What Being a Defense Lawyer Taught Me About the War on Drugs

An excerpt from 'Locking Up Our Own,' a powerful book by a former defense lawyer on the realities of the war on crime and how African Americans have helped in its escalation.

by James Forman, Jr.
Apr 13 2017, 3:45pm

Illustration by Lia Kantrowitz

Attorney General Jeff Sessions has promised a renewed war on drugs, calling for more federal drug prosecutions and alleging that marijuana is "only slightly less awful" than heroin. Meanwhile, Republican health care proposals promise to gut the treatment and mental health services that drug addicts desperately need. As we contemplate such proposals, let's remember that we've been here before. In the following excerpt from Locking Up Our Own: Crime and Punishment in Black America, out April 18 from FSG, Yale law professor and former public defender James Forman, Jr. puts a human face on the harsh realities of the drug war.

From Locking Up Our Own: Crime and Punishment in Black America

"How long have you been a lawyer?" Tasha Willis's question, posed at our first meeting, was a fair one, even if I was not eager to answer it. Ms. Willis had been assigned to me in 1996, the day after I advanced to Felony II Low, a docket consisting mostly of drug-selling and gun possession cases. My promotion was hardly dazzling: Lawyers at the D.C. Public Defender Service (PDS) rose automatically, on a fixed calendar. Our first year was in juvenile court, our second was in adult misdemeanors, and then we moved to lower-level felony cases like Ms. Willis's. So when I answered her question—"I've been practicing for two years now"—her face fell. I could see that my limited experience was of little comfort.

But no matter her doubts, Ms. Willis was stuck with me. As with all our clients, she was unable to afford a "paid lawyer," the term our clients invariably used to refer to private counsel. When this label was used, the word "paid" was often drawn out, in part unconsciously, owing to southern influences on DC speech, but also in part deliberately, to emphasize the grandeur of any lawyer who could demand a fee. We public defenders, by contrast, had a rather less glamorous reputation. Movies and television shows portrayed us as overworked, inefficient, and, worst of all, resigned, freely provided by the government yet woefully unable to help. But PDS had been established in the 1960s to serve as a national model of indigent defense, and my colleagues and I refused to fit the media stereotype: We cared down to our toes about the inequities of the criminal justice system. We were prepared to devote our days, nights, and weekends to our clients. If anything, we used our low status as motivation. "The best representation money can't buy," we'd say around the office, joking only in tone.

Ms. Willis didn't know any of this, and her low expectations gave me the opportunity to surprise. "Our clients have always gotten the worst of everything," a senior lawyer had told my cohort of ten new lawyers during training two years earlier. "Bad teachers. Dismissive social workers. Crap housing. No jobs or shitty jobs." We were in the PDS conference room, a dilapidated space in the bowels of a mostly abandoned courthouse. Our trainer continued, "And now you come along. Of course they will assume the worst!" There were murmurs of assent throughout the room. "But they deserve better. They deserve what society has never offered, not one single time. And your job is to give them that, to give them what any of us would want if we had a loved one facing trial—your job is to give them the best." Yes, yes, yes, I thought, joining my classmates in pounding our desks in agreement. 

The speech worked: I left training ready to run through walls for my clients. But when I visited Ms. Willis in her basement apartment a few months after I took her case, it seemed as if hard work wouldn't be enough. Ms. Willis had been arrested after an undercover officer, approaching her on the corner of 7th and T Streets, had purchased $10 worth of heroin with a specially marked bill. After leaving the corner, the officer identified Ms. Willis to a uniformed colleague, who made the arrest and brought her to jail. The prosecution's evidence was certainly damning—when the police searched Ms. Willis, they found the marked bill. She knew she needed a good lawyer and I couldn't help but feel further discouraged by her disappointment at my novice status. But the thing that really got me down—that made me fear my best would not be good enough—was the sentence Ms. Willis now faced.

When I started working as a public defender, in the fall of 1994, I would occasionally ask friends, family members, or even people I had just met at a party, to guess how much prison time a person might serve for a particular crime. "What should the maximum sentence be," I would begin, "for selling a small amount of a hard drug, like heroin or cocaine?" Most answers fell somewhere between probation and a few months in jail; even my strictest respondents advocated a year of incarceration, two at the most. In each case, after receiving an answer, I would motion upwards with my thumb, again and again, until the number strained, broke, and moved far beyond the limits of reason: For a first-time offender, D.C. law stipulated a maximum of 30 years in prison. For someone with a prior conviction—someone like Ms. Willis, who, five years before, had been caught selling $20 worth of heroin—a guilty verdict could mean up to 60 years behind bars. Whomever I was speaking to would invariably be shocked—but then, after an uncomfortable silence, someone would introduce a more upbeat topic. To those I cornered at parties, D.C.'s sentencing system may have been appalling, but it was still just a thought experiment, not a tangible reality. 

