Pushkin from Pushkin Industries. This is Deep Background, the show where we explore the stories behind the stories in the news. I'm Noah Feldman. There's no more pressing question facing the United States today, or really at any time, than the relationship between race, crime and incarceration. Today, one in every three young African American men is locked up. That's a moral crisis, and it's one that has troubled leaders in the United States, white and black for most of the last century and a half. To talk about this crucial question, I'm joined by Khalil Jiubran Muhammad. He's professor of history, race and public Policy at Harvard and he's the author of a deeply insightful and prize winning book called Condemning Blackness. He's one of the leading thinkers in the United States on the deep causes and potential solutions to what he sometimes calls the carceral state, the state that puts people in prison. Khalil, thank you so much for joining us. Glad to be here. So, Khalil, you're a historian. Your major book really a field changing book that came out almost a decade ago. Not quite No, that's a that's a good thing. I mean, when you transform a field, you know, it takes time for it to spread to everybody. The book's called The Condemnation of Blackness, Race Crime, and the Making of Modern Urban America. You showed in the book that this phenomenon of white people in the white power structure thinking of African Americans as criminals to be imprisoned, goes back way beyond that period. That there is no idyllic picture of nineteen fifties and sixties. The idyllic picture never existed in fact at all. With respect of these questions, you take us back to the period immediately after reconstruction or the failed reconstruction in the wake of the Civil War. Tell us a little bit about your core story there, about what fundamentally didn't happen after the end of slavery. Yeah. So the easiest way to think about the origin story is that for most of the last fifty years, Americans have been thinking about a racism in our criminal justice past that ran through Southern lynch mobs and convictly sing. And if you sort of pull the average white American on the street, they would say, yeah, that was a bad time in American history, even the Marchicket. Anyone to speak in favor of lynching today. Yeah, Like even the most red meat Republican you know is proud of the civil rights movement and it uses that moment and it is precisely a break point to say that in everything that happens now is about individual responsibility. But it turns out, because of the work that many historians have done looking at the South in particular, we know that that was an era when the criminal justice system did the work that chattle slavery once did. So people who had been enslaved and forced to use their labor on behalf of white slaveholders get arrested for petty or significant crimes, doesn't matter. They get put into chain gangs or prisons, and those become the kind of second rebirth, as it were, of slavery, Yeah, to use that metaphor. But more particularly their labor and their new civil rights, in particularly the right to vote, become contested to reign for their own autonomy as economic beings. Like do you actually get to own land and negotiate contracts that are mutually beneficial or at least fair to you? They answer kind of is no, because the more that you demand an autonomy and agency as a black Southerner one step out of slavery, the more likely you were to face the wrath of white property owners, which essentially was regulated by the criminal justice system. They just simply called the sheriff and say this person is a vagrant, arrest them, and then you might be subject to a sheriff's auction and sold back to the same person you were just negotiating a labor contract with as now a convict who has to work off their fine, and you might never work off that fine. So a really important part of that story that I think is not known to a lot of people who do understand that there was an era of segregation and Jim Crow laws that followed the failure of reconstruction is the component that involved taking African Americans who wanted to assert their rights that they in theory had and literally imprisoning them and through imprisonment, returning their labor to white landholders, to the white power structure of the South. That's right, And even something like felony disenfranchisement laws, which we just saw in Florida for example, come down out off the books, were born in this era as a way of again controlling the political autonomy of the black population that then was voting for the Republican Party and very much opposed to a lot of the most extreme forms of white supremacy that we're entrined in the Democratic Party of the One Party South. So there's no moment to your point, your initial point, in the post slavery period, when the notion of black criminality and the function of criminal justice are not deeply invested in controlling black freedom. So that's a story about Southern white control of mostly Southern African Americans. Not only is people's labor only momentarily given back to them an in theory, and then taken away from them through the criminal justice system, and I put them in quotation marks, but even the right to vote is then taken away on the theory that if you've been committed of a crime, you no longer have the right to vote. But your book is also really importantly a Northern story, a story about the part of the country where people like to tell themselves, or white people they like to tell themselves, well, that never happened. Jim Crowe did not exist in the Northern States. Tell us about what happens, especially as African Americans in larger and larger numbers begin to come north for jobs as part of the Great Migration. Yeah. So the reason why that backstory is so important is because it produced what I like to say, an artifact. And that artifact, that thing that came as a result of all this contestation, in all this criminalization