James Forman Jr., son of civil rights activists, says that African-American leaders seeking to combat drugs and crime often supported policies that disproportionately targeted the black community.
TERRY GROSS, HOST:
This is FRESH AIR. I’m Terry Gross. My guest James Forman Jr. has written a new book called “Locking Up Our Own: Crime And Punishment In Black America”. It’s about the era of mass incarceration and tells a part of the story that is rarely focused on - the role of African-American political and community leaders in advocating tough-on-crime measures as ways to stop drugs and guns from destroying black communities. Many of those leaders, he says, didn’t appreciate the impact of the choices they were making.
The most direct victims of the resulting harsh penalties have been the poorest, least-educated black people. Some of those people were Forman’s clients during the six years he served as a public defender in Washington D.C. Doing this work was his way of contributing to the civil rights movement in which his father was a pioneer. James
Forman Sr. was the executive secretary of SNCC, the Student Nonviolent Coordinating Committee from 1961 to ‘66 and was one of the leaders of the 1964 Freedom Summer, organizing for voting rights in Mississippi. James Forman Jr.’s mother, Constancia Romilly, was a member of SNCC. Her mother was British journalist Jessica Mitford.
James Forman, Jr. is now a law professor at Yale Law School. He clerked for Justice Sandra Day O’Connor, and as he’ll describe later, it was a challenging period for him because he disagreed with many of her positions.
James Forman Jr., welcome to FRESH AIR. So your book starts with you defending a 15-year-old back when you were a public defender. This was in Washington, D.C. - a 15-year-old who had pleaded guilty to possessing a handgun and a small amount of marijuana, enough to use but not to sell. You argued for probation. The judge gave your client what you describe as the Martin Luther King speech. What is the speech?
JAMES FORMAN JR: So this speech is where the judge starts off by saying, you know, Mr. Forman has told me that you’ve had a hard life and you deserve a second chance. Let me tell you about hard. Let me tell you about Jim Crow - because the judge, Curtis Walker - he had grown up under Jim Crow, so he knew that era. And he proceeded to tell Brandon about what that was like to grow up with separate water fountains and unequal access to jobs, et cetera.
And then he wrapped up, and he said, so I know you’ve had it hard, but people fought, marched and died for your freedom. Dr. King died for your freedom. And he didn’t die for you to be running and gunning and thugging (ph) and carrying on and embarrassing your community and embarrassing your family. No, son, that was not his dream at all. So I hope Mr. Forman is right. I hope you turn it around. But right now actions have consequences, and your consequence is Oak Hill. And he locked him up.
GROSS: What do you object to about that speech?
FORMAN JR: I object not so much to the speech because that message that people have struggled for your freedom - right? - that is a message that is so powerful in the African-American community, right? We use that in our homes and in church, in barbershops. But - and it’s appropriate I think even sometimes in court. It wasn’t that I objected to the speech as it was I objected to the sentence. I objected to what followed.
The problem for me was that then he locked him up. And for me, it was so - it was a stunning moment because I had come to court as a public defender, imagining myself as the civil rights figure in the story. You know, I was doing the job of a public defender because my parents had met in the civil rights movement. They’d met in SNCC, Student Nonviolent Coordinating Committee, and I was now a descendant of that movement. I had had all kinds of opportunities.
But at the same time, I could see that other African-American men, other black men in my community and black women were being incarcerated at unimaginable rates. So I was taking the job of defending Brandon because I thought it was an extension of the struggle. And now the judge was invoking Martin Luther King for exactly the opposite outcome. So that for me was the power and the drama I guess of that moment.
GROSS: That story also helps frame your book’s main question, which is, why have African-Americans in the justice system like this judge taken the position of a kind of harsh approach to sentencing?
FORMAN JR: Yeah, that’s exactly right. That case - I mean when that case ended and Brandon was sentenced - and I went back to see him in the cell block, and there were three other young black men there with him. And I thought about his mother and his grandmother. But it was also clear to me when I thought it through that the judge wasn’t the only one who disagreed with us because in that courtroom, there were a number of other African-American actors. The prosecutor was African-American. The courtroom clerk was African-American. And I started to think about the fact that the city council that passed the gun and the drug laws that Brandon was sentenced under was a majority African-American council. The police force in D.C. was majority black.
