aIt is obvious that significant improvements have been made in the waythat the criminal justice system deals with Blacks during the history of theUnited States. Blacks have not always been afforded a right to trial, not tomention a fair one. Additionally, for years, Blacks were unable to serve onjuries, clearly affecting the way both Blacks and whites were tried. Much ofthis improvement has been achieved through various court decisions, and otherimprovements have been made through federal and state legislatures. Despitethese facts, the development of the legal system with regard to race seems tohave become stagnant.
Few in this country would argue with the fact that the United Statescriminal justice system possesses discrepancies which adversely affect Blacks inthis country. Numerous studies and articles have been composed on the manyfacets in which discrimination, or at least disparity, is obvious. Even whitesare forced to admit that statistics indicate that the Black community isdisproportionately affected by the American legal system. Controversy ariseswhen the issue of possible causes of, and also solutions to, these variationsare discussed.Although numerous articles and books have been published devising meansby which to reduce variance within the system, the most recent, and probablymost contentious, is that of Paul Butler, Associate Professor of Law, GeorgeWashington University Law School, and former Special Assistant United StatesAttorney in the District of Columbia. Butler’s thesis, published in an articlein the Yale Law Journal, is that “for pragmatic and political reasons, the blackcommunity is better off when some nonviolent lawbreakers remain in the communityrather 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.”1The means by which Butler proposes for Blacks to implement these decisions istermed jury nullification. By placing the race of the defendant above the factsof the case, and thus producing either an acquittal or a hung jury, Butler hopesthat Blacks will be able to keep a large portion of Black males out of prison.Although several commentators have voiced criticisms with the ideas ofProfessor Butler, most of these criticisms focus on what is best for theAmerican legal system, what legal precedents dictate, or as is most often thecase, on what is “right.” It is, however, negligent to simply focus on theseissues when examining the proposal of Professor Butler. Instead criticism andanalysis must be based upon what is best for the Black community in this country.From this perspective it becomes clear that although race-based jurynullification has many attractive features, it must be modified to be trulybeneficial.
The first step in analyzing Butler’s conception of jury nullification isto examine problems which Butler claims cause a need for a solution. Theseproblems are flaws in the criminal justice system, intrinsic or otherwise, whichpresent themselves as disparities in treatment of whites and Blacks. In anypolicy discussion, formulation of a plausible and effective solution clearlymust be based upon the nature of the problem. Butler lists many examples ofracism in the criminal justice system, but many are simply specific cases meantto illustrate his point.
Although these cases are important, they are nearlyimpossible to discuss in a general examination of discrimination in the justicesystem because specific cases do not necessarily entail widespreaddiscrimination. However, Butler does cite past and contemporary administrationof the death penalty, disparities between punishments for white-collar crimesand punishments for other crimes, more severe penalties for crack cocaine usersthan for powder cocaine users, and the high rate of incarceration of African-American men.2 All arguments regarding Butler’s thesis must be framed within the context of these problems, if not directly addressing them.Although Butler lists it last, he does note that the problem of highincarceration rates among Black males is the one noted most frequently.
Thisproblem is one which is essential to the discussion of jury nullification, andshould be explored specifically for a number of reasons. First, whatever thereason, the number of Black men in prison is frighteningly high. One out ofevery twelve black males in their 20s is in prison or jail. Additionally, thereare seven Black males in prison for every one white male.3 More than half ofall black males are under the supervision of the justice system in some way.4 These two factors indicate a very important trend.
A high number of black malesare in prison, and many more black males are in prison than white males. Thiswould definitely lead a reasonable person to assume at least some measure ofdiscrimination within the criminal justice system. Secondly, and perhaps moresignificantly, the high rate of incarceration, upon further examination, leadsto conclusions about its causes which then shed light on the discussion of jurynullification.The first step in examining this phenomenon is to examine what roleracism plays in the high rate. There are several levels within the system atwhich discrimination could occur.The initial contact which anyone has withthe justice system is with the police.
