right, So we

(07:44):
knew all of the statistics that you've just mentioned. I mean,
we were working as public defenders at a time when
those statistics were being compiled. So I was going into
courtrooms and facing judges and prosecutors, probation officers, social workers,
bailiff's court martials who would all look at your client

(08:08):
as you're the one that's bringing down the community. You're
the one that is causing so much harm and degradation.
You're the one that has to be punished. You're the
one that has to be banished. So we believed we
were right. But I'm not gonna lie. I mean, it's
hard to work in a context when you see every day, um,

(08:29):
people being sent to prison for long periods of time,
some subjected to, you know, unjust conditions. I mean, it's
hard to have a client who's addicted, who wants help,
but there's a year long waiting list for heroin treatment
programs in the community, and the only way that she

(08:49):
could get treatment if she was going to ever get some,
and it wasn't even very good, but the only way
she could get a shorter waiting list. Was after she
had been arrested and was facing sentence. I mean, think
about that. What is it like to live in a
community where if you know you're an addict and you
call the government and you say, I want help. I
don't have any money, but I want to help, I

(09:11):
want treatment, and they say, okay, here, take a number,
will call you back in a year to a heroin addict.
But go out to the corner, sell something to feed
your own addiction. Go sell five bags so that you
get to keep one which you can then use. Then
you get busted, then you're facing a maximum of thirty years.

(09:34):
So we'll spend hundreds of thousands millions of dollars to
lock somebody up in that era when we wouldn't even
invest enough to open a treatment facility for much less
money to serve their needs. So we're working in that
context and that environment, and it's hard. It is exhausting
to face up to that injustice every day and to

(09:57):
carry that burden with you and to know that as
hard as your fighting, you lose more than you win.
M Oftentimes, even back then, to the extent there was
treatment available almost the only way to get it if
you were poor was basically through the criminal justice system.
You know, there might be diversion programs. There were the
emergence of these drug courts and things like this. There

(10:17):
was pretending to provide strugtury me behind bars, but if
you didn't have the money to pay for it, that
was gonna be where it was gonna happen. Now I
remember that, you know, here I'm teaching a prince in
the late eighties early nineties, beginning to advocate. I'm surrounded
by a lot of my you know, generally liberally politically
minded colleagues, and what I see going on there is

(10:37):
there's sort of abandoning basic liberal values when it comes
to the drug war. And if I asked why, I
think there were basically two reasons. One was freaking out
about their kids, right. It's the way in which the
war on drugs is oftentimes justified as one great big
child protection act and therefore will pay any price, bear
any burden, lock up as many people if it's just

(10:58):
gonna make our kids a tiny bits. And the second part,
which was more subtle in some respects, at least in
their minds, was that the people getting locked up weren't
our people right that when you looked at pictures of
who was going to prison, it was overwhelmingly black and
brown people. I mean, I remember we started advocating to

(11:19):
reform the Rockefeller drug laws in New York, these draconian
drug laws, and nent of all the people getting locked
up were black and brown, even though that was vastly disproportioned,
it was much smaller percent or actually involved. I mean,
you just saw this pervasive kind of otherism. There's no
way that Americans would have endorsed this kind of mass

(11:41):
incarceration approach if, in fact, most of the people going
to prison were white. How did that? I mean, here
you are, living, in some respects the only majority black
jurisdiction in America. It's not quite a state, but you know,
I mean, what was that like for you in something
in that type of context. Yeah, you know, it's an
important point, and I and and I would love to

(12:03):
hear your thoughts at some point on how you felt
like you were able to shift the narrative with your
colleagues at Princeton. You know, you're sort of using those
as a stand in for this part of the community
that is both wealthy and whider um and therefore somewhat protected.
How did you get them to care? Because they now

(12:24):
do care, They now do understand the drug war is
an issue. I was working in a in a different context, right,
I was. I was having conversations with a different group
of people than what you're describing, because I'm a black
lawyer operating in a majority black city. As you say, uh,
and the dynamic there the politics around the drug war,

(12:48):
even though it ended up leading to a similar set
of policies and practice, Right, even though d C passes
draconian laws and mandatory minimums and like I mentioned, a
man maximum of thirty years um for selling even a
small amount of of heroin um or cocaine, the motivations
are more complicated, I think in the black community, and

(13:11):
a little bit different than what you described, which was
sort of a view that, well, this isn't happening to
our children, because in the black community people know it
was happening to their children. Now, there is a little
bit of a class story that we need to layer
in here, right, which is that the black elites who
are elected to office and who run government agencies do

(13:35):
receive some level of protection by their class status. But
they don't receive total protection right there Still, for example,
subject to the police officers doesn't necessarily know um their
class background, and maybe doesn't even care if they do
know UM. So there they received some level of protection,
but they're not nearly as protected from the ravages of

(13:57):
the drug war. Then, for example, the white colleagues you're
describing in Princeton. But another piece of the story in
a majority black community is that there was this sense
that even though members of our community were being targeted
and being locked up, they were doing things that were

(14:21):
wrong and we're harmful and we're damaging to our community,
and they had to pay the price. It might not
be fair that a white kid in New Jersey could
carry drugs or even distribute drugs by sharing them with
classmates or even selling them to classmates and get away

(14:43):
with it. That might not be right. But what's happening
in our neighborhood, what's happening in Anacostia, what's happening in Shaw,
what's happening in parts of DC that are being deeply
affected by the drug trade. That has to be police
and it has to be punished, And so maybe they
should send more police out to Princeton to make this equal.