With Ms. Willis, however, there was nothing abstract about our talk. She was in her mid-40s, so the 60-year maximum sentence for selling a $10 bag of heroin would amount to life in prison. We were sitting in her kitchen, where she was making beef stew. I accepted her offer of a bowl, and it was delicious, but I didn't eat enough to satisfy her. "Attorney Forman, you need to eat; no woman is going to want a skinny man." I had known this was coming. Ms. Willis was only about 15 years older than I was, but she invariably had motherly advice to offer. 

She was in her mid-40s, so the 60-year maximum sentence for selling a $10 bag of heroin would amount to life in prison.

We laughed for a bit about my food choices—she was appalled to learn that I thought rice and beans plus salad constituted dinner—but before long we had to turn to a graver topic. I had come to explain the government's offer: If Ms. Willis pled guilty to an attempted heroin distribution charge, the prosecutor would cap allocution at five years (i.e., the prosecutor would recommend that the judge impose no more than a five-year sentence with the possibility of parole). Though judges were not bound by these suggestions, the judge assigned to our case was known to go along with the government's recommendations.

Ms. Willis wanted to know whether I thought this was a good deal. I said yes, because a trial would be risky, and if we lost, the consequences would be severe. Of course, not even D.C.'s harshest judge would assign the full 60 years for a case like this—but still, every so often, a judge did go ballistic on some poor soul. Ten- and 15-year sentences were rare, but not unheard of, in low-level drug cases involving repeat offenders. 

When I was done with my spiel, Ms. Willis sat quietly, looking not at me but at the white wall behind me. It was a longer silence than I was comfortable with. But just as I was about to ask her if she understood, or if she had questions, she leaned forward and looked me square in the eye and said, "I don't want that plea offer. I want a better one." I started to respond that this was the best deal I could get, but Ms. Willis shook her head quickly, almost as if she knew what I was going to say before it came out of my mouth. "Tell the prosecutor, or the judge, or whoever," she continued, "that I don't need to go to jail." Her voice was firm, and free of doubt. "Attorney Forman, tell them I can't leave my mom for five years. Tell them I need a drug program." Ms. Willis didn't lower her eyes when she was done speaking. It was clear that she wasn't asking me to do anything. She was telling me. As I listened to her, I couldn't help but think that in a different world, she would have made an excellent attorney herself.

But I doubted her speech would work as well in the prosecutor's office as it did in her kitchen. It's not that I thought she was wrong—according to her court records and personal statements, she was most definitely an addict. The problem was that I had already told all this to the prosecutor. Her name was Bernice Lester, and she was one of the good ones, a friendly African American woman who had been in her job only slightly longer than I had been in mine. Nine months earlier, in a different case, Bernice had used her discretion to permit a client of mine to avoid prison and enter a diversion program. 

Our system never treated the failure of prison as a reason not to try more prison.

This time, in her office just a few blocks from PDS, Bernice had listened to my pitch as I described Ms. Willis's pathway to addiction. Ms. Willis had worked for the post office before suffering a serious back injury when she tried to lift a package meant for two to carry. No matter how much pain medicine she took, it never seemed enough, and over time she became hooked on pills and, eventually, heroin. She lost her job and fell deeper and deeper into her addiction.

As I was finishing my appeal, Bernice looked through the stack of case folders on her desk, found the one marked United States v. Tasha Willis, and promptly shook her head. "No," she said, skimming the first page in the file, "I just can't. My office won't do it—she's got priors and already had two chances at drug programs. Programs don't work for her." 

This time, in her office just a few blocks from PDS, Bernice had listened to my pitch as I described Ms. Willis's pathway to addiction. Ms. Willis had worked for the post office before suffering a serious back injury when she tried to lift a package meant for two to carry. No matter how much pain medicine she took, it never seemed enough, and over time she became hooked on pills and, eventually, heroin. She lost her job and fell deeper and deeper into her addiction.

This answer—that drug programs "don't work" for a given defendant—was a common one among prosecutors, and it always infuriated me: Anybody who has ever been addicted, loved somebody with an addiction, or studied addiction knows that many people relapse multiple times before getting clean for a sustained period. "So what?" I demanded, leaning forward, my voice sounding angrier than I had intended. Bernice just looked at me, her smile fading fast. It would have been a good time to hit the wrap-it-up button. But I pressed ahead, my voice filled with righteous indignation. "How come with drug programs, we act as if one or two chances is all you should get? How come we don't treat prison the same way?" 