The police are the institution whichserve as a gateway to the legal system, and thus it is only logical to look herefirst. First, in 1984 almost 46% of those arrested for violent crimes wereBlack, while Blacks constitute only about 12% of the national population on thewhole. 5 Overall, Blacks are twice as likely to be arrested when compared towhites.6 This data could be construed to mean simply that Blacks commit morecrimes than whites. Although this may be true, “the argument that policebehavior is undistorted by racial discrimination flatly contradicts most studies,which reveal what many police officers freely admit: that police use race as anindependently significant, if not determinative, factor in deciding whom tofollow, detain, search, or arrest.”7Despite the fact that discrimination may exist among police, the arrestfigures still do not account for the vast disparity in incarceration rates.
Soother aspects of the criminal justice system must be examined. Another level inwhich discrimination can be claimed is that of the prosecutor. Becauseprosecutors have such enormous discretion when deciding which charges to file,which penalties to seek, and which cases to prosecute, there are many instancesin which a prosecutor’s racism can be turned into discrimination against adefendant. Indeed, “statistical studies indicate that prosecutors are morelikely to pursue full prosecution, file more severe charges, and seek morestringent penalties in cases involving minority defendants than in casesinvolving nonminority defendants.”8This discrimination becomes even more evident, and disturbing, whenexamining the death penalty.
A study in Georgia found that in matched cases,prosecutors sought the death penalty in 70 percent of the cases in which a Blackkilled a white, and 15 percent of the cases in which a white killed a Black.9 Although these numbers cannot be extrapolated to indict the entire nation’sprosecutors, other figures do indicate vast disparity. In McCleskey v. Kemp,the defendant introduced a comprehensive, multiple regression analysis of thedeath penalty, done by Professor David Baldus. The study controlled for 230independent variables, and indicated that race is by far the most importantfactor in whether a defendant receives the death penalty. It also found thatBlack killers of white victims are far more likely than white killers of Blackvictims to receive the death penalty.10 Although the Court upheld the deathpenalty, it only did so because of precedent which states that discriminationmust be proved through demonstration of intent, and not just results.
Thisdisparity is reflected in the number of Black death row inmates. The NAACPLegal Defense fund reports that nearly 39 percent of the inmates on death rowin the 35 states in which the death penalty is used. It also found that of allfederal death row inmates, 67 percent are Black.11Despite the fact that these statistics are startling and important, theyare insufficient to justify race-based jury nullification at face value. First,”the studies of Dean Alfred Blumstein of Carnegie-Mellon and of Joan Petersiliaof the RAND Corporation conclude that about 80 percent of the blackoverrepresentation in prison can be explained by differential involvement incrime and about 20 percent by subsequent racially discriminatory processes.”12 Twenty percent is definitely significant and does deserve action, but it is notas high of a number as some might speculate, and therefore might dictate a moremoderate solution.
This will be discussed further later. Second, “the crimeand delinquency rates of incarceration, and rates of arrest and of victimizationof those who move away from these slums are indistinguishable from whites of thesame social class.”13 This fact suggests that socioeconomic factors are veryimportant in the existence of crime.
Butler argues that the this fact is simply more impetus for theimplementation of his plan. He asserts that discrimination and segregationdeprive Blacks of adequate opportunity to improve their social and economicstanding. He describes a “radical critique,” by which he states he is persuaded,in which “the radical critic deduces that but for the (racist) environment, theAfrican-American criminal would not be a criminal.
“14 Certainly this is acompelling argument. It is not clear, however, exactly how economicinequalities cause crime. Logic would certainly support the idea that Blacks,faced with stark living conditions, would commit crime either to strike back atwhites or to attain more wealth. There are several problems with this idea,however.