(15:06):
But they shouldn't stop setting police Because I voter, citizen, grandmother, shopkeeper, parents.
I still want to be able to walk to school
in peace and in safety. I don't want shots ringing
out at all time of the day and night. I
don't want my kids to be offered drugs on the

(15:26):
way to school. I don't want to see a group
of fifteen year old guys standing on the corner who
need to be in school at eleven am and aren't
in school and are obviously selling drugs, Like that's not
fair and that's not safe, and that's not right, and
they need to be punished. And then there's one more
thing that I just want to put on the table,

(15:47):
which is that in the black community, that push towards
punitiveness as a way of protecting ourselves is also matched
by a desire for a deep investment in what we
might call root cause solutions. Those same black voters that
want longer sentences or want the more aggressive policing, they

(16:08):
also are asking for more investment and treatment programs, more
investment in and education, more investment in after school programs.
They're frustrated that the Recreation Center closes at four pm
when it should be open until eight nine pm. They
want the city to be spending money on those things.
They want the federal government to be spending money on

(16:30):
those things. So they're asking for more of everything, more policing,
more prosecutions, but more investment in social services as well.
And what we get in the nineties is not all
of the above, right, what we get is one of
the above. We get this unilateral focus on law enforcement, police, prosecution,

(16:51):
prisons as the solution. So those are some of I
think the complicated dynamics that we need to layer in
when we understand how it was that black communities came
to be behind some of these tough laws. Yeah, I mean,
I mean, James, you know, it was a curious phenomenon
for me because, I mean, even when I started writing

(17:12):
and speaking about this, you know, at the height of
the drug were in the late eighties, the racial elements
to this stuff, the fact that the origins of the
drug laws were too in many rays were racist. I mean,
if you look at the origins of the cocaine laws
in the South, or the ways in which marijuana laws
were directed in Mexicans, or the antiopium laws at Chinese,
so the origins of that were apparent to me. Um.

(17:33):
It was also a history here when during alcohol prohibition,
I mean, some of the leading champions to prohibit alcohol
oftentimes were people from the black church, the black community
who saw the devastation of alcohol in their communities and said,
you know, let's support alcohol prohibition. And then, of course,
where do the prohibition laws land up being disproportionately enforced

(17:53):
is in black communities and against black people. And I
see all this going on, but I'm not really in
a position Shin, as a young white academic, to be
hitting the point of the racism of the drug war,
in part because if I tried that, people coming from
black community is saying who are you, white professor? Ideally

(18:14):
professors saying this sort of stuff. Do you have any
idea what crack cocaine is doing to our community? Don't
you understand we need this tough stuff, we need this.
And I would sometimes say, well, you know, sometimes it's
a matter of tradeoffs. Sometimes maybe you need if you
want more of the good stuff that you're talking about,
the investment in communities, one needs to find ways to
spend less on the law enforcement side. But those arguments

(18:36):
did not start to really get traction until the mid
to late nineties. Yeah well if if if then, I
mean I think not until later. Well, you know, I'm
just thinking about in June. I saw there was a
recent Supreme Court decision with Justice Thomas, the most conservative
guy in the court, writing it. And then you have
you know, Justice so do Mai or the most liberal

(18:58):
who is no choice but to sign on because the
law is pretty clear. But both of them are quoting
your book in their decisions to make a different argument.
Oh yeah, I see what you mean. When you're when
you're putting the date in the mid nineties, you're really
talking about within the black community specifically. So yeah, so
that that opinion that was fascinating. Justice Thomas was trying

(19:20):
to recount a particular history of black support for the
kind of laws that were at issue, that were that
were being discussed in that case, right, mandatory minimums and um,
some of the crack cocaine distinction, and you know, broadly speaking,
he was making the point, which is correct, that many

(19:40):
members of the Congressional Black Caucus supported mandatory minimums in
the eighties. Uh, that many leaders in the black community
called crack the worst thing to hit us in slavery,
which is actually a title of a chapter in my book.
So he's making the point that listen to say that

(20:00):
these just have a single, you know, racist origin is
to misunderstand the history. And Justice Thomas was in d
C in the nineteen eighties. He was reading the same
you know, black papers and other newspapers, and black media
and and black speakers in the broader media who were

(20:21):
making these claims that that crack cocaine was so damaging,
and he draws on the book for that purpose. And
then Justice, so to myor, says well, okay, yeah, but
that's only part of the history. And then she expands
it out to the nineties and she says, look, here's
the thing you need to know. By the nine nineties,
when the racist impact and the racial impact of these

(20:44):
laws started to become clear, many of the black elected
officials who had supported these laws in the eighties, now
by the mid nineties were opposing them. And we're pretty consistently,
pretty uniformly saying we need to end these mandatory minimums,
we need to eliminate the crack cocaine distinction. And she

