It is obvious that significant improvements
have been made in the way that the criminal justice system deals with Blacks
during the history of the United States.
Blacks have not always been afforded a right to trial, not to mention a
fair one. Additionally, for years,
Blacks were unable to serve on juries, clearly affecting the way both Blacks
and whites were tried. Much of this
improvement has been achieved through various court decisions, and other
improvements have been made through federal and state legislatures. Despite these facts, the development of the
legal system with regard to race seems to have become stagnant.
Few in this country would argue with the fact
that the United States criminal justice system possesses discrepancies which adversely
affect Blacks in this country. Numerous
studies and articles have been composed on the many facets in which
discrimination, or at least disparity, is obvious. Even whites are forced to admit that
statistics indicate that the Black community is disproportionately affected by
the American legal system. Controversy
arises when the issue of possible causes of, and also solutions to, these
variations are discussed.
Although numerous articles and books have been
published devising means by which to reduce variance within the system, the
most recent, and probably most contentious, is that of Paul Butler, Associate
Professor of Law, George Washington University Law School, and former Special
Assistant United States Attorney in the District of Columbia. Butler's thesis, published in an article in
the Yale Law Journal, 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."1 The means by which Butler proposes for Blacks
to implement these decisions is termed jury nullification. By placing the race of the defendant above
the facts of the case, and thus producing either an acquittal or a hung jury,
Butler hopes that Blacks will be able to keep a large portion of Black males
out of prison.
Although several commentators have voiced
criticisms with the ideas of Professor Butler, most of these criticisms focus
on what is best for the American legal system, what legal precedents dictate,
or as is most often the case, on what is "right." It is, however, negligent to simply focus on
these issues when examining the proposal of Professor Butler. Instead criticism and analysis must be based
upon what is best for the Black community in this country. From this perspective it becomes clear that
although race-based jury nullification has many attractive features, it must be
modified to be truly beneficial.
The first step in analyzing Butler's conception
of jury nullification is to examine problems which Butler claims cause a need
for a solution. These problems are flaws
in the criminal justice system, intrinsic or otherwise, which present
themselves as disparities in treatment of whites and Blacks. In any policy discussion, formulation of a
plausible and effective solution clearly must be based upon the nature of the
problem. Butler lists many examples of
racism in the criminal justice system, but many are simply specific cases meant
to illustrate his point. Although these
cases are important, they are nearly impossible to discuss in a general
examination of discrimination in the justice system because specific cases do
not necessarily entail widespread discrimination. However, Butler does cite past and
contemporary administration of the death penalty, disparities between
punishments for white-collar crimes and punishments for other crimes, more
severe penalties for crack cocaine users than 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 high incarceration rates among Black males is the one noted
most frequently. This problem is one
which is essential to the discussion of jury nullification, and should be explored
specifically for a number of reasons.
First, whatever the reason, the number of Black men in prison is
frighteningly high. One out of every
twelve black males in their 20s is in prison or jail. Additionally, there are seven Black males in
prison for every one white male.3 More
than half of all 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 males are in prison, and many more black males are in prison than white
males. This would definitely lead a reasonable person to assume at least
some measure of discrimination within the criminal justice system. Secondly, and perhaps more significantly, the
high rate of incarceration, upon further examination, leads to conclusions
about its causes which then shed light on the discussion of jury nullification.
The first step in examining this phenomenon is
to examine what role racism plays in the high rate. There are several levels within the system at
which discrimination could occur. The
initial contact which anyone has with the justice system is with the
police. The police are the institution
which serve as a gateway to the legal system, and thus it is only logical to
look here first. First, in 1984 almost
46% of those arrested for violent crimes were Black, while Blacks constitute
only about 12% of the national population on the whole. 5 Overall, Blacks are twice as likely to be
arrested when compared to whites.6 This
data could be construed to mean simply that Blacks commit more crimes than
whites. Although this may be true,
"the argument that police behavior is undistorted by racial discrimination
flatly contradicts most studies, which reveal what many police officers freely
admit: that police use race as an
independently significant, if not determinative, factor in deciding whom to
follow, detain, search, or arrest."7
Despite the fact that discrimination may exist
among police, the arrest figures still do not account for the vast disparity in
incarceration rates. So other aspects of
the criminal justice system must be examined.