First, many crimes are unrelated, if not contrary, to acquisition ofwealth. Not all murders are committed over material goods, and assuredly druguse in no way is helpful to the attainment of financial security. Second, toassume that crime is dictated by social or psychological purposes is to ignorethat fact that in most cases commission of criminal acts is governed by theproximity, ease, and convenience of reward. “In short, crime is an ill-conceived mechanism for the redistribution of wealth or for the extraction ofrevenge on one’s oppressors, and no racial or ethnic group believesotherwise.”15 Once again, the merits of jury nullification in alleviating theseproblems will be discussed, as will other solutions, later.From the viewpoint of the Black community, it may not be exactly obviouswhether discrimination in public policy and in the criminal justice system isreason enough to allow guilty criminals to go free. But even assuming thatthere is there is a significant reason to implement jury nullification, Butler’sassertions with regard to the intentions of jury nullification must be examined.
Butler claims that it is important that Black males be released not only becauseoften they are on trial as a result of discrimination, but also because they aretoo important to the community to lose. He states, “Black people have acommunity that needs building, and children who need rescuing, and as long as aperson will not hurt anyone, the community needs him there to help.”16 Hemaintains that the Black community needs its young males too much to punish them.There is significant reason to believe this idea. William Julius Wilsonstates, “black women, especially young black women, are facing a shrinking poolof “marriageable” (i.
e. economically stable) men.”17 Much of Wilson’s book isdedicated to the discussion of the dissolution of the Black family and itseffects on the Black community.It seems quite clear that Black males areimportant to Blacks on the whole, but Butler seems to underestimate the negativeeffect of crime upon the community in his attempt to prove discrimination. Thisis clear in his claim that longer punishments for possession of crack than forpowdered cocaine are evidence of discrimination. The issue is summarized quitewell by Kate Stith: While it appears true that the enhanced penalties for crackcocaine more often fall upon black defendants, the legislature’s action mightalso have been viewed as a laudatory attempt to provide enhanced protection tothose communities – largely black, according to the court’s own statistics – whoare ravaged by abuse of this potent drug.
.. If dealers in crack cocaine havetheir liberty significantly restricted, this will afford greater liberties tothe majority of citizens who are the potential victims of drug dealing andassociated violent behaviors. This is the logic of the criminal law.18 Studiesindicate that almost 97 percent of those charged with possession of crack wereblack, while 80 percent of those charged with possession of powdered cocainewere white.19 Thus, it could be argued that differences in sentences indicatean attempt to help the Black community rather than hurt it.Butler presents several hypothetical cases, one of which involves aBlack defendant arrested for possession of crack.
Butler states that this caseis easily decided, and that jury nullification is the clear answer. Hejustifies this position by stating that since the crime was victimless, andsince there exists such a disparity in sentencing procedures between crack andpowdered cocaine, there is no question that the jury nullification is thepreferable option. Butler seems to ignore the detrimental effects of drug useand distribution on the Black community.But the drug possession and distribution are not the only areas in whichit is logical to protect innocent Blacks. “Among black males and females ages15 to 44, the leading cause of death is homicide.”20 Studies also report thatmost crimes committed against Blacks are committed by Blacks. “In Chicago inthe 1970s, for example, 98 percent of black homicides were committed by otherblacks.
“21 This phenomenon is only strengthened by the segregation which Butlerreports. “In concentrating poverty, segregation acts simultaneously toconcentrate anything that is correlated with poverty: crime, drug abuse, welfaredependency, single parenthood, and educational difficulties.”22 It is onlylogical that if Blacks are surrounded by Blacks, when Blacks commit crimes, theywill victimize Blacks. Although this segregation might be ascribed to whites,that is no reason for Blacks to further worsen the situation by releasingcriminals into the community.Another factor which Butler misunderstands is the effect ofrehabilitation. He states that the idea of rehabilitation as a justificationfor punishment can be dealt with summarily. He states, “If rehabilitation werea meaningful option in American criminal justice, I would not endorsenullification in any case.