And so I felt like at that moment - and I had other moments like it, but that one was especially powerful. I felt like there was a story that had to be told of people like the judge and people like the police officer who made their arrests or the city council who passed the laws. What were the pressures that they were facing, right? What were the constraints that they were under? And what were the choices that they made?
I wanted to try to tell that story, you know, compassionately and humanely and put myself - this was one of the hardest parts of writing the book - is putting myself in the shoes of somebody who is making choices that I thought in retrospect - and in the case of the judge, I thought in the moment - were wrong.
GROSS: So just to back up a second, what kind of sentence would you have liked to see the judge give your client compared to what the judge actually did?
FORMAN JR: Well, I would have liked him to put Brandon on probation. It was his first arrest. And I’m somebody who believes that our prisons, whether they’re juvenile prisons or adult prisons, should be reserved for people who are true threats to society. And I don’t think that Brandon was one. He was a kid growing up in a tough neighborhood. He made a mistake. He picked up a gun that he shouldn’t have picked up. He told me that he had it for protection. Even if that’s not true, even if he was starting to maybe get sucked into a group of kids in the neighborhood that was selling drugs or something along those lines - even if that was true, I didn’t think a place like a juvenile prison was the place for him.
But the other thing is, it’s not just the decision, right? My frustration is not only with the choice to put him in prison, but it’s also with all of the other aspects of the system because the judge - judges will often answer your question with, well, he needed to be locked up because the other alternative was probation. But they don’t really confront the fact that the place that he was being sent - Oak Hill, this juvenile facility - was a dungeon. It was a violent place with drugs and violence rampant, with no functioning school, with no mental health programs or job training programs.
And so I don’t think - when we think about our criminal justice system, I don’t think we can imagine choices in isolation. The judge makes that decision, but we don’t think about the quality of the place that he’s being sent, right? And so what I’m trying to argue in the book is that we have to look at this system as a whole, and we have to look at all of its dysfunctions. And only until we do that will we really understand the damage that it’s doing to people’s lives.
GROSS: You know, since the larger question in your book is asking us about how so many leaders of the African-American community came out for tougher measures against crime helping to lead this era of mass incarceration, you’re also arguing against the claim that so many African-Americans focus on police crimes against black people, but they don’t focus on black-on-black crime. You’re trying to dispel that idea.
FORMAN JR: I think when you look at the book, you will see page after page, year after year, decade after decade of agitation, of pleading, of demanding, of saying, I don’t feel safe on my streets - not from police officers. That’s part of it. But mainly I don’t feel safe on my streets because there’s drug dealers on the corner. I can’t take my kid to the park after school because they’re shooting. And they’re leaving dirty syringes in the park. And nobody’s cleaning them up.
I demand that you, the leadership of my city - D.C. in this case, but black leaders nationally face these same demands - I demand that you do something about it. So that claim - right? - that we hear from conservatives overwhelmingly that black America only cares about police violence - it couldn’t be more untrue. And the next time somebody says it - Rudy Giuliani’s on television, you know, still saying it. I just want someone to put this book in his face and say, stop saying that. Stop repeating that lie. Here’s proof that it’s a lie.
GROSS: But you say, you know, many of the same people who were advocating for better policing of African-American communities and, you know, more help in protecting corners from drug dealers - these people were also asking for access to better jobs, better schools, better housing.
FORMAN JR: People want more police and more prosecutors. Sometimes, some people even say we need more prisons. But they also say, we need more job training. We need more housing. We need better schools. We need funding for drug treatment, for mental health treatment. We need a national gun control policy. We need a Marshall Plan for urban America. We need the federal government to do for black communities in America what it did for Europe after World War II - to rebuild, to reinvest, to revitalize. That’s the claim. But instead of all of the above, the black community, historically, has gotten one of the above. And the one of the above is law enforcement.
GROSS: Let me reintroduce you here. If you’re just joining us, my guest is James Forman Jr. He’s a former public defender who’s now a professor at Yale Law School. He’s the author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” We’ll be back after we take a short break. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you’re just joining us, my guest is James Forman Jr. He’s the author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” He’s a former public defender in Washington, D.C., and is now a professor of law at Yale Law School.