(21:05):
makes the point which we talked about earlier, which is, yeah,
they wanted tougher laws even back in the eighties, but
they also wanted all these other things, all these other
investments that they weren't getting. And a bunch of reporters
called me that day and said, you know, check this
out to justices are citing your book and for opposite conclusions,

(21:26):
and you know who's right. And what I said to
them was, you know, this isn't gonna be satisfying to you.
And but they're both right that they're correctly using the book,
and I believe correctly using the history for different points.
And I do agree with you that by the nineties,
certainly by the late nineties within the black community, there

(21:47):
was a growing understanding, at least among experts I wouldn't
say had broadened out into the general population that whatever
the motivations had been in the eighties, now we were
starting to see the terrible negative impact on the community.
M by just for our audience. When James referred to

(22:07):
the crack cocaine disparity in the mid nineteen eighties, Congress
past legislation where they basically said that possession or sale
of small amounts of crack cocaine will get you the
same penalty as sale or possession of one hundred times
as much powder cocaine. So you could get five to
ten years behind bars mandatory minimum for possessing five grams

(22:31):
of crack cocaine, it would take five hundred grams of
powder cocaine, and by and large, you know crack cocaine.
The people getting locked up for crack cocaine possession and
sale were typically black, and those on powder were more
likely to be white or sometimes Hispanic. So that's the
disparity we're talking about there, you know, James, I should
say from where I was sitting, right, So I pop
out in the late nineteen eighties. I write a series

(22:51):
of articles and prestigious journals. You asked how I began
to move some of my colleagues. So I published a
piece in the liberal journal Foreim Policy, in the conservative
General Public Interest, and then in the you know, uh,
prestige publication Science, all basically saying the war on drugs
is doing more harm than good. And probably the person
I'm debating more often than any other one back then
is Congressman Charlie rangle right, and he's the famous Harlem congressman.

(23:16):
And you know, the the you know, the successor to
the famous Adam Clayton Powell. He's chairing this Lick Committee
are Narcotics, And he and I are going at it
on Nightline and on you know McNeil, Lair Report and
NPR and ABC and stuff like this, and he's trying
to mock me as the white professor saying this stuff.
And I'm basically going at him about how he is

(23:37):
one of the biggest problems with American drug policy. Jesse Jackson,
same thing. You know, he's declaring himself the leader, he
is the general or on drugs. I think you mentioned
that Wrangle said he was the general too. They both
they both wanted to be the general in the War
on drugs, and and Wrangle had pushed through some of
the most draconian policies. And mind you, it wasn't just
on criminal justice stuff, right, you also had on needle exchange,

(24:02):
where the public health people were beginning to say do it.
And then when you see is huge opposition within black
communities in New York City, Mayor Dinkins becomes mayor, succeeding
a conscience shuts down the one little trial needle exchange
program and the Congressional Black Caucus initially opposes, you know,
needle exchange, but the transition happens most rapidly among black

(24:25):
political leadership. I mean, that's where you see they essentially
lead beginning in the mid nineties, whether it's on needle exchange,
whether it's on sentencing reform that. And it's where you
see oftentimes the younger Black leaders, the newer, younger members
of Congress, and also with the state legislatures who were
challenging the older generation. Right. And so that's where we

(24:45):
begin to get some actual momentum. And I should say
there were exceptions, because what was pivotal when I started
speaking out in eight was you had in Baltimore, you know,
a new mayor, former chief Prosecutor, Kurt Schmoke, who's steps
up at the Conference of Mayors basically saying the war
on drugs is doing more harm than good. Right. You

(25:05):
have on James Baldwin speaking up in eighties six saying
we gotta legalize drugs because you keep it this way,
it's gonna be against black people. But I mean, I
remember how Kurt Smoke bravely making this case as the
as the black mayor of a majority I believe Black
City is just being clobbered by both white and black

(25:25):
members of the community and leadership and just seen as
this kind of devian voice at the time. You know,
you get to the mid nineties and it begins to
evolve in a way that opens up the potential to
begin to make some reforms possible, at least at the
state level. Man, that is so interesting your perspective. I wish, honestly,
I wish I had been able to find access to
some of those debates between you and Wrangel that in

(25:48):
the in the eighties, because that would have been really
rich for material for the book. But Smoke, right, Kurt Smoke,
you're so he There should be an awar I don't know,
are there. I don't know if there's a Kirch Smoke Award.
But now in this era, when there's an understanding, a
really different understanding about drugs and there's more of a

(26:10):
consensus that goes in that direction, somebody should honor him
because you are so right. You are so right. Actually, James,
the only award, the only word there is, is given
out by the Drug Policy Alliance for you. Yeah, I mean,
I think one of the bravest politicians in America. You know,
he would have made for a great U. S. Senator
for Maryland. And I think one of the things that

(26:32):
got in his way was the fact that he had
been so courageous on this issue. We'll be talking more
after we hear this ad. I want to say in

