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November 1, 2011

Readings (and videos) on Paul Butler's proposal for race-based jury nullification

I mentioned briefly in class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification.  The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link.  Here is a snippet from the piece's introduction:

My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.  The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers.  Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants.  Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....

My goal is the subversion of American criminal justice, at least as it now exists.  Through jury nullification, I want to dismantle the master's house with the master's tools.  My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct.  Criminal conduct among African- Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day.  Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts."  Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal.  I wish that black people had the power to end racial oppression right now.  African-Americans can prevent the application of one particularly destructive instrument of white supremacy ---American criminal justice --- to some African-American people, and this they can do immediately.  I hope that this Essay makes the case for why and how they should.

For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated) 60 Minutes video (under 10 minutes) discussing Butler's ideas.

Anyone who is eager for even more video on this issue can also see a series of 1995 segments on the Phil Donahue show (part 1 here, part 2 here, part 3 here...) with Butler and other guests.

November 1, 2011 in Race and gender issues, Who decides | Permalink


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What I find fascinating about the argument made by Prof. Butler is that a seemingly universally problematic set of laws (i.e., nonviolent victimless crimes) should be addressed in a race-based matter. Because so much of the issue is based on and framed in the Drug War context, I think the race problem is more one of application. The problem is similarly addressed by Michelle Alexander in The New Jim Crow with an equally short-sighted proposal to allow race-based discrimination suites.

If the laws are wrong on their own terms, notwithstanding the wrongness of their racial application, the law should be changed or, per Prof. Butler, ignored wholesale. Raced based nullification (or discrimination suites) only exacerbates the problem. For one, we create a whole new sentencing lottery which depends on the composition of the jury. Two teenaged black defendants could have their lives dramatically altered by the racial make-up of their jury. How does this solve the problem of looking up too many people for nonviolent victimless crimes?

It doesn't. If places a bandaid on missing limb, and, more critically, provides material for the reverse racism crowd. The issue is how many people we incarcerate and for what crimes, the racial disparity that results (and in not a trivial amount the racial discrimination) is a symptom of that issue. Take away the ability to prosecute low level drug possessors and you take away the ability for disparity/discrimination to exist. Their can be no discrimination when the sample size is zero.

Also, watch the Donahue clips, its an interesting discussion. On a personal note, Phil Donahue talks about his Catholic education, but he went to St. Eds....everyone from Cleveland knows thats not a real Catholic school.

Posted by: Kevin S | Nov 2, 2011 2:42:14 PM

There was one thing that struck me as a pretty obvious counter to Butler was surprisingly not brought up in the video: if juries start doing more race-based nullification, won't that encourage a backlash both through lawmaking and in the courtroom that would outweigh any benefit of nullification?

I understand where Butler is coming from, but if he's right that white society is dominant and oppressive in forming and enforcing laws, then his strategy has no chance. If black juries start nullifying with regularity, prosecutors are going to be more active and creative in keeping blacks off juries, and judges might be more willing to tolerate such behavior. Lawmakers might also stiffen penalties for non-violent drug crime, seeing falling conviction rates as an indication that penalties need to be tougher to deter would be offenders.

I don't know what the solution is to racial sentencing disparity, and I sympathize greatly with Butlers point of view, but jury nullification would incur a backlash that would probably do more harm than help to his cause.

Posted by: Colin P | Nov 3, 2011 12:30:41 PM

I agree with the Professor Kennedy's response to Butler's proposed plan for jury nullification, which is that, once an appeal is made to black jurors to nullify based on racial sentiment, what's to stop white jurors from nullifying for whites? Blacks perceive that nullification only for blacks will lead to equality, but whites are not likely to accept black nullification unless they are permitted to do the same for other whites. Of course, other races will likely decide to begin nullifying as well. In my opinion, a contest between races to undermine the law for the benefit of their respective groups is not the solution to perceived racial injustice.

Posted by: Harrison Markel | Nov 6, 2011 9:51:41 PM

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