“23 According to Michael Vitiello, much of the reasonfor the abandonment of rehabilitation as a plausible reason for imprisonmentstems from the work of one man, Robert Martinson. Vitiello states that most ofthe analysis of rehabilitation is based upon the studies of Martinson, whichoriginally stated that it would never be a plausible idea. However, Martinsonlater retracted his conclusions, though none of the work based on thoseconclusions was subsequently retracted. Vitiello goes on to conclude thatrehabilitation can work and has worked, and thus abandonment is irrational. Hestates that some improvements can be made, and the rehabilitation is anachievable goal.24 Ironically, Butler refers to Vitiello’s article in hisdiscussion of rehabilitation. He refers to Vitiello’s statements about therejection of the rehabilitative model by those involved in the criminal justicesystem.
However, this reference is taken out of context, as it is simplyjustification for increased attention and discussion of rehabilitation.The importance of this analysis is hard to overestimate. Ifrehabilitation can be implemented effectively, sending Black males to prisonwould be the best possible option for Black jurors convinced of defendants’guilt. Rehabilitation of the Black community could rest upon the rehabilitationof its young male criminals. Butler admits that rehabilitation is preferable tonullification in theory, but simply does not believe that rehabilitation ispossible.It is unfair to judge jury nullification based simply on its own merits.This may sound ludicrous, but any plan must be judged in terms of itscompetition.
If no alternative exists to any given strategy, the only way inwhich the plan can be rejected is if a negative effect can be reasonablyexpected. Thus, if it can be determined that no alternative plan is superior,or even plausible, then jury nullification need only help one city, oneneighborhood, or even one person, and have no visible negative effects, to meritimplementation.Harvard Law Review proposed a number of solutions to the specificproblems of unfounded arrests by the police, misuse of prosecutorial discretion,and jury misrepresentation.
Most of these reforms involve changes as to theadmissibility of certain evidence in court. For instance, the article suggestsdisallowing the use of a criminal profile as a factor in proving probable cause.Also, it advises new tests to prove discrimination by prosecutors, which wouldallow for the introduction of statistics regarding prosecutorial practices. Theother changes are simply more reform of court practices, such as reducing thenumber of peremptory challenges which prosecutors can use in hopes of limitingthe number of Black jurors removed from juries.Butler’s argument with these solutions, recognized as being the mostimportant proposals for criminal justice reform, and others like it, is thatthey rely on powers outside of the Black community.
He would claim thatalthough these solutions might have some good effects, it is naive of Blacks toassume that they can rely on the solutions to be implemented. Butler stated,”Jury nullification is power that black people have right now and not somethingCongress has to give them.”25 Jury nullification might not seem as appealing asthe ideas proposed by Harvard Law Review, but Blacks can implement it themselves.
Although laws prohibit jurors from being instructed about jury nullification incriminal cases, Butler does provide a number of methods to implement his plan. Rap songs, black newspapers and magazines, ministers’ sermons, flyers, and othervarious Black cultural events are all arenas in which the idea could be madepopular, according to Butler. He likens the plan to the famous Montgomery busboycott, in which a grass-roots campaign had clear effects.
26Despite its relative ease of implementation, jury nullification is stillsuspect in its potential for effectiveness. First of all, althoughsocioeconomics may not completely explain the high rate of Black incarceration,studies make it fairly clear that much of the problem is not a result ofdiscrimination. This leads to the conclusion that maybe Butler’s goals shouldnot be limited to criminal justice reform, but also other areas. Second,despite Butler’s claims as to the fairness of his plan, there would no doubt bea great deal of controversy, and white backlash would be difficult to avoid.
Itis even possible that the plan would backfire by causing prosecutors to almostcompletely reject Black jurors in cases with Black defendants. It would be hardto argue with this practice since it is the prosecutors’ jobs to win cases, andif jury nullification gained much momentum, it would be doubtful if prosecutorswould take the chance that Black jurors had not heard of the plan. There mightalso be a great deal of white nullification. In short, there would probably bemany negative ramifications to the implementation of such a potentiallyunpopular plan.The question, then, is how can progress be made? One significantomission on Butler’s part is a set of goals or requests which would makeButler’s intentions clearly known.
