aIt 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… If 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.
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.