Another level in which discrimination can be claimed is that of the
prosecutor. Because prosecutors have
such enormous discretion when deciding which charges to file, which penalties
to seek, and which cases to prosecute, there are many instances in which a
prosecutor's racism can be turned into discrimination against a defendant. Indeed, "statistical studies indicate
that prosecutors are more likely to pursue full prosecution, file more severe
charges, and seek more stringent penalties in cases involving minority
defendants than in cases involving nonminority defendants."8
This discrimination becomes even more evident,
and disturbing, when examining 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 Black killed 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's prosecutors, other figures do
indicate vast disparity. In McCleskey v.
Kemp, the defendant introduced a comprehensive, multiple regression analysis of
the death penalty, done by Professor David Baldus. The study controlled for 230 independent
variables, and indicated that race is by far the most important factor in
whether a defendant receives the death penalty. It also found that Black
killers of white victims are far more likely than white killers of Black
victims to receive the death penalty.10
Although the Court upheld the death penalty, it only did so because of
precedent which states that discrimination must be proved through demonstration
of intent, and not just results. This
disparity is reflected in the number of Black death row inmates. The NAACP Legal Defense fund reports that
nearly 39 percent of the inmates on
death row in the 35 states in which the death penalty is used. It also found that of all federal death row
inmates, 67 percent are Black.11
Despite the fact that these statistics are startling
and important, they are insufficient to justify race-based jury nullification
at face value. First, "the studies
of Dean Alfred Blumstein of Carnegie-Mellon and of Joan Petersilia of the RAND
Corporation conclude that about 80 percent of the black overrepresentation in
prison can be explained by differential involvement in crime and about 20
percent by subsequent racially discriminatory processes."12 Twenty percent is definitely significant and
does deserve action, but it is not as high of a number as some might speculate,
and therefore might dictate a more moderate solution. This will be discussed further later. Second, "the crime and delinquency rates
of incarceration, and rates of arrest and of victimization of those who move
away from these slums are indistinguishable from whites of the same social
class."13 This fact suggests that
socioeconomic factors are very important in the existence of crime.
Butler argues that the this fact is simply more
impetus for the implementation of his plan.
He asserts that discrimination and segregation deprive Blacks of
adequate opportunity to improve their social and economic standing. He describes a "radical critique,"
by which he states he is persuaded, in which "the radical critic deduces
that but for the (racist) environment, the African-American criminal would not
be a criminal."14 Certainly this is
a compelling argument. It is not clear,
however, exactly how economic inequalities cause crime. Logic would certainly support the idea that
Blacks, faced with stark living conditions, would commit crime either to strike
back at whites or to attain more wealth.
There are several problems with this idea, however. First, many crimes are unrelated, if not
contrary, to acquisition of wealth. Not
all murders are committed over material goods, and assuredly drug use in no way
is helpful to the attainment of financial security. Second, to assume that crime is dictated by
social or psychological purposes is to ignore that fact that in most cases
commission of criminal acts is governed by the proximity, ease, and convenience
of reward. "In short, crime is an
ill-conceived mechanism for the redistribution of wealth or for the extraction
of revenge on one's oppressors, and no racial or ethnic group believes otherwise."15 Once again, the merits of jury nullification
in alleviating these problems will be discussed, as will other solutions,
later.
From the viewpoint of the Black community, it
may not be exactly obvious whether discrimination in public policy and in the
criminal justice system is reason enough to allow guilty criminals to go
free. But even assuming that there is
there is a significant reason to implement jury nullification, Butler's
assertions with regard to the intentions of jury nullification must be
examined. Butler claims that it is
important that Black males be released not only because often they are on trial
as a result of discrimination, but also because they are too important to the
community to lose. He states,
"Black people have a community that needs building, and children who need
rescuing, and as long as a person will not hurt anyone, the community needs him
there to help."16 He maintains that
the Black community needs its young males too much to punish them.
