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.