(26:57):
your book, you talk about going to your students and
getting these kind of blank stairs, and you say, without
taking heroin into account, one cannot understand African American attitudes
towards the drug war. And you go back into a
history which very few people know about how and why
the experience around heroin in the sixties and early seventies

(27:18):
shape things. And I wonder if you could elaborate on that. Yeah, absolutely,
I think that if my students today, I mean, if
they know anything about this era that we're talking about, um,
they know maybe a little bit about the eighties and
nineties and Crack, right, maybe some of them have watched
the Wire. Um, but you're right, there's very little um

(27:42):
understanding about heroin in the nineteen sixties. But Heroin really
devastated black communities in some analogous ways to what Crack
would do uh in the eighties. Um and and and
I think set the stage for some of these um
punitive black attitude. Some of the political leaders that we're

(28:04):
talking about, they were in college and shortly after college
in the nineteen sixties, so they were very much alive
during this period of time. So in the nineteen sixties,
the homicide rate doubled and in some cities tripled. And
at the same time, at the same time as homicides

(28:25):
rates rates were increasing, you also saw a massive influx
of heroin. For a complicated set of historical reasons. Some
of it had to do with UM exposure in Vietnam
and and folks coming home, but for all the sort
of different reasons, the bottom line is that you started

(28:48):
to see, especially in the late nineteen sixties, you started
to see a huge uptick in heroin use and heroin addiction.
So in d C, which are the numbers that I
know best, they test everyone entering the DC jail every year,
and in the early nineteen sixties nineteen sixty three, about

(29:10):
four of the people who are entering the jail are
testing positive for heroin. And by the end of the decade,
less than ten years later, um it has become it
has risen to almost forty and so you get this
massive increase, right, you get this explosion, and it's then
associated also with a lot of a public presentation of

(29:32):
drug You so you get syringes that are being left
in front of homes and businesses. You get people that
are nodding off on park benches, You have people that
are gathering on on stoops and some of them are
strung out. And you get neighbors again focusing on d C.
But the same story you could tell in every black
community across the country really kind of deluging their elected

(29:56):
representatives saying you gotta do something about all of these
heroin addicts are public spaces, don't feel they don't feel
safe anymore. And I don't want to walk into my
backyard and my back alley and find like multiple dirty syringes.
Nobody wants to live like that. And so there's both
a rise in heroin use, a rise in heroin addiction.

(30:20):
There's a demand for a response, and there's also a
deep distrust in the black community which goes back for
centuries of government interventions and some government responses. So some
of the Nixon administration, which did many, many, many terrible

(30:42):
things on many topics, including on drug policy. One little
small thing that they were doing right at the time
was they actually were investing in methodone and other heroin
treatment centers. But what there was deep resistance to some

(31:02):
of these centers from a very distrustful black community, including
black nationalists, who said, listen, we're fighting for our people's freedom.
We are fighting a revolution, and we don't want our
people to be strung out on heroin supplied by the

(31:22):
pusher on the corner or Method one supplied by the government.
Both of those are ways of keeping us down, their
ways of keeping us unconscious, and their ways of keeping
us out of the fight that we all need to
be engaged in. We need all of our faculties to

(31:43):
be able to fight for freedom and fight for justice
and fight for civil rights. So you have this anti
drug from the left perspective, you have a distrust of
government perspective. You have neighbors and regular folks just freaking
out about this problem, and at the same time, you
have the very beginnings of what will become right the

(32:08):
prison prosecutor uh police approach that would end up being
the dominant approach by the nineteen eighties and nine nineties.
And it's like sitting there ready to seize on this opportunity,
and that's that's ultimately what happens. M hm. You know,
essentially you bring up the method on issue, James. I mean,
it was oftentimes referred to in black communities as the

(32:29):
white man's chemical bracelet, as another form of social control.
And I think what part of what helped to change
that was when there was a fellow named Dr Benny prim,
a liberal Republican and probably the leading black man in
drug treatment circles nationally, who eventually entered the federal government
Health in Human Services under the first President Bush. But

(32:50):
I think when he starts speaking up, that really moves
things in New York and elsewhere. And I'll tell you
another little story. It must have been I don't know,
mid late nineties. I get a meeting with Reverend Calvin Butts,
who's the head of Abyssinian Church in Harlem, one of
the most famous black ministers in the country. And people say, Ethan,
whatever you do when you go up there, you know,

(33:11):
you can talk about the arrest and Carsonarry don't talk
about methanon, but what the hell? And so I'm meeting
with him and I raised the issue of methanon and
he says to me, let me tell you something. Let
me tell you something about meth and I'm going, okay,
here it comes, chemical bracelet, all this sort of stuff.
And he says, do you know that some of the

(33:31):
most respected members of my church have been on methanon
for many years? Do you know that some of the
deacons in my church or on it? Do you know
that many of their cases, not even their family knows.
I just know because of my pastoral privilege. And then
he says to me, could you imagine what it would
be like if they felt free to speak up in
church and say, I am a person who has been

(33:53):
on methanon for many years and nonetheless have a family
and a job in leading good night. Can you imagine
the transformation that would happen? You know. It's another point
you raise in your book, which is that the people
who are being victimized by the war on drugs oftentimes
it's just young black men just being shipped into the system,
but it's even people who are getting that's not a
nintenance treatment, who are intimidated that their voices are not heard.