There is significant reason to believe this
idea. William Julius Wilson states,
"black women, especially young black women, are facing a shrinking pool of
"marriageable" (i.e. economically stable) men."17 Much of Wilson's book is dedicated to the discussion of the dissolution of the
Black family and its effects on the Black community. It seems quite clear that Black males are
important to Blacks on the whole, but Butler seems to underestimate the
negative effect of crime upon the community in his attempt to prove discrimination. This is clear in his claim that longer
punishments for possession of crack than for powdered cocaine are evidence of
discrimination. The issue is summarized
quite well by Kate Stith:
While it appears
true that the enhanced penalties for crack cocaine more often fall upon black
defendants, the legislature's action might also have been viewed as a laudatory
attempt to provide enhanced protection to those communities - largely black,
according to the court's own statistics - who are ravaged by abuse of this
potent drug... [I]f dealers in crack cocaine have their liberty significantly
restricted, this will afford greater liberties to the majority of citizens who
are the potential victims of drug dealing and associated violent behaviors. This is the logic of the criminal law.18
Studies indicate
that almost 97 percent of those charged with possession of crack were black,
while 80 percent of those charged with possession of powdered cocaine were
white.19 Thus, it could be argued that
differences in sentences indicate an attempt to help the Black community rather
than hurt it.
Butler presents several hypothetical cases, one
of which involves a Black defendant arrested for possession of crack. Butler states that this case is easily
decided, and that jury nullification is the clear answer. He justifies this position by stating that
since the crime was victimless, and since there exists such a disparity in
sentencing procedures between crack and powdered cocaine, there is no question
that the jury nullification is the preferable option. Butler seems to ignore the detrimental
effects of drug use and distribution on the Black community.
But the drug possession and distribution are
not the only areas in which it is logical to protect innocent Blacks. "Among black males and females ages 15
to 44, the leading cause of death is homicide."20 Studies also report that most crimes
committed against Blacks are committed by Blacks. "In Chicago in the 1970s, for example,
98 percent of black homicides were committed by other blacks."21 This phenomenon is only strengthened by the
segregation which Butler reports.
"In concentrating poverty, segregation acts simultaneously to concentrate
anything that is correlated with poverty: crime, drug abuse, welfare dependency,
single parenthood, and educational difficulties."22 It is only logical that if Blacks are
surrounded by Blacks, when Blacks commit crimes, they will victimize
Blacks. Although this segregation might
be ascribed to whites, that is no reason for Blacks to further worsen the
situation by releasing criminals into the community.
Another factor which Butler misunderstands is
the effect of rehabilitation. He states
that the idea of rehabilitation as a justification for punishment can be dealt
with summarily. He states, "If
rehabilitation were a meaningful option in American criminal justice, I would
not endorse nullification in any case."23
According to Michael Vitiello, much of the reason for the abandonment of
rehabilitation as a plausible reason for imprisonment stems from the work of
one man, Robert Martinson. Vitiello
states that most of the analysis of rehabilitation is based upon the studies of
Martinson, which originally stated that it would never be a plausible
idea. However, Martinson later retracted
his conclusions, though none of the work based on those conclusions was
subsequently retracted. Vitiello goes on
to conclude that rehabilitation can work and has worked, and thus abandonment
is irrational. He states that some
improvements can be made, and the rehabilitation is an achievable goal.24 Ironically, Butler refers to Vitiello's
article in his discussion of rehabilitation.
He refers to Vitiello's statements about the rejection of the
rehabilitative model by those involved in the criminal justice system. However, this reference is taken out of
context, as it is simply justification for increased attention and discussion
of rehabilitation.
The importance of this analysis is hard to
overestimate. If rehabilitation can be
implemented effectively, sending Black males to prison would be the best
possible option for Black jurors convinced of defendants' guilt. Rehabilitation of the Black community could
rest upon the rehabilitation of its young male criminals. Butler admits that rehabilitation is
preferable to nullification in theory, but simply does not believe that
rehabilitation is possible.
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 its competition. If no alternative exists to any given
strategy, the only way in which the plan can be rejected is if a negative
effect can be reasonably expected. Thus,
if it can be determined that no alternative plan is superior, or even
plausible, then jury nullification need only help one city, one neighborhood,
or even one person, and have no visible negative effects, to merit
implementation.
Harvard Law Review proposed a number of
solutions to the specific problems of unfounded arrests by the police, misuse of prosecutorial discretion, and jury
misrepresentation. Most of these reforms
involve changes as to the admissibility of certain evidence in court. For instance, the article suggests
disallowing the use of a criminal profile as a factor in proving probable
cause. Also, it advises new tests to
prove discrimination by prosecutors, which would allow for the introduction of
statistics regarding prosecutorial practices.
The other changes are simply more reform of court practices, such as
reducing the number of peremptory challenges which prosecutors can use in hopes
of limiting the number of Black jurors removed from juries.