After all, I pointed out, Ms. Willis had already served one mandatory prison sentence, with no treatment, and had gone back to using and small-time selling as soon as she got out. And yet, I said, our system never treated the failure of prison as a reason not to try more prison.

Bernice was unmoved. "There are already long waiting lists for the few programs around," she told me, "and they should go to people who haven't had a chance before." So that was it. No drug treatment program for Tasha Willis. Five years in prison was the best Bernice could, or would, do. Her last words couldn't have been clearer: "Tell your client to take the deal or we go to trial."

Ms. Willis rejected the plea offer. After trying and failing to secure a better one, I was left to prepare for trial. The situation seemed hopeless; I began walking from office to office, peddling my paperwork to senior lawyers, hoping they would find something I had missed. But no matter whom I buttonholed, from our trial chief to our training director, each conversation ended with some version of, "Tell me again—what was that plea offer?" 

On the morning of the trial, Ms. Willis and I sat outside the courtroom. Ms. Willis did not look well. I couldn't be sure, and I didn't know if anyone else would notice, but she appeared to be sleepy. Maybe she was just tired; maybe the stress of a looming court date had been keeping her awake at night. But nodding off was a sign of heroin use, and I certainly didn't want her doing it in front of the judge. I brought up the plea offer one last time. Lethargic as she was, Ms. Willis stayed firm. She had not changed her mind.

The courtroom, when we finally entered, was brimming with defense lawyers and prosecutors, who shuttled in and out negotiating last-minute pleas. The courtroom clerk called case after case, her voice flat and uninterested. Shortly after 11, after we had waited two hours, I heard her call Ms. Willis's name. When we got to the defense table, the judge launched into the standard, all-but-scripted routine. The first step was establishing that all parties were present. After opening the case file, he turned to the prosecutor, Bernice Lester, and asked, "Is the government ready for trial?"

Unless an important witness had failed to appear or the prosecutor had suddenly noticed a glaring problem, the answer was typically yes. Sometimes prosecutors would reply, "Ready call," which in courthouse lingo meant, "We are ready in concept, and our witnesses are standing by the phone; we just need to call them over." Defense lawyers hated "ready call": We were convinced that the prosecution used it when they weren't really ready, but hoped to buy extra time to find a witness. It was a good strategy, if a manipulative one: In the face of this final bit of pressure, many of my clients caved.

But this time, I heard Bernice Lester say, "No, your Honor."

I inhaled sharply. "Your Honor," I said, operating by sheer reflex, "we move to dismiss for want of prosecution." The judge granted the motion—the standard response when the prosecution offered no extenuating reason for being unprepared—and I immediately grabbed Ms. Willis's elbow. I wanted to escort her out of the courtroom before our luck was somehow revoked. Ms. Willis moved slowly—a little too slowly, I thought—and I tried to help her along without revealing how desperate I was to escape. But I was just being paranoid: The clerk, judge, and prosecutor had already moved on. Before we made it to the door, another defendant was making his way to the counsel table, lawyer at his side. Nobody in the courtroom was thinking about Ms. Willis.

Ms. Willis was eager to go home, and I had another case to attend to, in a courtroom down the hall. But there was time for a goodbye hug, and for Ms. Willis to remind me that she'd been right about the plea offer. She claimed she'd had a sense that the police weren't going to show up. "Knew all along," she said. I smiled, but I didn't say the truth: We had no way of knowing why the case was dismissed. On that day, for whatever reason—a missed deadline, a lost folder, a police officer who overslept—Ms. Willis had won the dismissal lottery.

As she turned to leave, Ms. Willis looked at me one last time. "Don't worry about me, Mr. Forman," she said, reading my mind. "I'm going to get the help I need." I really do think she believed those words. But I didn't. Finding a treatment bed from within the criminal justice system was hard enough; finding an affordable option from outside the system was next to impossible. Poor people languished on waiting lists for years.

No: Ms. Willis would not get the treatment she needed. As I watched her walk down the hall and out of the building, I knew that what little D.C. had to offer her—what little America had to offer her—was back in that courtroom. And it was police and prison, not help.

Excerpted from Locking Up Our Own: Crime and Punishment in Black America by James Forman, Jr. to be published on April 18 by Farrar, Straus and Giroux.