(34:17):
And that that's changed a lot now, But back then,
there was no sense that such a person was even
entitled to have a voice. Yes, the issue that you
raise is exactly right. This is true throughout America. It's
also true in the black community, which is that some
of the people who are most directly harm, most directly affected,

(34:38):
whether they are struggling with addiction, whether they're people who
are incarcerated, their voices aren't value. Their voices are very
diminished when we talk about the problems with the system
and what to do about it. I first saw this
up close in d C. In the ES, the Public
Defender Service had people who would o lobby city council,

(35:02):
and we were very reluctant to send our clients and
their families to advocate on some of these issues, whether
it was a prisoner's right question or whether it was
a stop in frisk kind of question. And we didn't
we didn't have an infrastructure to train people how to
become effective advocates. It just wasn't a thing. And one

(35:25):
of the reasons why that was the case is that
there was a sense that our clients and their family
members were so stigmatized and ridiculed. I talked before about
how when they went into the courtroom and everyone looked
at them as the enemy. So how are we going
to send them down to the city Council to argue

(35:48):
um on this issue. Weren't we just gonna lose all
all credibility? And they often wouldn't have wanted to go
testify because they would have felt all that scorn and
shane and stigma being heaped upon them right by everybody
of the city council hearing who's saying, well, you know,
you want to come and talk about this problem with
prison conditions, but let's talk about what you even did

(36:11):
to be in prison in the first place. Or if
it's the mom and you want to talk about disparities
and then the drug law, well let's talk about why
your kid was even out there in the drug game
to begin with. What kind of mom are you to
have allowed that to happen? Right? You can just imagine
what a haunting and terrible experience that would be for
for somebody. So in the nineties, in the two thousand's

(36:32):
until really fairly recently, still too much, but but it
is changing. Those voices are left out of the conversation,
and so you know, you get all those community members
that I described to are outraged about the person that's
nodding off on the bench and leaving the syringes or
selling drugs on the corner. But nobody who's actually being

(36:52):
directly harmed by the system's response is getting their voice heard.
So that, to me, I think is one of the
biggest things that has changed but still has to continue
to change. Um And in particular, what I believe is
that organizations that care about these issues have to continue
to develop the advocacy skills people really need to be

(37:17):
trained and supported to become highly effective and to build
on their life experiences and to be able to translate
those into ways that persuade at the city, county, state,
and national level. M hm, Now it makes sense. So
here I'm gonna ask you a very challenging question now
in part because I'm asking you to pack a lot

(37:38):
into this. So there are three significant points you make
in the book. I mean, many others, but three that
I kept highlighting. One was you talk about the simultaneous
over and under policing of crime in black communities. The
second is you point out that mass incarceration, the rise
of mass incarceration is not the results of some great,

(38:00):
big campaign being mandated from on high, but a result
of small distinct steps with all sorts of different players.
You know, nobody fully being responsible almost reminded me of
the way you described it is the way we think
about the financial meltdown in housing and loan and all
that in two thousand and eight, right where everybody's making
small steps, nobody is ultimately responsible and it all kind

(38:21):
of adds up. And the third point you make is
while we tend to focus on Washington, d C. In
the federal government sense of the word, and the White
House in Congress and all that, in fact, most of
criminal justice and most of the war on drugs is
operating at the local level. So now I wonder if
you could pollo three together and sort of analyze that

(38:44):
this is gonna make the question really tough. There's already tough, brother,
it's already tough. Keep going, I know, okay, But what
really captive met in the book was you talk about
the journey of Eric Holder from his years his U
S attorney in in d C. To his years as
Attorney General from Obama where he becomes the driving force
in Obama's second term basically for criminal justice and drug

(39:08):
law reform. Just you know, provide our audience with a
sense maybe through the lens of Eric Holder as a
as a key character in all of this. Yeah, absolutely, um, So,
I mean, I think Eric Holder in some ways is
a perfect character to to to understand and the book
in a lot of ways, and to understand especially the
trajectory from kind of the then to the now. You know,

(39:31):
you've in a number of your comments you've talked about
growth and evolution among black representatives that and elected officials
that you've worked with over the years, right, whether it's
Wrangel or Jackson, and and I think Holder is a
really great example of this. So Holder is a local
elected official in Washington, d C. So he has all

(39:52):
that power that we're talking about that comes at the
local level initially, right. And you know a eight percent
of prisoners in this kind tree are in state and
local prisons, and of law enforcement in this country is
state and local. So that's why, Um, for listeners who
care about this issue, the place that they want to
be focused on is their state capital. The place they

(40:15):
want to be focused on is at the city level.
Those are much more important than whether or not the
federal government passes this law or that law on this topic.
It really is. And Holders an example of that. So
he's a local elected official, uh, and then he gets
becomes an appointed official as the chief prosecutor in the city.
And Eric Holder is in a lot of ways, I