Butler's argument with these solutions,
recognized as being the most important proposals for criminal justice reform,
and others like it, is that they rely on powers outside of the Black
community. He would claim that although
these solutions might have some good effects, it is naive of Blacks to assume
that they can rely on the solutions to be implemented. Butler stated, "Jury nullification is
power that black people have right now and not something Congress has to give
them."25 Jury nullification might
not seem as appealing as the ideas proposed by Harvard Law Review, but Blacks
can implement it themselves. Although
laws prohibit jurors from being instructed about jury nullification in criminal
cases, Butler does provide a number of methods to implement his plan. Rap songs, black newspapers and magazines,
ministers' sermons, flyers, and other various Black cultural events are all
arenas in which the idea could be made popular, according to Butler. He likens the plan to the famous Montgomery
bus boycott, in which a grass-roots campaign had clear effects.26
Despite its relative ease of implementation,
jury nullification is still suspect in its potential for effectiveness. First of all, although socioeconomics may not
completely explain the high rate of Black incarceration, studies make it fairly
clear that much of the problem is not a result of discrimination. This leads to the conclusion that maybe
Butler's goals should not 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 be a great deal of
controversy, and white backlash would be difficult to avoid. It is even possible that the plan would
backfire by causing prosecutors to almost completely reject Black jurors in
cases with Black defendants. It would be
hard to argue with this practice since it is the prosecutors' jobs to win
cases, and if jury nullification gained much momentum, it would be doubtful if
prosecutors would take the chance that Black jurors had not heard of the
plan. There might also be a great deal
of white nullification. In short, there
would probably be many negative ramifications to the implementation of such a
potentially unpopular plan.
The question, then, is how can progress be
made? One significant omission on
Butler's part is a set of goals or requests which would make Butler's
intentions clearly known. The only goal
which Butler discusses is the release of Black males into the community. He even neglects analysis of possible changes
which he would hope to instigate through jury nullification. Inclusion of specific reforms which would be desired
would have two positive effects. First,
it would help to avoid white backlash.
By demonstrating that jury nullification had specific purposes, Butler
would deflect criticism that the plan is simply a racially selfish scheme to
keep Blacks from receiving punishment.
Explicit goals would also make it clear to the public that there are
discriminatory practices which Butler wishes to end. Second, only by explaining what jury
nullification is meant to accomplish can the government be expected to reform
the criminal justice system. This is
especially true if the goals include public policy changes not directly related
to the legal system, such as the elimination of discriminatory housing
practices or augmentation of job training programs. Then, if jury nullification proves effective,
and the government is forced to some concessions, Blacks will benefit much more
than just from the release of Black males.
Clearly, Blacks have much more to expect from public policy and the
criminal justice system than they currently
experience. Discrimination, to at
least some extent, occurs at almost every level of the system. Although there is no way to be sure whether
racism, socioeconomics, or some other mysterious factor is to blame for the
high level of Black incarceration, clearly something ought to change. Jury nullification, despite some gaps in
Butler's explanation and justification, is one of the only methods by which
Blacks can hope to affect change. Even
if Paul Butler accomplishes nothing else, he can reasonably expect to achieve
one goal: raising awareness of race in
criminal justice. As Butler states in
the conclusion of his article, "Perhaps, when policy makers acknowledge
that race matters in criminal justice, the criminal law can benefit from the
successes and failures of race consciousness in other areas of the law... To
get criminal justice past the middlepoint, I hope that the Essay will
facilitate a dialogue among all Americans in which the significance of race
will not be dismissed or feared, but addressed."27
1 See Paul
Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice
System, 105 Yale Law Review No. 3. This
article was retrieved using LEXIS, thus no specific page numbers are available. The page range of the article was originally
677-725.
2 Id.
3 See Norval
Morris, Race and Crime: What evidence is There That Race Influences Results 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 (106th edition, 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, the underclass, and
public policy (1990), at 91.
18 See Kate
Stith, The Government Interest in Criminal Law:
Whose Interest Is It, Anyway?, Public Values in Constitutional Law
(Stephen E. Gottlieb ed., 1993), at 137, 158
19 Randall
Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 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, Social Service 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 Affect Juries?
Injustice with Verdicts, Chicago Sun-Times (October 8, 1995) at 28.
26 Butler, supra
note 1.
27 Butler, supra
note 1.
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