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I, the Jury

Former prosecutor and law professor Paul Butler advocates jury nullification in Let's Get Free

By Michael Corbin | Posted 8/5/2009

When former federal prosecutor Paul Butler appeared on 60 Minutes in 1996 to explain his critique of America's criminal-justice system in The Yale Law Journal, he was introduced portentously by one of that show's aging reportorial eminences with a warning label. "What you are about to see is going to infuriate a lot of you," Mike Wallace intoned with dark admonishment.

Later in the segment as Butler attempted to make his case for the use of jury nullification--strategically voting "not guilty" in certain non-violent criminal cases as a form of protest, the evidence notwithstanding--you can watch Wallace begin to lose his journalistic cool. Wallace leans back in his chair after Butler lays out his argument, sighs with exasperation, and goes beyond mere interviewer. "That's a pretty hard sell to me," he intones with grandfatherly sanctimony.

Butler, who remained studiously placid throughout the interview, doesn't miss a beat. "The beauty of jury nullification is that we don't have to sell it to you," he rejoins. "It doesn't matter if a white person understands or agrees with it."

And thus, the Yale and Harvard Law graduate, former prosecutor, and George Washington University law professor lays down a rhetorical marker that is rarely articulated in the age of Obama and proclamations of a post-racial America. Now, Butler has extended that marker and his argument for the case that America's criminal-justice system is fundamentally broken, essentially racist, undermines democracy and personal freedom, and does not make us any safer in his new, at times infuriating but necessary book, Let's Get Free: A Hip-Hop Theory of Justice (New Press).

Let's Get Free--named after the debut Dead Prez album--is necessary in part because race and crime, particularly in places like Baltimore, have become such ideologically fraught ideas where partisans spout platitudes at each other and little fundamentally changes. From his unique vantage point as a former prosecutor, Butler attempts to provide a new set of lenses to look at what we have wrought in the name of justice, because it should be deeply troubling to any citizen: America now incarcerates 2.4 million people, more than any other place on earth. Blacks and Latinos are arrested, adjudicated, and incarcerated far out of proportion to their numbers in the general population, and even far out of proportion to those who commit crimes.

Butler should know this because, as he says, he was a good prosecutor. "I was responsible for a lot of black people going to prison," he noted in his interview with Wallace, attempting to immunize himself against being cast as some mere bleeding heart, race-card player. "I am still a prosecutor at heart," he writes bluntly in his book. "I like justice and fair play. It turns out we don't have a lot of either in our criminal-justice system right now."

Butler cogently argues that mass incarceration and the unprecedented expansion of police powers, particularly in urban communities, have counter-intuitively made us less safe and less free. He goes on to make some familiar and not very original arguments about how damaging and costly the War on Drugs has been. Here, he is not an advocate for decriminalization, but rather drug treatment, needle-exchanges, and the whole panoply of "harm reduction" strategies in opposition to arrest and incarceration.

Let's Get Free unapologetically goes on to expand the call for communities to use jury nullification as a necessary tool to, as he writes in the book, "subvert the criminal-justice system" as it now operates: "I will recommend a way that jurors can use this hidden power to make their communities safer and send a strong message for change to politicians and prosecutors. Strategic jury nullification has the potential to revolutionize American criminal justice."

The law professor makes a good case that the Founding Fathers knew that adding "trial by jury" to the Constitution introduced a kind of democratic wild card to keep over-bearing rulers in check. Contrary to many judges' instructions merely to apply the law, "[i]t's the jury's responsibility to do justice," Butler points out in Let's Get Free. "If the law is not fair, don't apply the law." It is Butler's contention, as he spelled out bluntly in a recent book talk in Washington, D.C., that how we use the law now has become fundamentally unfair. "Too many black people are in jail," he said during that talk. "Prison has become a way we deal with urban problems."

As a prosecutor, Butler saw first hand how the use of "snitches" has become integral to the criminal-justice system and has, in his mind, essentially corrupted that system. Snitches "are informants who receive a reward, usually cash or leniency from prosecution, in exchange for providing law enforcement with information about criminals," Butler writes in Free. He distinguishes snitches from witnesses in the book and goes on to provide a fulsome defense of the Stop Snitching "movement." He quotes Baltimore's Rodney Bethea and defends his Stop Fucking Snitching DVD. "One of the values of the anti-snitching movement is that it reminds us that not all law enforcement is in the best interest of communities," he writes. "When the law is selectively applied, or doesn't serve to make communities safer, providing information about lawbreakers is not a virtue."

The weakest part of the book is Butler's attempt to package his ideas and arguments in some grand unified theory of hip-hop. In a personal and idiosyncratic overview of what hip-hop means, Butler strings together a bunch of half-articulated thoughts that sound more like a conversation over a few beers than a well-defended thesis. Like in Bakari Kitwana's more thoughtful, The Hip Hop Generation: Young Blacks and the Crisis in African American Culture, hip-hop for Butler becomes a marker of some emergent post-civil rights theory of race and racial oppression in America. Butler, however, at times looks foolish trying to deal with the cultural contradictions contained within hip-hop, fudging it to fit his purposes.

He doesn't need that fudging, for his purposes stand on their on terms. Let's Get Free is an insider's guide to how the criminal-justice system aids and abets the maintenance of hyper-segregated communities and the violence in them, the creation and maintenance of apartheid schools systems, the explicit creation of racially inflected policing and system of mass incarceration, and finally, the creation and maintenance of a system of fundamental inequality in America, particularly in its urban cores. Paul Butler does us a service by putting this truth on the table and for even suggesting some ways we might actually free ourselves.

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