(40:38):
think what we would call in the black community traditionally
and my parents generation would call a raceman. And by
which I mean he is somebody who deeply, passionately, like
just every fiber in his body, he cares about black
people and he wants the black community to thrive. And
in the eighties and nineties, he's looking out at the

(40:59):
world as a judge and as a prosecutor, and he
sees crack as the worst thing that's hit us in slavery.
He sees the body counts, the homicide rate um getting
two levels that had never gotten to throughout history. And
he gives a speech uh in the early saying, listen,
black people lost our freedom under Jim crow and we

(41:22):
are losing our freedom now. But what's gonna keep us
from our freedom now is in segregation. It's not Jim Crowe.
It's crime and violence and people are afraid to leave
their homes. Right. So he draws a direct analogy from
Selma to Washington, d C. In the early nineties, and
he launches a very very aggressive stop and frisk vehicle

(41:47):
campaign operations sees fire that leads to black drivers, black motorists,
and especially young black people getting stopped and searched and
frisk at overwhelmingly disproportionate numbers. And he does it because
he wants to get the guns off the street, right.
He does it because he wants to create a safe community.

(42:09):
And the tools that he feels like he has at
hand is law enforcement. So he really does help to
build the system of mass incarceration that we now know
and called by that name. Having said that, by the
time he gets into the federal government in the Obama administration,

(42:29):
he's still a race man. And now he's looked at
this accumulated evidence and he's horrified. He doesn't tell the
story the way I'm telling it. He doesn't identify his
own actions in the way that I am, and elected
officials and people in public life typically you know, don't
do that. As academics, we say, oh, you know, I
messed that one up. I was wrong. I make a

(42:50):
mistake that's not really like how elected officials really roll.
But regardless, he does then take a series of actions.
This time from the federal government standpoint to try to
undo some of the damage um that has been caused.
And my thing is, we're all going to make mistakes.
I have made mistakes. We're going to take physicians that

(43:12):
are wrong. To me, what's really important is are you
willing to with an open mind except and evaluate new evidence,
see when you're wrong, and act in response to try
to shart a new course forward. And I think Holder
can be very proud of the fact that he has

(43:33):
done just that. Now. Again, none of the individual actions
that he took, either in the nineties or more recently,
created this system or going to dismantle it. So when
people say to me, well, what's the most important thing
to do, I say, it's all important, right, It's all important.

(43:54):
The question is finding where you fit in right? Where
can you how have influence? And every single person in
this country, every single person who's listening to your podcast,
they do have power, They do have the ability to
help us chart a new course forward. It might be

(44:16):
helping to legalize substances in the state that they're in.
It might be ending disparities, ending mandatory minimums we still
have a lot of them. It might be getting clean
slate legislation passed so that once you've served your time,
your record is wiped clear and you get a chance
to re enter society as a full citizen. The precise

(44:39):
laws and policies that need to change are going to
vary from county to county, city to city, state to state,
but I can guarantee you that there's work to be
done in every single city, every single county, in every
single state. And I think it's really up to us.
Two sees that moment, you know, when Black Lives Matter

(45:02):
really emerged so rapidly a few years ago, five six
years ago, And for me, what was inspiring about it
was it was as if there was a new civil
rights movement that at last was not reluctant to embrace
the drug policy reform agenda, treat drugs as a health issue,
pro needle exchange of method on legalized marijuana, and mass

(45:23):
incarceration in all of these sorts of things. And I
think part of it is when you look at the
black people getting killed by cops. You know, you look
at George Floyd right in Minneapolis, or or before him,
you know, Philando Castile in Minneapolis. So you look at
Michael Brown Ferguson, which set the whole thing off for
Lecon McDonald in Chicago, or Terence Crutcher and Tulsa right,
or even the Eric Garner case involving a guy selling

(45:44):
Lucy's in New York. In every case which you have
is the cops saying, oh, it only happened because they
were on drugs. So there's this constant way in which
the drug pieces being somehow used to excuse or legitimize
a killing of a typically are in black man. And
so there's something inspiring about that that's forcing the issue.

(46:05):
And the question will be I think, to some extent,
as a younger generation of black activists and allies begin
to age up, begin to have their own kids, begin
to freak out about their own kids, will they land
up becoming more conservative as well, or will they keep
to the kind of youthful enthusiasm um that they've demonstrated
over recent years. What do you think? Wow, that's why

(46:27):
I'm not really in the prediction business. But I do
really like how you frame that question. I think, yeah,
I'm not I'm not in the prediction business, but I
am you know, I'm in the hoping business. The thing
that I hope that some of this new generation will
focus on is really trying to build up alternative structures

(46:50):
and alternative approaches for how to respond to really what
are real and genuine and pressing social problems. So to me,
the libertarian take on drug policy has never had any
appeal to me personally and what I mean by that,
And this gets a little bit to your question about

(47:11):
sort of over policing under policing, which is that in
the black community, whether you're talking about drug policy, whether
you're talking about poverty, whatever, it is that you're talking about,
these issues harm black communities especially, And this is what