The only goal which Butler discusses is therelease of Black males into the community. He even neglects analysis ofpossible changes which he would hope to instigate through jury nullification. Inclusion of specific reforms which would be desired would have two positiveeffects. First, it would help to avoid white backlash. By demonstrating thatjury nullification had specific purposes, Butler would deflect criticism thatthe plan is simply a racially selfish scheme to keep Blacks from receivingpunishment. Explicit goals would also make it clear to the public that thereare discriminatory practices which Butler wishes to end.
Second, only byexplaining what jury nullification is meant to accomplish can the government beexpected to reform the criminal justice system. This is especially true if thegoals include public policy changes not directly related to the legal system,such as the elimination of discriminatory housing practices or augmentation ofjob training programs. Then, if jury nullification proves effective, and thegovernment is forced to some concessions, Blacks will benefit much more thanjust from the release of Black males.Clearly, Blacks have much more to expect from public policy and thecriminal justice system than they currently experience. Discrimination, to atleast some extent, occurs at almost every level of the system.
Although thereis no way to be sure whether racism, socioeconomics, or some other mysteriousfactor is to blame for the high level of Black incarceration, clearly somethingought to change. Jury nullification, despite some gaps in Butler’s explanationand justification, is one of the only methods by which Blacks can hope to affectchange. Even if Paul Butler accomplishes nothing else, he can reasonably expectto achieve one goal: raising awareness of race in criminal justice. As Butlerstates in the conclusion of his article, “Perhaps, when policy makersacknowledge that race matters in criminal justice, the criminal law can benefitfrom the successes and failures of race consciousness in other areas of thelaw… To get criminal justice past the middlepoint, I hope that the Essay willfacilitate a dialogue among all Americans in which the significance of race willnot be dismissed or feared, but addressed.
“27Footnotes1 See Paul Butler, Racially Based Jury Nullification: Black Power in theCriminal Justice System, 105 Yale Law Review No. 3. This article was retrievedusing LEXIS, thus no specific page numbers are available. The page range of thearticle was originally 677-725.2 Id.
3 See Norval Morris, Race and Crime: What evidence is There That Race InfluencesResults in the Criminal Justice System?, 72 Judicature No.2, (1988) at 112.4 Butler, supra note 1.
5 See Bureau of the Census, Statistical Abstract of the United States 25 (106thedition, 1986).6 Morris, supra note 3.7 See 101 Harvard Law Review (1988)at 1472.8 See Harvard Law Review at 1520.9 Morris, supra note 3.10 See McCleskey v. Kemp, 107 Supreme Court (1987).
11 See Coramae Richey Mann, Unequal Justice (1993) at 202-3.12 Morris, supra note 3.13 Morris, supra note 3.14 Butler, supra note 1.15 Michael R.
Gottfredson and Travis Hirschi, A General Theory of Crime (1990),at 152.16 Butler, supra note 1.17 See William Julius Wilson, The Truly Disadvantaged: the inner city, theunderclass, and public policy (1990), at 91.18 See Kate Stith, The Government Interest in Criminal Law: Whose Interest IsIt, Anyway?, Public Values in Constitutional Law (Stephen E. Gottlieb ed.
, 1993),at 137, 15819 Randall Kennedy, The State, Criminal Law, and Racial Discrimination: AComment, 107 Harvard Law Review (1994), at 1262.20 Morris, supra note 3.21 Morris, supra note 3.
22 See Douglas S. Massey, America’s Apartheid and the Urban Underclass, SocialService Review (December 1994), at 480.23 Butler, supra note 1.24 Michael Vitiello, Reconsidering Rehabilitation, 65 Tulane Law Review (1991).25 Benjamin A. Holden, Laurie P.
Cohen, and Eleena De Lisser, Does Race AffectJuries? Injustice with Verdicts, Chicago Sun-Times (October 8, 1995) at 28.26 Butler, supra note 1.27 Butler, supra note 1.