Criminal Justice and the Mattering of Lives

By Tuerkheimer, Deborah | Michigan Law Review, April 2018 | Go to article overview

Criminal Justice and the Mattering of Lives


Tuerkheimer, Deborah, Michigan Law Review


CRIMINAL JUSTICE AND THE MATTERING OF LIVES

LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK AMERICA. By James Forman Jr. New York: Farrar, Straus, and Giroux. 2017. P. 239. $27.

INTRODUCTION

These are confusing times for criminal justice reformers. Although opposition to mass incarceration runs deep and wide,1 the conventional wisdom advances solutions that are woefully inadequate.2 The state-by-state picture presents in similarly ambiguous fashion, with several jurisdictions moving to adopt less draconian punishment regimes,3 while elsewhere, harsher sentences gain ground.4 And just as local prosecutors who embrace progressive platforms of change are winning election in increasing numbers,5 Jeff Sessions, our chief law enforcement officer, promises a return to the tough-on-crime policies of old.6 All told, the current landscape is characterized by considerable flux-meaning that this is a pivotal juncture for criminal justice reform. In order to move forward, the ambition of a newly reconstructed justice system must be defined.

Against this backdrop we can fully appreciate the contribution of James Forman's7 extraordinary book, Locking Up Our Own: Crime and Punishment in Black America. Forman tells the gripping origin story of increasingly punitive responses to crime in Washington, D.C., while relating these particulars to corresponding trends in urban centers across the nation. Forman's story focuses on African American actors-politicians, judges, prosecutors, police officers, and ordinary citizens-normally left out of standard accounts of the growth of the carceral state. Placing their lives front and center, Forman compassionately chronicles the devastation inflicted by crime, and then by punishment, on black, largely poor communities. This is a masterful recounting of how the very communities eventually ravaged by mass incarceration possessed a stake-an understandable, legitimate stake- in catalyzing a criminal justice response to crimes against them, and how this effort resulted in terrible unintended consequences.

Part I summarizes Forman's depiction of this tragedy and its connection to "a central paradox of the African American experience: the simultaneous over- and under-policing of crime" (p. 35). Without giving short shrift to either dimension of this paradox, Forman lays bare the ways in which black community members' experiences of crime during the 1970s and '80s were inexorably linked to structural inequalities-primarily race and class. As Forman demonstrates, these marginalized citizens were undervalued; they endured too little by way of a state response to their crime victimization, along with too much of a state response when it came to their punishment for crime perpetration.

Forman's tale resonates with a long, shameful history of states failing to protect vulnerable populations from violence, placing in stark relief the "mattering" of certain lives more than others. Since Reconstruction, subordinated communities have endeavored to harness the criminal justice system toward recognition that their lives have worth. These efforts persist to this day, making Forman's insights regarding the effects of underenforcement especially salient to ongoing contests over whose lives matter.

Part II explores three areas in which legally marginalized groups currently struggle for state recognition of their injuries: gun violence, sexual violence, and hate crimes. These case studies in the overlook of harm reveal a close nexus between criminal law enforcement and the relative valuation of communities, including the individuals that comprise them. Over time, claims for protection on behalf of these groups have generated moves to ratchet up criminal law sanctions. Yet, as has become terribly clear, incarceration and its effects reflect and perpetuate inequality-meaning that increased sanctions are the wrong default outlet for equality-based demands on the state by crime victims. Some outlet is essential. …

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