Embracing Butler's Hip-Hop Theory of Justice
On the first day of Criminal Procedure last year I was prepared to face the legendary Professor Paul Butler after having read and reread the assigned cases till my eyes hurt (which turned out to be a good call as I was called on both the first and second days). I'd heard the tall tales of the intimidating but brilliant former prosecutor's daunting and some would even say adversarial style of Socratic teaching. Most people had told me that if I had the guts to take his class he would be one of the most, if not the most engaging Professors in law school-but beware his unorthodox tactics. One of these tactics manifested that first day when Professor Butler informed us he wanted us to hear from some scholars on criminal justice. Promptly NWA's "Fuck the Police" and other selections from such scholars as Nas and Jay-Z flooded the room while the lyrics of each song lit up the pull down screen like a sort of gangstified-powerpoint.
The legends were all true. I won't deny his incoming classes any surprises by enumerating his other class eccentricities here-instead I will just iterate that Paul Butler is everything you've always heard him to be-and most of all, he is a criminal justice expert. His unique experiences and unique ideas shaped by those experiences make his new book, "Let's Get Free; A Hip Hop Theory of Justice" a welcome addition to the catalog of criminal law scholarship.
"Let's Get Free" condemns what Butler calls the United States' "lock-'em-up culture". He starts the book with sobering statistics about the percentage of America's population in prison verses the percentages of populations imprisoned around the world and throughout history. Most notably, the United States has 25% of the world's prisoners but only 4% of the world's population. Out of 300 million Americans, 2.3 million are behind bars. These figures give the United States the honor of having the highest incarceration rate in the history of the free world-and the rate of incarceration is getting higher every year.
Butler believes that our proclivity for locking up such a huge cross-section of the population actually makes us less safe and lays the blame for this situation squarely on the "War on Drugs". He contends that the war on drugs is completely counterproductive-incarcerating non-violent offenders and failing to spend equal sums on treatment and rehabilitation as is spent on punishment. Butler attacks the roots of prohibition as springing from skewed racial stereotypes. For example, assessing all Chinese as opium-addicted and Mexicans as chronic marijuana smokers. (Pun perhaps intended.) He highlights several ways in which the War on Drugs fails to promote society, among them the victimless nature of drug crimes-the people we put behind bars for possessing controlled substances are not violent people and pose no risk to the general population. When we put these people in jail with every kind of violent offender, however, we give them a crash course in violent criminality. People come in with non-violent pot habits and leave as hardened criminals who pose a danger to law-abiding America.
To combat this growing threat to the American justice system, Butler has some advice to anyone who finds his or herself in the jury box: strategic jury nullification. This means that when you find yourself the finder-of-fact in a non-violent drug related offense, you should use your power to acquit-even when the defendant is guilty. Butler explains that this is a constitutional right that has shaped our rights as Americans since the judicial system's birth. When the people who staffed the Underground Railroad were arrested for contravening the Fugitive Slave Law, juries often acquitted guilty defendants, in effect saying this law is wrong and unjust. The same was done in defiance of anti-miscegenation laws in the twentieth century. The ability of jurors to speak through actions in the courtroom arguably advanced race relations where the law was slow to do so. As the War on Drugs has a clear disproportionate effect on American minorities, it makes sense that Butler would advocate its use today.
Butler's position on jury nullification has evolved over the past decade and a half since he shocked audiences through his appearances on television shows Donohue, Bill Maher, and 60 Minutes in arguing that black jurists must acquit black defendants who are guilty of so-called victimless crimes-explaining on 60 Minutes, for example, that it is indeed jurors taking the law into their own hands. After appearing on those shows in the mid-nineties Butler says he received a wave of backlash questioning whether his admonitions only applied to black defendants or whether white victims of the war on drugs should be allowed the same constitutional protections of strategic jury nullification when the finders-of-fact were so moved. "One of the most common questions I got from people after I advocated nullification in cases of African-Americans accused of drug crimes was from non-blacks: "Why can't we nullify in non-violent drug cases too?" "Now, you can, with my blessing." Butler ceded that all races were indeed owed such protections.
One of the reasons Professor Butler's class has such an impact on students is his eagerness to work policy debates into class time. I asked Professor Butler if these policy debates with his students has had any impact on the evolution of his philosophies on the criminal justice system and he responded unequivocally, yes: "My students always impact my perspective on the issues that we discuss in class. Conversations with hundreds of people, especially students, about criminal justice issues, and the fact that incarceration has exploded since I first started talking about these issues, caused the expansion of my proposal for jury nullification to people outside the African-American community."
Professor Butler says he has been very pleased with the reception "Let's Get Free" has received. It's been so well received that he has learned that it will be used as part of the curriculum in law school classes at Georgetown, Northwestern, and NYU, among other schools. As for his students, Professor Butler encourages all to read "Let's Get Free," and put his words into actions when we are given the opportunities to sit on juries here in the District, and become what he refers to as "Martin Luther King jurors".