of black Southerners, was a national census that pointed out that African Americans, who were only twelve percent of the general population, with thirty percent of the nation's prisoners. And so all of a sudden, overnight, you have this subjective fact, an actual fact that looks like black people have a crime problem because they're nearly three times overrepresented in the national prison statistics. And the question is what do we make of this? Why is this important? So let's really dig into this question of the census of eighteen ninety. You know, I'm one of those people who I've always been interested in American history, but when someone says the word census, my eyes usually glaze over. And reading your book, I was really hit that much like the upcoming census, which is much in the news because of the possible consequences of a citizenship question, the Supreme Court, in fact is going to weigh in on this sometime in the before at the end of June. I guess, much like the current census, which has real weight, real political controversy associated with it, the eighteen ninety census, which I myself had never heard of before. I don't think any of my great grandparents were in the country for that census, so I never bothered to look it up, really had a transformative effect on the way first scholars and the the general public thought about race and crime in America. So you mentioned this statistical result of the eighteen ninety census, disproportionate in theory representation of African Americans in prison right, African Americans twelve percent of the population, I think you said, and thirty percent nations prisoners. What was really going on there? There's there's a whole steep story here. Give us the essence of it. Yeah, the essence is that eighteen ninety was a perfect generational cohort moment. This is twenty five years after the end of slavery, and a lot of demographers, a lot of journalists, a lot of vested interest wanted to see how we're black people faring on their own. If you think of all the craziness that took place for wild eyed, radical white abolitionists to literally lay their bodies on the line in defense of black humanity for those who believed it. Others had other reasons. But nevertheless, if you take John Brown did exist, that's right, John Brown did so. If you take the purest motive of the abolitionist, they essentially argued that black people were no different than white people. And if you listen to Brian Stevenson today who says, we won the Civil War, but we would lost the narrative battle. In many ways, those wild eyed abolitionists lost the narrative addle eventually, because as soon as the eighteen ninety census came out, people look to that senses to then judge the health and welfare the fitness of the black population. They said, hey, well, sure, someone born in eighteen sixty six is now twenty five years old later, they're an adult. How are they faring. Oh, it looks like a third of the population of black people are now in prison as opposed to landowners or business owners, in other words, showing their productive capacity making a real contribution to America. And what that did is mask it masked all of that history on the ground that was happening that made those statistics virtually irrelevant. And I can just think off the top of my head, and you write about this a greater length in your book. Of things that would make those statistics highly misleading, even assuming they're correct, one that you talked about is length of prison sentence. How did that work? Yeah, Well, if as is true today, if Abrican Americans are serving longer time for the same crime, they're more likely to be in prison on the day a census, because the census is just a literal snapshot. It's supposed to be on one day, that's right, And so that's just one example. Or if a population over indexes for men, then their expected crime rates or in this case incarceration rate is expected to hire. Or if a population over index is for being young. So all those facts, and what about arrests, what about probability of being arrested? Well, every probably being convicted. You can imagine point after a point, every decision point within the criminal justice system, from police contact, to prosecution and to sentencing were all evident points for absolute discrimination being directed against black people. Now, the reason this has such an impact is partly that it's eighteen ninety and that's a kind of perfect storm moment for the birth of the American obsession with data with numbers, where we think the data say it, it must be true. I sometimes say that the words that make me most unhappy in English language are the words the three little words. The data shows that's right. So what was it about that moment that made people especially prime to say, well, hey, it's in the data, it must be true. Well, this is where your question about the North really matters, because one story of this period, in particularly the end of reconstruction, which happened with a presidential compromise in the election of the contested election of eighteen seventy seven, where miraculously Florida first shows up as a controversial state. Yeah, that's a that's a very strange one. The whole eighteen seventy six the election, Just in case you're wondering, the election was a tie, and then they figured it out by a very very complicated and strange political process with a special commission with Supreme Court justices and all kinds of shenanigans, and it ended up with Rutherford B. Hayes the first president ever to graduate from Harvard Law School. Not very memorable becoming president United State's. Luckily, our second president, Barack Obama did a little better for us. But go on, So going with your point. So this was an exhausting process, and one manifestation of this was what you might call racial fatigue. The North was kind of tired of the race problem, tired of dealing with Southerners, tired of worrying about black people, and so they sort