October 15th, 2010 – by Howard Zehr (category: Restorative Justice)
“The American criminal justice system is so dysfunctional that it presents well-intentioned people with a dilemma. Should good people cooperate with it?”
Paul Butler should know whereof he speaks: he is a former federal prosecutor.
Speaking of prison, he says, “The criminal justice system gives the state a monopoly on exercising that kind of retribution. It’s legal hate.”
“The problem is that it’s hard to contain. In the United States the rush to punish is out of control. In addition to the violent creeps I put away, I sent hundred of other people to prison who should not be there. Their incarceration only makes things worse – for them and especially for us on the outside. We would all be better off if I lost those cases. We would be safer and more free.”
“But I was too good a prosecutor to lose much. And then I got locked up myself.”
Butler was falsely charged. He was eventually found not guilty because he knew the ropes and could hire a good attorney. Significantly, and not coincidentally, Butler is African American.
In Let’s Get Free: A Hip-Hop Theory of Justice, Paul Butler tells his story, then analyzes the US system of punishment – its overuse of prison, its disproportionate impact on communities of color, the threats to freedom it poses, the false sense of security it exudes. He suggests a number of remedies, though none quite get at the basic question of punishment.
Butler argues that incarceration lowers crime to a certain point; once this tipping point is reached, however, prison actually increases crime. America has far exceeded that point. If we released 500,000 non-violent offenders, he says, we would be both safer and freer.
He also argues that this system puts too much power into the hands of the state.
Given these concerns, Butler calls for juries to exercise their right to nullify the law when they think it is being inappropriately applied. The U. S. Constitution recognizes the right of juries to disregard evidence and acquit a defendant when they believe that the law is wrong or unfairly applied. But few jurors know this. In fact, the Supreme Court has recognized the right of juries to nullify but ruled that they should not be told they have this right. As Butler says, when juries nullify they act lawfully, but no one is required to tell them they have this option.
Here is where it gets interesting. In cases of minor drug violations, when the law is clearly being enforced in a discriminatory manner, Butler calls for jury nullification as an act of civil disobedience: “…now is the time for Martin Luther King jurors…. Nullification is the new-school form of civil disobedience.” His argument for this and his campaign for jury nullification can be found at www.JurorsforJustice.com.
Butler’s chapter entitled “Should Good People Be Prosecutors?” is a reflection on the complexities of trying to “do good” within political and punitive systems and cultures. It is a helpful case study for those who are considering the pros and cons of working at social change from within or from outside of systems. It is also an important read for those considering the legal profession as an avenue for social change.
For real transformation to happen we must listen to those most affected by justice. Thus, Butler concludes, we have much to learn about justice from hip-hop culture: “Believe it or not, the culture provides a blueprint for a system that would enhance public safety and treat all people with respect. Hip-hop has the potential to transform justice in the United States.” Hip-hop culture clearly identifies the unintended consequences of incarceration including the impact on families, especially children. Butler quotes the rapper Makaveli: “My homeboy’s doin life, his baby mama be stressin’ / Sheddin tears when her son, finally ask that question / Where my daddy at? Mama why we live so poor?”
According to Butler, hip-hop has three core principles that inform its ideas about justice. The second and third are these: Offenders are human beings who deserve respect and love. Communities are being destroyed by both crime and punishment.
The first core principle reveals the limitation of Butler’s hip-hop theory of justice from a restorative justice perspective: “..people who harm others should be harmed in return.” Neither Butler or most hip-hop culture questions the fundamental tit-for-tat nature of justice. Nevertheless, we have much to learn by listening to these voices.