Dramatic Position Probably Untenable
Paul Butler is a controversial rising star in American legal circles. He’s an African American whose background includes Harvard Law and a stint as an assistant prosecutor who won almost every one of his cases.
Today, he is a talented and tenured professor at George Washington University Law School. His incendiary ideas, including “jury nullification,” have led him to urge black jurors to ignore evidence of obvious guilt and set nonviolent black defendants free. He favors jail for defendants found guilty of rape, murder and other violent acts.
In an article he wrote 18 months ago in the Yale Law Journal, he suggested 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.”
In robberies of the wealthy, Butler has suggested, nullification (freeing guilty criminal defendants) is an option. Though theft is “clearly wrong” and the race or class of the victim “irrelevant,” it makes political sense to nullify, he says. “If the rich cannot rely on criminal law for the protection of their property … perhaps they will focus on correcting the conditions that make others want to steal from them,” he reasons.
Nullification is hardly a new legal concept. More than a century ago, the Supreme Court recognized that juries had the power to nullify. Runaway slaves were prevented from being returned to their masters as abolitionist juries ignored the law. The practice was used in the era of the Jim Crow South when men such as Byron De La Beckwith remained free as all-white juries ignored evidence of his guilt in the death of NAACP field secretary Medgar Evers. It took 30 years and a racially mixed jury to finally bring De La Beckwith to justice.
Such historical events have fueled Butler’s anger at justice in America. He has zero tolerance for the discrepancies in the sentencing of blacks and whites. He points to the glaring differences in sentences handed to African Americans who smoke crack and white Americans who snort powdered cocaine. He argues that retribution has no place in a racist justice system. To hammer home his point, he cites a Sentencing Project study that concluded African Americans receive 75 percent of drug-related prison sentences even though they make up only 13 percent of the nation’s regular drug users.
What he’s had to say concerning the law has fascinated his supporters and enraged legal scholars who argue that he is more attracted to notoriety than to justice.
Butler might agree with his critics and suggests that loyalty to race is precisely what is practiced by many lawyers all across America.
Butler, 36, acknowledges that he wants to “subvert the criminal -justice system.” And for many reasons, not the least of which is what he sees as the mistreatment of black suspects in America’s courtrooms. Whites are treated far less harshly.
Many of his ideas about the law reveal how much he’s changed in the six years since he was a prosecutor. Few people doubt his intelligence, even if they reject many of his ideas. Some credit him with having courage Others see him as a villain being carried away by anger.
Writing in May’s Atlantic Monthly, Randall Kennedy, also of Harvard, appeared to be responding directly to Butler:
“If one looks at the most admirable efforts by activists to overcome racial oppression in the United States … one finds people who do not replicate the racial alienations of the larger society but instead welcome interracial intimacy of the most profound sorts.”
Butler told a Washington Post reporter that his disappointment arises from the “the sum total of a lot of trivial slights.”
Everybody, regardless of color, receives slights of one kind or another. Perhaps Butler is most angered by his because of their unyielding persistence because he is black.
I hope, as one so gifted, he will overcome them and not wind up bitter and broken as so many promising young blacks before him have done.
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