of took their they firearms, and took their tanks and their presence and pulled out of the South. And so reconstruction ends and the North turns to the business of industrialization, leaving black people essentially on their own. And as a consequence, that was just the beginning of a process of what we call national reconciliation. It was a process where the South sort of began to rewrite the narrative of the Civil War first period, when monuments start to go up to celebrate the Confederacy and the North is kind of tired. We began to see early writings by Northern scholars that began to shift the conversation away from Southern racism to black pathology. And it's that moment where the North begins to articulate its own understanding of black people's inferiority, and mostly for them, it's a kind of temporal thing. It's like, well, of course, since they were slaves, now for now they need time to what they would often say, work out their own salvation. And they turned to crime statistics to kind of justify what we might recognize today as a post racial logic. And in their moment, the post racial logic was where what you mean by post racial? Yeah, well, what I mean is that to identify black people as more criminal, as more illiterate, as less capable of self governance for them in the eighteen nineties turn of the twentieth century was not understood to be racist. It was objective. It was historical because it was less racist than the old pre Civil War idea that African records are just inferior, Black people are just inferior. So then compared to that, it's post racial to say, what's not the black people are inferior, they just tend to be criminal. Yes, in a nutshell, because it still sounds I mean us now now, it still sounds completely racist. So it sounds weird. Don't think if it is post racial. Well, but you're saying it's a different form of racist. It's a different form of racism. But this is why the story of this early period matters so much to us today, because if we miss that logic, if we miss an understanding that for and I write a lot about liberals, if we miss that, what they're saying is it's not in their blood. It's not that they're incapable. They just need more opportunities, they need more education, they need more time to build their families so that they can adopt our values. And once they have all of this, they'll be able to participate fully. So it was a recipe for eventual inclusion and acceptance and full assimilation. But it was predicated on what essentially the South was saying, which is that these people are insufferable. If you've been high and mighty and taking the high horse and being righteous, self righteous about the North being free of slavery stain in the nineteenth century, will wait till they show up at your doorstep, wait till they move to your neighborhood. So you know, it's not a perfect comparison at all. But one interesting way to think about this for a contemporary comparison is the US efforts in Iraq and Afghanistan to rebuild, and indeed reconstruct we even use that same word, believe it or not, societies that we had invaded, that the United States had invaded by creating new social norms, new social dynamics, and the US. I'm not saying this is the reason that the United States invaded Iraq and Afghanistan anymore than it was the original cause of the Civil War to liberate African Americans. It wasn't the original cause of the war for at least, you know, most of the advocates of the war. But at some point, just like the North in the eighteen seventies got as you said, fatigued or tired of the effort, you know, the United States gave up on its reconstruction efforts in Iraq and afghan Aniston. And now in the United States, to some degree you have a rise of anti Muslim sentiment, and in Europe you have a lot of increased anti Muslim sentiment. As people say, well, those people quote unquote, you know, that's just what they're like, quote unquote, we can't fundamentally make a change, and then that enables a kind of blame. And at least in Europe, the analogy is that you have lots of immigrants from the Middle East, a bit like African Americans migrating north from the South, and you have a big public fight about whether the new immigrants can be assimilated into the norms of the society. That's right, and who's responsible, I mean, who bears the burden? Becomes the kind of question that Europe is answering now around refugees and immigration from North Africa and from the Middle East. And that was essentially the same question Northerners said. Look, we fought a civil war, we supported reconstruction, we pass civil rights legislation, and now we have to deal with these people who are backwards and uncouth, and who bring diseases and inferior education. And the point is that the justification for what we would recognize today as Northern racism was crime statistics, illiteracy rates, illegitimacy rates, the whole package of disparity data that held whiteness as a norm against blackness. To say this is not about racism, this is about their inferiority and the numbers, that's exactly, or they would say the numbers speak for themselves. So you say, a fascinating thing in your book about this because you point out that exactly the same time that this is happening, you have South European, Italian, East European Jewish and Slavic immigrants. You had had Irish American immigrants over the previous fifty years who were still working out their issues, who we're still working out their issues, who still have high crime rates, who still are captured by a range of statistical measures. The most famous is that Eastern European Jews were ranked by the early inventors the IQ test as the lowest IQ group and were therefore you know, that was a reason to exclude them. And yet you point out there's a somehow a difference between how white thought leaders think about the crime, the backwardness, the limitations of these new immigrants who were not quite white but call them Whiteish and African