Is there an initiative you can describe that you thought started out, like, either idealistically or very practically minded as a way to honestly try to help with crime in the African-American community, to protect African-Americans from crime, that ended up being used in such a way as to actually hurt the African-American community?
FORMAN JR: Absolutely. There’s more than one. I mean, the first one probably that comes to mind is the pretext policing or investigatory stops initiative unveiled in the early 1990s and led by, engineered by, supported by Eric Holder, who was the first African-American U.S. attorney in Washington, D.C. Most Americans now know about stop and frisk. Investigatory stops or pretext stops are kind of like the automobile version of those. The police are going out. They’re targeting people who they think may have guns, and they’re using the traffic laws, which are very broad - they’re using the traffic laws as a pretext.
So I see you driving one mile an hour, five miles an hour over the speed limit. I’m going to pull you over. You stop at the stop sign for too long. I’m going to pull you over. You stop for too short. I’m going to pull you over. Your winters are - your windows are tinted too dark. I’m going to pull you over. And under Holder’s leadership, the D.C. Police Department - they start pulling over cars. And their goal is to get guns. And that’s a worthy goal. But the way they unveil this policy, when you consider other aspects of our society and of our criminal justice system, lead to many terrible outcomes.
So when they pull the car over, they ask for consent to search. Over 95, 98 percent of people give consent to search. Most people don’t think they can not consent. And one of the people that I represented in a case, a woman named Sandra Dozier - she was driving in one of the neighborhoods that was targeted by this pretext stop regime. She had a small amount of marijuana - $15-20 worth - in her car. She’s pulled over. They start asking her about guns. She says, I don’t have any guns. They say, well, we can search - right? - just to make sure. And she’s thinking, OK, well, this will get over quickly, and I can’t really say no, so yeah.
They search. They don’t find any guns, but they do find the marijuana. And she says, I have a job. Please don’t arrest me. They don’t want to make this marijuana bust. That’s not - they’re looking for guns, so they don’t arrest her. They give her a citation to appear in court a couple weeks later - pretty reasonable. She’s able to go to work the next day, keep her job. Then she gets to court. The U.S. attorney’s office no-papers the case. They dismiss it. They don’t want to prosecute this $10-15 worth of marijuana.
So in one sense, you would say, well, the criminal justice system has been fair sort of. But then, to get off probation at her employer - she’s a probationary, a new employee - and she has to have a certificate of clean record to be able to get off probation and become a full-time employee. She goes to the courthouse to get the printout, and the arrest somehow shows up. She presents it to her supervisor, who’s a decent guy but says, we have a policy. It’s not my policy. If you’re arrested while you’re on probationary status, we can’t hire you. You lose your job. So she was fired.
And that’s how I meet her because she comes to my office to tell me this story. And I think maybe I can undo it. So I get the guy on the phone, the supervisor, and I speak to him. And he’s an understanding person. But he says, there’s nothing I can do. It’s company policy. We can’t keep her on the job.
GROSS: So here’s somebody who loses their job, which is their way up, the way to - their way to a better life. And they’re losing their job because they were caught up in a search for guns, which they didn’t have. So they’re just kind of collateral damage, in a way.
FORMAN JR: Absolutely. And there’s so many people like them. And when Sandra Dozier left my office that day, she happened, accidentally, to leave behind some files, some paperwork. And when I look through it, she had her certificate of employee of the month at an internship that she had gotten. And she had her high school diploma. And she had gone to a high school where very few people - you know, with a 50 percent dropout rate. So one version of her story - right? - is that she’s somebody with grit. She’s a striver. She stood on lines for - at job fairs - for hours in the rain. She’s finally gotten a job in a community that has too few of them. She’s doing great at her job. Her supervisor’s a fan of her work ethic.
But because of this pretext regime to look for guns and because we target that regime at the poorest low-income neighborhoods, which have the highest crime rates - again, justifiable in some ways. You can see why somebody like Holder would’ve thought that made sense. But down the line, you get thousands, and across the country, hundreds of thousands and millions of Sandra Doziers, of people who, because of unequal enforcement choices, have ended up so much worse off than they ever would’ve been otherwise.