(47:33):
a little bit was behind right when Wrangle was making
fun of you or attacking you in the eighties, even
though I think he was wrong right on that the
ultimate issue. Part of where he is coming from, and
part of where a lot of the people that I
write about are coming from, is they're like, look, this
problem of addiction, this is real. Do not minimize it,

(47:56):
Do not say well, it'll just like let's just do
nothing and it will be fine. That for me anyway,
I know there's a lot of people and may probably
you have a lot of listeners that are like down
without analysis I'm not. I believe that whether we're talking
about drugs or whether we're talking about violence, I don't
care the issue that you're talking about in the black

(48:16):
community because of a history of racism that goes back
to slavery, which we have in this country for longer
than we haven't. Because of that and Jim Prow and
all of the inequities that persist to this day in
the black community, we need a robust, affirmative, trauma informed,
community based, and government led and government supported set of responses.

(48:42):
So I don't want people to call nine one one
and send a police officer when there's somebody who's strung
out on the corner. But I also don't want there
to be no number to call. That's why I'm inspired
by cities where activists are developing alternative systems three one
one systems where you can call a number and not
get a police officer, but you can get a social worker,

(49:06):
a mental health worker, a counselor who can come and
respond because that person might be in need and they
might want help. And I'm not for coercion, but I
am for building up a very very robust network so
that everybody can access services as quickly and efficiently and

(49:26):
with as much care as we would all want for
our child. So my hope is that this new generation,
alongside the critique of what happened over the last fifty years,
right alongside that, will be an equal commitment to building
a new set of approaches going forward. Let's take a
break here and go to an ad. One of the

(50:04):
things that also came out in your book was you
talked about I think while you were still working in
the Public Defender's Office, you're involved in starting this charter school,
the Maya Angelo School, educating people in the juvenile justice system,
And that seems exactly like the sort of thing one
needs a tremendous proliferation of. I mean, is that what
you're talking about, And do you think it's possible for

(50:24):
these things to be multiplied a hundred of thousandfold and more. Well, yes,
but it requires a significant investment. The Maya Angelo School,
I mean, it's a good example of the kind of
thing um that we are going to need, and we're
gonna need more government support for to do programs like this.
So when I in the nineties, when I was a

(50:46):
juvenile defender in d C. And I was very frustrated
by the fact that even when I would win a
case and my client would be protected from the worst
parts of this system, they would go back to the
same nothing that they were involved in beforehand. There they

(51:07):
oftentimes had been already pushed out of the traditional public school,
and they were they were those kids that I talked
about before that people were upset about. Who are fourteen
fifteen years old who were outside at eleven am on
a weekday, And people are like, why aren't they in school? Well,
sometimes they weren't in school because they had been pushed
out of the regular school. Sometimes they weren't in school

(51:28):
because they had already been tracked into the least engaging classes.
I was so frustrated when I would go to visit
schools with some of my juvenile clients and I would
see these alternative schools with outdated curriculum and no you know,
functioning equipment, and and no useful, meaningful textbooks. I mean,

(51:48):
it was it was a kind of thing that if
your child were put into that environment, you'd be sitting
in in the Board of Education like you'd go on
like a hunger strike out of out rage that they
considered this adequate education for your child, but because the
kids are poor, because the kids are of color, because
their parents, although they care a lot about education, don't

(52:11):
have the resources or the access to influence public officials.
Nobody was objecting. So we said, well, what if we
start an alternative school with a job training piece. Because
so many of my clients what they said was, you know,
I want a job, I want good teachers, I want
small classes, but I also want a chance to work
and make money. Because I'm poor, I have no money.

(52:34):
I can't take my girlfriend to the movies on a weekend.
And so David Dominici, who was a lawyer in d
C um really kind of envisioned this and together we
put it together with lots of support from my colleagues
at the Public Defender's Office and lots of people around
d C and we created what was initially a school
for twenty kids. We now have a couple of campuses.

(52:57):
We run the school now inside DC's juvenile prison. And
our basic idea is that the kids that need the
most and the best should get it. We normally give
them the least and the worst. But what if we
actually gave them our best. What if we gave them
small classes and engaged teachers, and a robust curriculum and
opportunity to work outside of school. What if we really

(53:19):
invested in them and try to create a sense of
family in the school and a sense of high expectations
while we supported them along the way counselors and mental
health workers because many of them are suffering with trauma,
sometimes never diagnosed. What if we did that and we've
now done that. But let me just go back to
the point where we started. It's expensive. We're still not

(53:41):
adequately funded um by public sources, so we have to
try to raise private money, which is hard. So, yes,
programs like ours can transform lives. They can change the
statistical trajectory, they can change individual trajectory. They can help
communities heal and thrive. But they can only do it

(54:02):
if we're willing to say, you know what, that kid
that's fourteen years old and has been arrested or has
dropped out of school and has four or five years
behind and whose parent is incarcerated, they're gonna need more support,
and that's going to cost more money. But that's the
kind of thing. You're absolutely right. It's one example. There
are many more. That's the kind of infrastructure that I