American migrants. Yeah. To me, that's the most fascinating finding from this book. I mean, it's the thing that surprised me. It's not something I went looking for, nor did I expect to see it. It is amazing to watch some of the same criminologists, some of the same demographers, as you call them, white thought leaders, who are looking at Irish, Italian, and New York Jewish crime statistics through the roof. By comparison to their native born American counterparts, they have disproportionate crime rates across the board in many instances. And for one group of Americans prominent to be sure, called them eugenicists, called them social darwiness. These were people who believe that they were biologically inferior, as you've already described, and shouldn't be in the country, and we're advocating for closing the borders to it and successfully did. Yeah, that happened. That happened in nineteen twenty four. But at the same time, for the first time, we see this eruption of progressive activists and reformers, people who were we would recognize today as modern liberals, who believe that government had a role, that antidiscrimination was a core value, and they went to great lengths to push back against the eugenic tide. And they did it. Here is the irony. They did it on the basis of crime statistics. They read the crime statistics or interpreted them amongst the Irish, the Italians, the polls as evidence ass sdemic economic inequality. So let's talk about what that means updated to today. You know, here you have these wealth, you know, well intentioned people who say, well, you know, these immigrants will get over it. But African Americans, on the other hand, they're not so convinced we'll get over it. In fact, they start to imagine that there's some inherent criminality in African American culture, or maybe it's in the experience of slavery initially, or you know, they're not using racialized language, but they're still saying that it's unsolvable. How do you see that played out today in the context of observers of ongoing disparities in incarceration rates for Whites and African Americans. Well, the most obvious way is that there is no racialized language to describe white criminality today. I mean, I can use the term as a descriptor, but we have there's no conversation about it. The closest thing that we have to it is what has been defined as the opioid or heroin crisis, and before that the meth crisis, which breaking bad made more prominent and famous. But these crises among white Americans that include criminality, include violence, and obviously include drug addiction, are not understood to be a reflection of white people. They're generally understood to be some kind of public health crisis, often localized to particular kinds of communities, and for the most part, the nation respond to them with a sense that we have to do something about this. We have to find the origin of the problem in the community, in the environment, and something that's happening. So, of course big farmers paying a heavy price for prescription drug overdoses, but it's treated as an isolated problem though blame big Pharma. It's treated and I think of it as the battle of the TV shows. It's breaking bad show that's almost exactly the same astorical moment the Wire, which is just a brilliant show in many many ways, but one of its themes is the depressing impossibility. I don't think that's an overstatement of reform. The show shows people trying to reform, but it keeps on showing a series of failures. So it's different, and it's thought of as systemic, and there's a kind of okay, not sure what to do next theme, And it's also I mean, it leads to a number of the kind of productive conversations that progressives had a hundred years ago, they begin to have these conversations about, well, what's in the water, And I mean that metaphorically, so what's in our society that produces this level of alienation. One of the same people, Fredrick Hoffman, who sort of put in circulation this idea of black criminality time to crime stistics, was virtually a socialist. I mean, he was certainly in community with other socialists who were very clear about if we have high rates of crime and suicide and mental illness, then it is a reflection of something wrong in our society. But you hear those questions today, I mean, as you're saying, we don't really hear that about No one says white society is broken because of the opioid epidemic. People do say African American society is broken in some way because of ongoing rates of criminality. What conversation would you prefer to have us engage in, Well, the most the easiest way to say is we should be having the same public health conversation about rates of violence and drugs and property related crimes in the black community as we started in the progressive era and continue to have in the opioid era. In other words, there's a positive lesson there in the way they did it better. At one time, they did it much better. The other thing is the disparity between poverty and crime in rural white America is also a disparity of invisibility. There's a disconnect between the fact that where poverty over indexes as a cause of crime. So if you're poor, you're more likely to be involved in crime, no matter what you're rased. That's right, And therefore, if it's happening in rural wide America, there's no media markets to speak of, and certainly none that show up on our television sets. And there is a level of political accountability at the local level that has always been broken for the black community. So to be very clear, if I'm a local sheriff and I'm elected and twenty percent of my town is engaging in criminal activity or of one form or another, it is not in my political interest to lock up everybody. I can, yep, but I actually can lock up everybody in the town who's got an okioddiction or or is not only was involved in producing the stuff, were distributing it, or who is a serial robber or burglar. I mean, you know, there's a little