GROSS: You point out in your book that 95 percent of American prisoners are in state, county and local jails. Around 85 percent of law enforcement officers are state and local, not federal. Most crime policy is set by state and local officials. So you say, you know, mass incarceration is going to have to be dismantled piecemeal and locally like the way it was constructed. But nevertheless, I want to know what you think of the direction the Trump administration is heading in, in terms of law enforcement.
FORMAN JR: Well, just one correction - I think the number is 88 percent of prisoners are state, county, local, not 95 percent. But either way, it’s a very high number and over 85 percent. I think it’s 88 percent. And that’s why I do believe that this has got to be a local fight. But you asked about the Trump administration. And there’s no question that Donald Trump and Jeff Sessions are leading us in a disastrous direction on criminal justice matters. Jeff Sessions, in particular - I mean, I don’t think President Trump is especially focused on this issue on a day-to-day basis. He occasionally gives kind of vile speeches on the topic.
But Jeff Sessions - this is his work. And Jeff Sessions is somebody that came up in the ’80s and early ’90s and was taught a particular way of thinking about how to fight crime. And while lots of people have evolved in their thinking - somebody like Eric Holder has evolved in his thinking on criminal justice issues - Jeff Sessions has not. You know, he’s stuck in this mindset that is blind to the damaging consequences that these incredibly aggressive approaches have to communities of color, in particular, but to communities nationwide. And he continues to say things that are patently untrue.
You know, recently, he said in a speech that marijuana is only slightly less awful than heroin. Well, that’s wrong. And it’s wrong in a deadly way. There were 13,000 deaths from heroin overdoses last year. And there were zero from marijuana. So even to begin to compare the two drugs is inane. But I do think - coming back to the first part of your question - I do think that we shouldn’t be misled. So people that were focused on this issue, wanting to make the criminal justice system more humane - right? - less brutal, more forgiving - we should always remember that the fight is going to be at the local level. And there, we continue to win.
So the same election that brought Jeff Sessions also brought something that’s a first in my lifetime, which was - a number of progressive prosecutors at the local and county level ran in races and won in Florida, in Texas, in Alabama, in Denver, in Chicago - Kim Foxx in Chicago - and then just six weeks ago, Larry Krasner, a civil rights attorney in Philadelphia. I mean, a civil rights lawyer didn’t run for local prosecutor 10 years ago. And if they did, they barely got any votes. And yet he won.
And he won on a campaign, and these others ran and won on campaigns of, we’re locking up too many people. And my predecessor has helped to convict people wrongfully. And we need to rethink the war on drugs. And mandatory minimums are an obstacle to justice, right? These kinds of claims you never heard from prosecutors 10 or 15 years ago. And so that’s the direction I actually think the country is continuing to go in, even as Sessions and Trump try to push us in the other direction.
GROSS: My guest is James Forman Jr, author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” After we take a short break, we’ll talk about growing up the son of a prominent civil rights leader, who, in the ’60s, led the group SNCC, the Student Nonviolent Coordinating Committee. And we’ll talk about clerking for Justice Sandra Day O’Connor while disagreeing with many of her positions. I’m Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I’m Terry Gross, back with James Forman Jr., author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” It’s about the role of black political and community leaders and advocating policies intended to protect black communities from drug and crime epidemics which helped lead to the era of mass incarceration. Forman spent six years as a public defender in Washington, D.C., and is now a professor of law at Yale Law School.
I’d like to talk about you. You have an incredibly interesting background. I’m talking about your parents here. So you’re the son of James Forman, who is the former head of SNCC, the Student Nonviolent Coordinating Committee, which, in the ’60s, was one of the most important civil rights groups. It was SNCC that Andrew Goodman, James Chaney and Michael Schwerner were volunteering for when they were murdered in Mississippi during Freedom Summer. Your mother, Constancia Romilly, was the daughter of the journalist and anti-fascist activist Jessica Mitford, who is famous in America for her book “The American Way Of Death,” which is an expose of the funeral industry. So those are two really interesting parents to have.
FORMAN JR: Yeah.
GROSS: Did they stay together? Did you grow up with both of them?
