The Yale Law Journal

June 2018

Who Locked Us Up? Examining the Social Meaning of Black Punitiveness

Critical Race TheoryCriminal Law

Locking Up Our Own: Crime and Punishment in Black America

by James Forman, Jr.

farrar, straus and giroux, 2017

abstract. Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public. Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being. The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow. In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates that many blacks supported aggressive anticrime policies that gave rise to mass incarceration. On the surface, this observation potentially complicates arguments that conceive of U.S. criminal law and enforcement as manifestations of white supremacist political power. Forman’s failure to provide a comprehensive analysis of the racist dimensions of punitive sentiment makes his research subject to such an interpretation. A deeper analysis, however, reconciles Forman’s research with antiracist accounts of U.S. crime policy. In particular, social psychology literature on implicit bias, social dominance orientation, and right-wing authoritarianism provides a helpful context for situating black punitive sentiment within antisubordination criminal law theory. These psychological concepts could link punitiveness among blacks with outgroup favoritism and in-group stigma that derive from structural inequality and antiblack social stigma. The social psychology of punitive sentiment, resilience of white supremacy, and conservative political ideology will likely present substantial barriers to the merciful approach to criminality that Forman proposes.

author. Associate Dean for Faculty Development, Stephen C. O’Connell Chair, and Professor of Law at the University of Florida Levin College of Law. J.D., Yale Law School; B.A., University of Pennsylvania. I am thankful for the thoughtful comments and feedback I received from Susan Carle, Angela J. Davis, James Forman, Jr., and Kenneth Nunn. I presented a draft of this Review at the UCLA Critical Race Theory Workshop. I am grateful for the comments provided by workshop participants, including Devon Carbado, who moderated the event. Jermaine Frey, James Graessle, and Niraj Thakker provided excellent research assistance. Finally, I am thankful for the assistance and patience of the Yale Law Journal editors.