name it, rename it. But you can do that in the black community. Not only can you do it in the black community, but you're likely if you're a prosecutor, to go on to higher office. If you're a judge, you're likely to be promoted at every level of the professional incentive structure within criminal justice picking off black people. But why is that true even in districts which have majority of African American voters. Because what you said is true. Well, I mean James Forman Junior, his really interesting book argues that some African American community leaders played some role in welcoming some of the higher punishments for crime and some of the policies now very much criticized policies of the eighties and nineties. Yeah, and I wrote a real book. The book very well, and I love the argument. So there's a fine distinction to be made for some subset of law and order black types or black types who are law and order advocates for thinking they were actually delivering a civil rights justice to black black people, that black people deserve police accountability and justice and safety in their community just like others. So fortunately the face of it is a good argument. Foreman does a great job of that. The harder argument that Foreman doesn't extend into too much is that black people have imbibed these views as well. And the degree to which African Americans imagined that punitiveness some subset of them imagine the punitiveness was the only natural response to crime in the community, is itself a reflection of segregated thought and policymaking, which has always had this particular conversation more or less policing, more or less prisons. But white people were getting a whole different level of options. They were getting very different options in their community, and their political leadership could do so. The third option I would say to answer your question is that no matter how many black people are in charge at the municipal level, they're still accountable to some kind of white economic or political community. And if they have aspirations for moving from being a mayor of a community to being a governor or a congressperson, then they're even more accountable to thinking about what will the decisions I make here now, how will that impact me later? Right, Corey Booker is the mayor of Newark. But Corey knew perfectly well when he was mayor of new Work that was not going to be the last job he held, that's right. And Corey Senator and he was going to run for president and yeah, And Booker's Police Department under Gary McCarthy, who was a former NYPD a senior official who went on to Chicago, ended up under a consent decree for systemic racial profiling. Fascinating, fascinating and not without its troubling side. In fact, Gary McCarthy, just to put a finer note on it, who was running Booker's Police department, was in charge of Chicago's police department when the Laquam McDonald cover up took place and lost his job over it. So there's just, in a nutshell, an example where black political leadership has not been sufficient to addressing these problems in terms of a social response or a collective response. You can also see, in relation to an NYPD origin that you mentioned there, that the modern version of the statistical argument is the so called comstat model, the idea according to which statistics are the magic, the special sauce they will enable police to handle urban crime by flooding the zone in areas where there's been crime. The core criticism there is that it drives a structure of racial profiling, which vastly increases arrests of African Americans, especially of young man. Your book actually has a kind of prehistory, the origin story of racial profiling itself. You want to tell us about that, Yeah, so. So. One of the ways in which the evolution of this early statistical discourse, starting with the census metastasizes in the North is that everyone begins to bake in racial crime statistics into their reporting, their municipal reporting, for example, and what we begin to see as a collapsing everything comes from somewhere. We think cops are always using the statistics that actually that was born somewhere. Yeah. Yeah, So what we saw, for example, when there were a lot of Europeans and their future was still under indetermined. European immigrants, you could pull out a police and your report and see arrest categories robbery, battery, assault, and it would say Russian, Scandinavian, German, Italian, sold and so forth. It looked like an Excel spreadsheet, you know, in print. By the nineteen thirties, most local statistics were reduced to white black other and the federal government reduced them to white, black, Indian, Mexican, Japanese, other. So essentially, blackness became kind of the most dominant signifier of deviation from a norm, which was a white norm. Didn't really matter what white people were doing, And in that sense, the agencies of law began to focus explicitly, both because the statistics told them to do so, but also because they were controlling white spaces in the way that we've had a conversation more recently about hashtag living while Black. So they were helping on the front lines of a kind of surveillance of black communities, ensuring that black people would not move into white neighborhoods if there were competition over jobs or business ownership. The police were often enforcers, and there was tremendous corruption to boot with all of this, and that early story which shows up in letters to the NAACP complaining about systemic harassment by white police officers or observing it on the street, It shows up in the first Blue Ribbon Commission, which grew out of a race ride in Chicago in nineteen ninety. The commission found evidence that there was systemic racial profiling, quoted criminal justice officials, all of whom were white, saying, yes, it is true if we see a black suspect, we will stop and arrest them. If we see a white one will just keep an eye on them to see if they do something in the