FORMAN JR: No, they didn’t. They divorced when I was 7 years old. But I did grow up with both of them in the sense that they both remain very involved in my life. So my brother and I - we were raised by my mother. But we spent summers with my dad, and we would spend Christmas holidays with him, as well. And they were together in one other way, as well, which is that they never separated emotionally, in the sense that they stayed connected around us. So in my entire life - I mean, my dad has passed away now. My mom is still alive. But in my life, I never heard my dad say one bad word about my mother. And the reverse is true, as well.
GROSS: You talked about the Martin Luther King speech at the beginning of our interview and how frustrating you found that inspirational speech. It was like, Martin Luther King, like, fought and died for your freedom. And what are you doing with your freedom? You know, you’re acting like a thug. And, therefore, you’re going to pay the consequences. This is a speech you heard a lot of judges give to your clients when you were a public defender. Did your father have a version of that speech that he gave you?
FORMAN JR: So there’s really - I should say there’s one judge in particular that gave that speech. And it was - and he’s the judge that I write about in the book. So - but you would hear kind of the - some of those themes uttered throughout the courthouse. But there was one who was kind of famous for that speech in particular. But in terms of my dad - no, that was the - maybe - you know, I hadn’t thought about it until you just put the question that way.
But maybe one of the reasons I found it so frustrating was that I was raised by somebody who knew Dr. King well and marched with him and strategized with him and fought with him and disagreed with him and, you know - and made up with him and all of that. And he didn’t have that speech. I never heard him saying that about the kids in the neighborhood - you know, that maybe we’re not in school in the middle of the day. And you were wondering, like, you know, why isn’t that kid in school? But, no, he didn’t have that speech at all.
I mean, one of the things that was amazing about my father was he got the ways in which kind of oppression changed over time. So he really got how the kids that I was representing in D.C. were locked out of society and in ways - you know, in ways similar to how people were locked out of society in the Jim Crow years, even if a lot of the details were different. But there were also some similarities. And he, I think, felt that. And he raised us to understand that. So, no, he didn’t have any of that speech - just the opposite, just the opposite.
GROSS: After your father left as the head of SNCC, the group considered excluding white members. Now, your mother was a white member of SNCC. Do you know if your father ever got heat for marrying a white woman?
FORMAN JR: Oh, I know that he did. I know that he did from things that my mom, in particular, told us about years later. It wasn’t - it wasn’t anything that my dad shared with us, I guess, in a way of saying that it was a mistake. But it was hard. I know that that was a huge point of pressure on their marriage. I mean, there were other things that were happening.
They were in the early 1970s right before they split up. That was also the period when, you know, the FBI was putting incredible pressure on civil rights groups through the counter-intelligence program - or the COINTELPRO program. And they were fomenting lies and distrust. So there was - they had a hard time in those years for lots of reasons. But I know, from my mom in particular, that that was one. And I know that that was very painful for her - you know, very hard for her, very hard for both of them, I think. Yeah. Yeah, it was hard.
GROSS: Since you’re the product of their relationship, did the pressure that he was experiencing to not be with a white woman - and did all the distrust in that part of the civil rights movement of white people affect your own identity?
FORMAN JR: I don’t think so. The day to day that I was being raised with was a more universal approach to thinking about humanity. I was raised more in that way. And I guess the other thing that’s important to know about my own identity, as I think about it, is a decision that my mom made when I was in seventh grade, which I think in some ways is the most important decision that she made raising me and my brother - period - which was she decided to move from New York City to Atlanta. And the reason that she made that decision was she felt like we were living in a mostly white world in New York.
And I had gotten accepted into this high school in New York - Hunter College High School, which was a 7th-through-12th-grade school, which was a very prominent school. But it was almost all white. And she felt like - she was worried about our racial identity. You know, I’m light-skinned. My brother’s a little bit darker than me. But depending on who I’m with, you might - there’s people, particularly people who aren’t black, who might not even know that I am black. And my mom moved us to Atlanta in part because she had lived there in the ’60s with my dad. So she knew folks there. She knew there was a strong black community in Atlanta. And she wanted us to grow up in a black environment.