(54:25):
think that we need to build in communities, in black
and brown communities, in poor communities of all colors across
this country to to to give people the opportunity that
they deserve. Well, you know, I guess you know, I mean,
just to conclude all this here, we are now in
a period where in the last couple of years, the
number of shootings and homicides has increased in many parts

(54:49):
of the country, where the fear of crime, especially violent crime,
is growing um where people are beginning to to freak out.
The rates are, of course dramatically lower than they are
back in the late eighties and early nineties, but people
were getting accustomed to having very low rates. At the
same time, we're also in an era were unlike under Reagan,
Bush and Clinton, you know, where governments are spending more

(55:13):
money to some extent. Then I look politically, I mean,
you brought this up in your book that just a
few years ago. You know, you still have public opinion
polls showing a substantial majority of blacks, not as much
as whites, but substantial majority of blacks still saying they
want more policing. And you see, you know, black voters
overwhelmingly especially older voters supporting Joe Biden over the competitors

(55:35):
in the Democratic primary who are much more supportive of
criminal justice reform. When we look forward these next few years,
are we going to see some shutting down? You know,
nothing freaks people out and makes it conservative like fears
of rising crime. What's your take on these trends right now?
I think it's hard to know, obviously, you know, it's

(55:56):
hard to be sure. And and one thing that we
do know is that of all the things that we
don't want to be in the prediction business about its
crime rates because nobody would have predicted a twenty year
steady decline starting in around two thousand, late late nineties.
You just couldn't have known that was going to happen. Um.

(56:17):
I do think in the world that I operate in
and what I see with with teenagers and young people,
the impact that the pandemic has had cannot be overestimated
in terms of driving whatever is happening right now. Having
said that, what I do believe is that we aren't
going to go back because I think that there is

(56:39):
a consciousness around some of those mistakes and they impact
that they have had. I think if you look for example,
at President Biden's speech that he gave in response to
rising crime rates. It was as different of a speech
as as a Biden would have given years ago as
you could ever possibly imagine. It was addressing the same topic,

(57:02):
crime is going up and what are we gonna do
about it? But there was nothing in that speech about
building more prisons. And in fact, there was a lot
in that speech about community based responses to crime, violence interruption,
violence prevention, hospital based interventions. There's a proposed five billion

(57:24):
dollar investment in community based violence prevention. These are credible
Messengers programs. These are programs like Cure Violence, where they're
going out into the neighborhoods, they're working with young people.
When a shooting happens, they're going to the hospital, they're
talking to the person who was shot and the family
was shot because they don't want a retaliation. This is

(57:46):
one of the things that we we do know about
violent crime in particular, is a huge percentage of it
is retaliatory. So if you can interrupt that initial retaliation,
then you can start to have isolated incidents as a
posed to what you and I saw in the eighties
and nineties, right, which is incident, retaliation, retaliation, retaliation. All

(58:07):
of a sudden, you've got ten twenty thirty shootings instead
of one. So I I don't believe. Uh, this is
where you know I said before, I don't do predictions,
but I do do hope. I am a hope for person,
and I don't believe that we are um going to
make the same that that similar set of mistakes. It
may be that some of the momentum gets slowed, there's

(58:29):
no doubt about it. But I think that we've made
too much progress, uh to ever go back to the
days when you were on Nightline UM talking about harm
reduction and Charlie Wrangel was telling you that you were
a naive liberal and what we needed to do was
have more police and more prosecutors and more prisons. Yeah.

(58:50):
You know. One of the things that I think you
you point in the book that distinguished the crack era
was the ways in which the war on drugs also
became a war against violent crime, much more so than
with drew in the hair Own era. And I think
part of the success of the drug policy reform efforts
over the last twenty years has been that it's more
and more disentangled that the people have become more sophisticated

(59:11):
understanding that. You know, one reason we need to legalize
marijuana is so that it just stops being a pretext
for cops arresting vast numbers of young people. One reason
we need to expand access to treatment is because we
want to reduce the violence on on the streets and
drug markets. So I think there's a more sophisticated perspective
on this stuff today, which really is promising for the future. James,

(59:33):
I want to thank you too, because I thought your
book was a very brave and nuanced and thoughtful book,
and I think it's a book of historic significance. I
think it amply deserved the Politz there, and I just
wish you all the best on your continuing engagements to
try to promote more sensible policies from your vantage points.
So thank you, very very much. Thank you. Psychoactive is

(59:55):
a production of I Heart Radio and Protozoa Pictures. It's
hosted by me Ethan Naedelman. It's produced by Katcha Kumkova
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Elizabeth Geesis, and Darren Aronovski. For Protozoa Pictures, Alex Williams
and Matt Frederick for iHeart Radio, and me Ethan Nadelman.

(01:00:16):
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(01:00:40):
You can also email us as Psychoactive at protozoa dot
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if you couldn't keep track of all this, find the
information in the show notes. Tune in next week. From
my conversation with sex call in this Dan Savage, drugs

(01:01:02):
are something I recommend to long term couples frequently. You know.
I think ecstasy saved my marriage. Terry and I were
at a real low point and we got a cabin
on the Pacific coast and took a weekend away and
did eat. I recommend pot all the time, a little
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