future. The results of this incredible commission led the authors to say racial crime statistics are unreliable and should not be used because they do more harm than good. They confuse. So we've been down this road. We've been down this road before, and there's a kind of sixthical thing. So that actually leads me to a question about what should we do about this problem. One of the responses that you hear a lot today is we need fundamental change, and that comes in a moderate form and in a more radical form, so to me. An example of the more moderate form is a new initiative which has gone a lot of publicity, mostly because of Jay Z's involvement in it, to limit or maybe do away with supervised forms of release, probation or parole that have the effect of putting formerly in prison people are in some cases people who didn't go to prison at all under kind of constant states surveillance, with the risk that if they violate the terms of their supervised release, boom, they can go right back to prison. The more radical form, which from the moment is still heard mostly among activists and on university campuses, is the call for genuine abolition, where abolition is the abolition of prison altogether. So maybe let's take those in turn. What do you think about the let's change supervised release what I'm calling the moderate version of big scale reform. Yeah, so I'm all for it. I mean, there's no legitimate basis to critique that suggestion for the most part, because in some states, the vast majority of new admits are supervised released of recommitments. So people who are caught for technical violations of parole improbation are the vast majority people who are then readmitted to prison or admitted to prison at all. In some states it is actually the majority of new emits because because the system has been churning for so long, there's a vast population. There's something like seven million people in our country who are under some form of criminal justice supervision has compared to only two point two million one point four million are in prison the rest and only right only. So so yes, that's for some states that would be a huge reduction in new admits to say, you know what, they serve their time they've been released, they're done. They can't. And the most obvious reasons for this is because the reasons to trip people up are very much baked into the social hierarchies that exist in our community. Which is to say that people who are already overly surveiled because they live more public lives in urban cities are much more likely to get caught having a brusque in a brown paper bag because they don't have a nice living room to have it right, or even a joint. I mean, the God forbid that we still think that somehow, you know, you can question someone's moral fitness because they had a joint. But yet prosecutors and probation officers will still say, you know, this is what Rick Scott, as governor Florida, was still doing when he was just a year ago, saying, you know, you had that joint, you shouldn't have done it. You don't get your right to vote. So what about you said, there isn't really a rational counterargument in the way you just presented it. You've convinced me. But my question is, isn't there at least a possibility that if supervised forms of release were eliminated that there would be a public push for longer sentencing. I mean, isn't it the case that lots of people that are on supervised release would otherwise be incarcerated. Well, I think that we have to separate out what reformers and scholars are saying about the mechanics of decarceration from the popular appetite for retributive justice. Yep. And that's a big problem, and that is not addressed by supervised released, right, the mechanics of a legislative fix that said, this is one way to get as significant reductions. And the other problem is, well, what happens if one of those people who would have been on supervisor released does something terrible and the public says, lock them up. But it's sort of it's sort of dealt with in the following sense, in the sense that it's an escape valve. So you have people who are in the system, you know, prosecutors and police officials and prison officials who know that there's just too many people in the system, and then you have a public saying lock them up, lock them up. So then there's a kind of secret pact among the people who run for elected office saying, well, we're locking them up, We're giving people log sentences, but then in fact they are being released to be a supervised release. Take away the supervised release you're taking away. I mean, it's not a very attractive method of dealing with their problem. But isn't it, in some structural sense a way that elected officials have tried to reduce the effects of the public's long run, you know, apparently insatiable desire to have at least a symbol of strong crime response. Well, I think we should harst the public a little bit more so. There are some publics who genuinely think that we've gone way overboard with sentencing period and have been advocating for and calling for rejection of all kinds of mandatory minimals, particularly at the state level, which we're not addressed by the first step back. I think the other aspect of this, when it comes to thinking about various forms of supervisor release, people are calling for alternatives to incarceration, which might include electronic monitoring. So that's not even about release at the point of the shortening of a sentence. That is actually a disposition that the person never goes instead of and a lot of us and I would express concern here too, is we may be trading on one form of a punitive system for another, because now it's like, oh well, we don't even have to spend money on these people. We'll just have a wrinkle bracelet on everybody, even people who through plea bargaining, we just figure so we have one way to answer. This is what jay Z and others are calling for. Are not addressing the cultural roots. I don't