Q & A with Paul Butler

Paul Butler discusses jury nullification, power of hip-hop.

By Jamie Loo, First Amendment reporter

April 8, 2010

Paul Butler, author of “Let’s Get Free: A Hip-Hop Theory of Justice,” talks about jury nullification, and current issues in the war on drugs and criminal justice with Post-Exchange reporter Jamie Loo. To see video click on the link in the right sidebar.

Q: Jury nullification is one of the main subjects in your book. Can you tell us the concept behind it.

Jury nullification is the idea that if jurors think that the law is unfair or that the prosecution is biased that they don’t have to convict even if they think that the guy on trial is actually guilty. It’s perfectly constitutional it’s part of our American tradition that jurors judge the law as well as the facts. Judges don’t like it and so a lot of jurors don’t know about it. But what I suggest is that now when our criminal justice system is so dysfunctional that jurors know about this power and especially when they look at this war on drugs that Barack Obama has described as counterproductive and blind. That in a drug case, jurors are thoughtful about who they convict. That just because a guy is guilty you don’t have to convict him if you don’t think that putting this guy in jail is going to do the community any good then you don’t have to convict. So in one chapter in Let’s Get Free, I call for Martin Luther King jurors who as a way to protest this counterproductive war on drugs would say not guilty in non-violent drug cases.

Q: What should the criminal justice system do then with non-violent drug offenders?

We should understand now the problem is it’s so biased who gets prosecuted. About 60 percent of people who are locked up for drug crimes are African American even though blacks don’t use or sell drugs more than any other group. So if we think, well, what happens if we don’t lock up drug users, the vast majority of people who use drugs don’t get locked up right? So it’s not that there are not problems with drug use and selling. I wouldn’t like, don’t like, living in areas where there are guys selling an open air drug market and everybody knows some drug addicts but it’s really more of a public health issue than a criminal justice issue. Locking people up, doesn’t make people stop using drugs or stop selling drugs. We learned that the hard way during prohibition. Alcohol is by far the most destructive of any drugs. Most people don’t have a crystal meth addict or a crack addict in their family but every single family has an alcoholic and so during the 20’s we tried to deal with that problem by making it a crime to sell alcohol. And it just didn’t work. It created this illegal violent market for alcohol. The same thing we see with drugs now and when we got rid of that illegal market and we legalized the selling of alcohol it actually made us safer. So again I think if we deal with addicts through our public health system and regulate the sale of drugs much like we do now for tobacco and alcohol that we would be better off as a society.

Q: Jury duty itself is a selective process in the sense that you get called once a year, sometimes even less than that. So how can people that aren’t called for jury duty in their everyday lives help to reduce the number of people who are incarcerated in the U.S?

That’s a great question. In Let’s Get Free I have a chapter called “The Beautiful Struggle” after a speech by Martin Luther King and a hip hop album called the beautiful struggle. But the hip hop album is based on a speech Martin Luther King gave where he said we all have a role in this beautiful struggle. So some people’s role might be when you’re on a jury to be a Martin Luther King juror but everybody is not going to want to do that or as you say have the opportunity to do that. So there’s a bunch of other recommendations. From as simple to mentoring a kid, helping a guy or girl graduate from high school that goes a long way towards preventing people from going to jail. There’s even a green solution. It turns out that a lot of violent criminals have lead poisoning and lead is this contaminant that’s found in a lot of poor neighborhoods or housing projects in the paint and in the air. And there’s this very strong correlation with lead poisoning and making a kid at risk for going to jail and so if we get the lead out of our poor communities, again we’d all be safer. It’s kind a no brainer and it’s a green solution to one of the problems in criminal justice now.

Q: As a former federal prosecutor, I have some questions for you just based on some things going on in the news when it comes to criminal justice and the war on drugs. What do you think about the debate right now over whether to have a civilian trial or a military trial for Khalid Sheikh Mohammed and other 9/11 suspects?

That’s an area where I actually think that the values of transparency and open government really do argue in favor of a civilian trial. Our criminal justice system at its best is certainly capable of having 12 citizens from the community come and objectively say whether they think someone committed a crime. Military tribunals with all this secrecy and relaxed rules of evidence it’s almost like saying we don’t believe in our own system and that’s how the terrorists win. If the terrorists reduce us to a criminal justice system that’s kind of a sham with secret trials then they’ve won and I don’t want them to win so I think we have to press our democratic values including open transparent criminal trials.

Q: Some states right now are talking about legalizing marijuana. What do you think about that?

I think it’s a great idea, I think it’s the future. I can guarantee you that in 25 years it will be legal to use marijuana. It’s just a practical response because we’re never going to be able to prevent people from using drugs. Unfortunately in every society people use drugs. I say unfortunately. The problem is when there is abuse or addiction and again if we deal with those cases with medical care, with health care, especially with a mild drug like marijuana, regulate it, you know, treat it like we treat tobacco and alcohol. I certainly wish people didn’t smoke tobacco but I don’t think it’s a good idea to lock up people for doing that or for selling it. In California where again, before it was decriminalized a whole bunch of people smoked it, and now that it’s on its way to being decriminalized there we’re seeing that every day in the news, this conversation about what it’s going to look like to decriminalize, for the government to regulate the sale of marijuana. One of the things they’re seeing there is the economic benefit so they’re having this conversation about “well, if we tax it how much money will we get and how could this improve our economy. I think that’s a very important conversation that we’re going to be seeing in a bunch of different places as well.

Q: There are some states that are talking about restoring voting rights to those who have been incarcerated before. Can you give me your opinion on that?

Again, that’s a no brainer. Why would we, after someone has served their time, after someone has paid their debt to society, why would we continue to punish them? It just doesn’t make sense and what it leads to when people feel so isolated even after they’ve paid their debt, it leads to disrespect for law, it leads to people being more at risk for committing more crimes. So now we have 600,000 people a year getting out of jail. If we treat them like garbage, if we don’t give them basic civil rights, if we don’t make them want to be a contributing member of society including by voting then we’re doing ourselves in. We can be all hard core but again the people we’re ultimately hurting are ourselves.

Q: The U.S. Supreme Court just started hearing arguments in a case that will determine how the government interprets drug related convictions for immigrants. Currently two convictions for drug possession are considered the equivalent of drug trafficking and become labeled an aggravated felony. This requires expulsion from the country and prohibits immigration courts from granting exceptions based on individual life circumstances. How do you think the court should rule in this case?

I hope the court understands that all these collateral consequences that come from being convicted of a crime, all these ways of punishing people after they’ve done their time, so we talked about voter disenfranchisement and all of the bad things that happen to people who have been in this country for so long but get kicked out just because they made one relatively small mistake, it just seems unfair. And again this is a mistake using drugs that so many people make, including so many American citizens, and so many white people and they don’t get prosecuted for it. So it just seems unfair to single out these people for this act that a lot of other people have done and then punish them not once with a criminal case but over and over again by either taking away their rights or by kicking them out of the country. It just sounds downright un-American. I thought in this country we believe in second chances, we don’t believe in treating people like garbage and if you’ve made a mistake OK. Suffer the consequences be prepared for the consequences but then you got to get right up, pull yourself up. We don’t let immigrants do that when they’ve been convicted of a crime and we don’t let many other people who have got felony convictions we just continue to treat them like garbage and again I think it’s a national disgrace.