I mean, she told us later. She didn’t tell us at the time. But she told us later, I wanted you to grow up in a city where when you opened the newspaper in the morning, and you looked at the headlines of the local government and local business leaders, you were looking at pictures of black people. She wanted us to be raised in that environment because, I think - I know from having heard her talk about it in years since - she thought it would form and shape our racial identity - not just how we thought of ourselves - right? - that we thought of ourselves as black - but also how we thought of the black community because the amazing thing about growing up in Atlanta is there is no one way to be black in Atlanta, right?
In a city that has so many African-American people, I would go to school, and the jocks were black. The nerds were black. The artistic - you know, the artsy kids were black. The band-camp kids were black. The thugs were black - like, everybody was black. So there wasn’t a way to perform that went along with being black. And that, I think, was very powerful and liberating for me as a child because it meant I got to be who I was, which was a nerdy kid. And nobody thought, oh, well, you’re not black if you’re reading books.
GROSS: So I’m thinking what different worlds your parents came from. Your father grew up in Mississippi. And at the age of 8, when he didn’t say, like, good morning, ma’am or thank you, ma’am to a shopkeeper, he was threatened with being lynched, whereas your mother grew up in England before moving to America. And I think she was - you know, Jessica Mitford was her mother. And I think she - her father I think was related with the nephew by marriage to Winston Churchill.
FORMAN JR: That’s right.
GROSS: Yeah, so it’s, like, really…
GROSS: It’s quite a contrast in terms of the two different sides of the family and what they were exposed to when they were growing up. So I’m just - I don’t even know what my question is but just thinking about being - you know, having two - such different kinds of family trees.
FORMAN JR: You know, it’s funny that you would ask that question because I’ve always thought of it as just the opposite. Like, I’ve always thought of there being more similarities in the family trees than differences. And I guess I’ll say why, which is, my grandmother - Jessica Mitford, right? - she grew up in this sort of, you know, kind of aristocratic landed gentry and, more importantly, kind of fascist family right before World War II. And she decided that she wasn’t going to support Hitler as many of her family members were but that she was going to go fight against and resist.
She joined - she went to Spain - right? - to fight against the fascists in Spain. And then she moved to the United States in the 1940s. And my mom was actually born in the United States. But my grandmother moved to the United States in the 1940s, and she became a communist. Why - because she saw the communists at the time as the people that were fighting for equality, in particular for racial equality.
So I’ve always thought of both sides of my family as freedom fighters, as people that see a kind of inequality in front of them and want to resist it. And so I guess you’re right if you think about it in the demographic way, right? If you think about kind of race and class background and region, they’re different. But if you think about it in terms of impulses - political impulses, they’re much more similar.
GROSS: Let me reintroduce you here. If you’re just joining us, my guest is James Forman Jr. He’s a former public defender who’s now a professor at Yale Law School. He’s the author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” We’ll be back after we take a short break. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you’re just joining us, my guest is James Forman Jr. He’s the author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” He’s also a professor of law at Yale Law School and a former public defender.
You clerked for Sandra Day O’Connor. I guess this is when you got out of law school.
FORMAN JR: Yes, yes. I clerked for a judge, William Norris, on the 9th Circuit Court of Appeals right after law school and then for Justice O’Connor the next year. And that’s a common trajectory - to do two clerkships in that way.
GROSS: Did you have a lot of political differences with her?
FORMAN JR: I did. That was a hard, hard year. She’s a wonderful person. And I loved how she treated me as an individual, as a clerk. She still to this day, you know, asks after my family when I see her. And she’s connected to her clerks in that way. She cares about us, and she cares about our success. But I disagreed with her on most issues that came before the court having to do with civil rights or criminal law and criminal justice. And…
GROSS: How would you handle that with her?
FORMAN JR: Well, she predicted it. So she asked in the interview - the last question she had for me in the interview was - she said, you know, from looking at your resume, it appears that you may disagree with me on some issues. And I’m curious to know from your standpoint how you would handle that as my law clerk.
And I told her that - what I ended up doing. I mean I told her that I will argue with you. I’ll tell you the truth about what I think. I will try to persuade you. But at the end of the day, you are the justice, and I’m the law clerk. And if I’m taking this job, I’m agreeing to help you do your work, right? I’m helping - if you decide to come out the other way and assign me the opinion, then I’ll write the best opinion I can for you.
