No democracy has ever incarcerated as many people as the United States. To get its incarceration rate down to the global average, the US would have to release 3 in 4 people in its prisons today.

The effects on Black Americans have been especially severe — Black people make up 12% of the US population but 33% of its prison population. In the early 2000's when incarceration reached its peak, the US government estimated that 32% of Black boys would go to prison at some point in their lives, 5.5 times the figure for whites.

Contrary to popular understanding, nonviolent drug offenders make up less than a fifth of the incarcerated population. The only way to get its incarceration rate near the global average will be to shorten prison sentences for so-called 'violent criminals' — a politically toxic idea. But could we change that?

According to today’s guest, Professor James Forman Jr — a former public defender in Washington DC, Pulitzer Prize-winning author of Locking Up Our Own: Crime and Punishment in Black America, and now a professor at Yale Law School — there are two things we have to do to make that happen.

Links to learn more, summary and full transcript.

First, he thinks we should lose the term 'violent offender', and maybe even 'violent crime'. When you say 'violent crime', most people immediately think of murder and rape — but they're only a small fraction of the crimes that the law deems as violent.

In reality, the crime that puts the most people in prison in the US is robbery. And the law says that robbery is a violent crime whether a weapon is involved or not. By moving away from the catch-all category of 'violent criminals' we can judge the risk posed by individual people more sensibly.

Second, he thinks we should embrace the restorative justice movement. Instead of asking "What was the law? Who broke it? What should the punishment be", restorative justice asks "Who was harmed? Who harmed them? And what can we as a society, including the person who committed the harm, do to try to remedy that harm?"

Instead of being narrowly focused on how many years people should spend in prison as retribution, it starts a different conversation.

You might think this apparently softer approach would be unsatisfying to victims of crime. But James has discovered that a lot of victims of crime find that the current system doesn't help them in any meaningful way. What they primarily want to know is: why did this happen to me?

The best way to find that out is to actually talk to the person who harmed them, and in doing so gain a better understanding of the underlying factors behind the crime. The restorative justice approach facilitates these conversations in a way the current system doesn't allow, and can include restitution, apologies, and face-to-face reconciliation.

That’s just one topic of many covered in today’s episode, with much of the conversation focusing on Professor Forman’s 2018 book Locking Up Our Own — an examination of the historical roots of contemporary criminal justice practices in the US, and his experience setting up a charter school for at-risk youth in DC.

Rob and James also discuss:

• How racism shaped the US criminal legal system
• How Black America viewed policing through the 20th century
• How class divisions fostered a 'tough on crime' approach
• How you can have a positive impact as a public prosecutor

Get this episode by subscribing: type 80,000 Hours into your podcasting app. Or read the linked transcript.


Producer: Keiran Harris.
Audio mastering: Ben Cordell.
Transcriptions: Zakee Ulhaq.