addrest. It's a it's a it's a band aid, it's a fix. So what about them the people who claim and La Davis most famously, but lots of other people are on board for something it's not a band aid, namely abolition of prisons altogether. To me, this is an issue that hasn't yet fully penetrated. Certainly, it's it's making inroads in the African American public. I don't think it's penetrated the average white person's consciousness yet, except on campuses. What's your what's your view on it? When I first heard about it, you know a few years ago, I thought to myself, this is utopianism. Now I'm not so sure. Well, this is where the two things we just talked about may intersect in an odd way. So I would agree with you that African Americans are may over index, you know, just in terms of the activist community. But I would not I would not suggest, going back to Foreman's work and the you know, deeper roots of how black people have understood punitiveness as a civil rights project itself, say that they're all all on board either, but especially in communities that feel their closest to the kind of gun violence that does happen. I didn't mean to suggest that. I just meant that if you pull the average African American and maybe the people ever heard of the idea of abolition, not that they're on board with it, but they might have at least heard of it. I think I'm waitfuless not even so clear that's true. I'll take that one, and I think that it begs the larger question of how radical are our imaginations? Because to me, the most generative aspect, well, how radical should they be? I mean, press they should, they should be. They should be as radical as ending prison because the first prison that was built in Philadelphia, in Eastern State Penitentiary at the top of the nineteenth century, failed and it failed by the standards of the people who built it, and they wanted to rehabilitate people and they couldn't. Well, it wasn't even that they wanted to rehabilitate people and they couldn't. It wasn't about a recidivism problem. It was about a brutality problem that people who genuinely thought that a prison could be a place for penitence in isolation, so that a person could be reborn, were object to systemic abuse by the people by their jailers, and the very construction of the prison, while they thought it was going to bring people closure to God, turned out to produce insanity. We've never solved that problem, and in fact, in the twentieth century we doubled down on solitary confinement because we believed it was the best, the best way to manage the prison population, which grew and grew and grew, and there wasn't enough room to do this. So we've failed by every generation, by every standard that the people who were innovating thought was the best next best thing to do to meet our own goals and expectations. So this may be an example of where going deep into the history can actually change your perspective on it. I mean, if you think that prisons all you've ever had. Then you think, well, we're stuck with it. But in fact, there were other mechanisms of addressing crime before prisons, and prisons were invented at a certain moment, and when those other methods were thought out to work, they got rid of those, And maybe it's now time to think about getting rid of prisons. So then the obvious next question is what are those alternatives? I mean, the options from before now seem to us unimaginably brutal, sort of in the way that maybe in the future people will think of prison as having been just inherently not just the conditions that currently exist, but inherently fundamentally brutal. But you know, we're not going to go back to chopping off people's hands. And you know, we don't believe in transport. Maybe we would transport people to Australia if we could, but we don't have so many places that are obvious sources or locations. So what are the kinds of options that are credible today? Yeah, so I'm going to shout out a colleague of mine's work. Her name is Daniel Serich. He runs an organization in Brooklyn called Common Justice, and she's written a book called Until We Reckon, And the most important point of this book is that if we think about the problem of harm and violence, especially as a recipe for shame and accountability, in other words, that people who have done something terrible to someone feel shame, and people who have been victimized by violence often feel shame, and that prison itself is a shame factory. So prison's not working if if we could, well, why because it's made for shame. I buy that interpretation of it right on. A theory that shame will work is the argument that it's shaming but failing to work. It's shaming and producing violence and makes more violence. It makes more violence, and that people who are exposed to violence, according to epidemiologists, are more likely to convince by So the very thing that we use as punishment is a violence producer. And so her work is the first and most significant effort for an alternative to violent offenders. So one one line of defensive response this would be to say, well, that's true, prison doesn't fix people, and in fact, it does make people worse off. But you know, the last fallback of a scoundrel who's got no alternative institutional option is to say well, at least people who are in prison aren't commending violence on people outside of the prison. I mean, it's a kind of sad last defense, but it is out there as a possible defense, and maybe it's even heard among people who live in communities that are most likely to be affected by violent offenders. So then think of it this way. So while the single individual who is being incarcerated for violence may be incapacitated by the experience of incarceration, that individual can't hurt anybody outside of prisoners, right, is touching someone who's coming home tomorrow. In some way, shape or form. They share the same social ecology, So you may not as that are breeding ground for more violence, right for the person who now has