GROSS: Did you have to do that?
FORMAN JR: And that’s what I told her. Yeah - oh, that’s what I told her I would do, and I did have to do that.
GROSS: So how hard was that…
FORMAN JR: I did have to do it.
GROSS: …To write an opinion that you didn’t believe in?
FORMAN JR: It was hard. But it was the job. The hardest part wasn’t even writing the opinions, though that was bad. But the hardest part was the death penalty because the way the Supreme Court works is that the different judges are responsible for different circuits. And Justice O’Connor was responsible for the 9th Circuit. And what that meant was if there was any request from somebody who was scheduled to be executed - a last-minute request for a stay of execution or a pause on the execution - it first had to go to that justice. And that meant it first had to go to one of that justice’s four law clerks.
So we knew from the day we started that every fourth night, we were potentially on duty for any stays of execution. And I only got one. There were only, I think, three or four from the 9th Circuit that year. But I was only on duty one night when somebody filed a last-minute stay. But what that meant was I had to call the justice, discuss with her the issues that were raised in the stay. And then she had to make a recommendation to the rest of the court. And then I had to circulate that recommendation.
And this was a case where the only real basis for the stay was if you didn’t believe in the death penalty, which I didn’t. And I told her that. And she said right, but what about bases that I might find, you know, colorable under law? And there weren’t any that I could see. And I presented it to her. And she said, well, write an order recommending that we deny the stay. So I wrote it, and I circulated it to all of the other justices. Their responses came back. And the request was denied.
And then I had to sign the order for Justice O’Connor. And then I had to walk the order to the fax machine, which is what we used then, in our marshal’s office in the middle of the night, knowing that it was going to be faxed to the warden in the state where the execution was scheduled to take place and that, upon receipt of the fax, they would go through with the execution. And I did it, and I just went home and cried for hours.
GROSS: So I can see how this was a very difficult year for you, like you said. Was it helpful to work with a justice who you disagreed with? Did you get insights into the opposing point of view that have been helpful - or to humanize the opposing point of view so you just didn’t see it as, like, the other point of view? You saw it as, like, an individual who you respected who had that point of view.
FORMAN JR: I think I’ve always had that orientation to try to understand the humanity behind people with whom I disagree. I don’t know if that’s - I don’t know if it’s from childhood or parents. But I’ve had it, and I think that that year did help because, like I said, I liked - I liked and like Justice O’Connor a lot. And I also saw, over time, how some of her positions evolved. You know, when I was clerking for her - was more in the middle of her career. And over the years, she became known as being somewhat more moderate in her approaches, right? And she ended up, you know, writing an opinion upholding affirmative action that might not have been so easy to predict years earlier.
And so I think that was also - has been important for me because I realize - in the individual capacity for change. You know, one of the things that’s odd about being a public defender is you’re constantly arguing to the world in the ability of your clients to change and that we shouldn’t judge them by one moment - right? - by one action. And I really try to take that into the rest of my life because I often find in, whether it’s political discourse or with students - you know, I talk to my students about this all the time. I say, you know, somebody’s going to say something in law school that you’re going to find incredibly offensive, and you have the right to be offended. But you also have to remember that’s one comment. That’s one statement. That’s not all of who they are.
And that’s - again, it’s what we do in court as public defenders. But I find that, you know, even people that are, you know, critical of the criminal justice system and who would be quick to say that in the context of representing a client - that, sometimes, we’re not as gracious or not as open-minded or - big-hearted, maybe, is the right word - when we’re dealing with people in the rest of our lives. And I really try. It’s not easy. I make snap judgments, too, and I start to write people off. And then I start to remind myself of how I’m constantly asking judges not to write people off. And so then I try to resist it.
GROSS: Well, James Forman, I want to thank you so much for talking with us.
FORMAN JR: Thank you.
GROSS: James Forman Jr. is a professor at Yale Law School and author of the new book “Locking Up Our Own: Crime And Punishment In Black America.” After we take a short break, John Powers has a dark thriller to recommend for summer reading. This is FRESH AIR.
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