been exposed to you, who are not being treated for your violence, who have no mechanism to actually seek forgiveness or redemption through the means of being in community with the person who you did harm to. The other point that she makes is that individuals who have been harmed are now subject themselves to committing violence, and they don't get the opportunity for accountability from the wrongdoer that they need. So it becomes a vicious cycle where the people who have been armed, are more likely later on to become violence perpetrators, and the violence perpetrators are in an institution that produces violence and sends people home back every day. Now, I am not one to both use kind of the language of damage imagery to reinforce these notions where I don't want to live anywhere near these people because they sound like they've got a lot of issues, and you also use them. You also use the metaphor of epidemiology, that's right, or the discipline of epidemiology, which is of course comes from infectious diseases. That's the word epidemics. That's also a that's a I mean fraud nothing. I mean, that's a terrifying and I think worrisome image to use. It implies that criminality is catching in some way, which might be our own up to date version of the old idea that there's something inherent in people's qualities. So one way we have to wrestle with this, and this is a conundrum that I haven't solved yet. Just in describing these mechanisms is what we keep coming back to is prison is not helping. And so one way that she just this work and is proving the work in the work that she does daily is people are being remanded to her care, and that includes people who have committed violence. And just so your listeners know, the vast majority of people in prison are not murderers. Fifty four percent are convicted for what is considered a violent crime, which is robbery. And so this is not necessarily about people who just are schizophrenic or psychopaths who just go out and kill people. This is often related to their poverty. So to solve this problem for her and the work that she does means that outside of the prison system, we can actually achieve two things. We can help people who have done harm find their voice of accountability which makes them feel better, and the victim of it can feel better so that they can move on with their lives as well. So there you break that cycle. There's something scary, though, to me, at least underneath that description, because you made what I think is an incontrovertible point that if there is a root cause that we can identify and associate with crime, it's poverty. That implies that unless something can be fundamentally done about the structure of poverty in the United States, and particularly the racialized structure of poverty, there won't be a solution to the problem of crime. Most broadly, is that a fair interpretation of what you just said? Oh? Absolutely, so, you know, don't get me started on the root causes argument that have mostly been dismissed as you know, too hard in this country, and we need to reclaim and I think having conversations about new deals, whether they're green or otherwise, you know, is a step in the right direction. But I also want to be clear that we also know what decarcerated communities look like. They can look around and see them. They look like those rural communities that we've already talked about, and they look like affluent suburbs. And if we put this sounds like oh there he goes again, like if you put a police officer on every corner of a college campus, you know, the place would be, you know, full of X felans. Well, we might be dismissive of the thought of that, but it's true. And the degree to which we're watching in the Trump era, men of affluence and wealth and connections have the kind of lawyering that turns on levels of evidence that the vast majority of indigent defendants in this country never even come close to being able to argue, and even if they argue them successfully, if they go before a judge are not likely to win the case, and if they go before a jury are also not likely to win the case. Tells us a lot about the moral corruption and bankruptcy of our entire system that, as Brian Stephenson says to quote, if you're rich and guilty, you're more likely to go free then if you're poor and innocent. Khaliljubran Mohammed, thank you for taking us deep into the prehistory and looking us looking with us into the future. Thank you very much, great to be here. We have the tendency to think that the problems of racing incarceration are pretty new problems. Maybe they go back to the nineteen sixties, we think, or maybe they're even more recent. Maybe they have to do with the crackdown on crime in the nineteen eighties and the rise of stop and frisk policing. But listening to Khalil made me realize that's just not the way it is. He traces the problem of race and incarceration being closely linked all the way back to eighteen ninety and even maybe before then, to the very moment when slavery went away and was replaced almost immediately by segregation as the main mechanism of establishing racial control over black people in the United States. That's a devastating thought, and it makes you worry about whether America's DNA is so fundamentally racist that we can't fix the problem of race and incarceration. And I think it helps explain why it is that so many serious thought leaders in this area, people like Khalil, have begun to argue for the most radical possible solution to the problem, namely the abolition of prisons. Not sure I'm there myself quite yet, but it's really clear to me that I and the most of us need to be thinking pretty darn hard about whether that's the way to go. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Geancott, with engineering by Jason Gambrel and Jason Rostkowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis GERA special thanks to the Pushkin Brass Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is deep background