watcha readin, little crispy? reading (and teaching) paul butler's book let's get free: a hip hop theory of justice. butler is a relatively young black former federal prosecutor who's now a law prof at george washington. it's quite a remarkable book - or at least butler is a remarkable figure - in many ways. one would think of him as a liberal, among other things for his attack on high incarceration rates, his advocacy of drug decriminalization, his attack on racial profiling, etc: these are in fact the central themes of the the book.

if we really thought of the left-right political spectrum as coherent, however, there are massive surprising infusions of conservatism. for example, his "theory of justice" is purely unabashedly retributivist. he thinks that punishing criminals is a matter fundamentally of vengeance; that's justice. well i've often argued for that position, which gets rid of so much easy self-deceived blahblah. he purports to get this - as well as a heartfelt phenomenology and critique of a society that locks up so many of its people - from hip hop music. (he writes: "I fell in love with hip hop music on a crowded dance floor at Yale." well, that's our america, I suppose; yale is of course also where easy-e earned the notches on his ak.)

the position butler is most noted for is "jury nullification"; he thinks that american juries have a right to decide not only on the guilt of defendants, but on the rightness of the law they allegedly violated. his view cutting to the chase is that juries should refuse to convict young black men of non-violent drug offenses, even when they did commit the offense as defined in a criminal code. (jurors for justice)

the idea of jury nullification is straight-up don'ttreadonme teaparty hyperamerican reactionary excellence. in 1852, the great anarchist/legal scholar/abolitionist/argumentative prodigy lysander spooner published a gigantic book tracing the practice from magna charta to the fugitive slave act (when juries refused to convict those who harbored escaped slaves, though that was clearly against the law): an essay on trial by jury. (i'm gonna write butler to make sure he knows this work; well, i assume he does).

let's get free is a really passionate attack on our carceral society and a plea for reform. now it has some limitations. butler argues that lower rates of incarceration would make us safer. he takes himself to have "demonstrated" this, but really the wielding of statistics and so on, while suggestive, is impressionistic or even kind of careless; butler does not really go for the throat with an attempt at systematic knockdown argument. one reason for that is that the book is intended as a kind of light popularization of legal theory. that's what really accounts for book's other great weakness as well: there is very little depth of scholarship of any sort; there isn't even an index. this is particularly glaring on something like jury nullification, a serious defense of which would require much more care and erudition than butler displays.

but i have to say that the basic idea of american liberties as a way to address racism and the prison-industrial complex is extremely compelling. butler surprises over and over; it's just a very creative way through the territory: fundamentally original. how many law school deans/federal prosecutors are going to come out in support of the baltimore stop snitchin movement? butler's discussion is remarkably nuanced but also excellent common sense.look one thing you have to admire and never see is someone with no particular affiliation; someone who thinks beyond or before the left/right split.

 i also think the light touch and quick polemics are basically why my students are actually enjoying reading the book, and actually do seem to be reading it. if i were teaching trial by jury, i'd have two freaks out of 37 students reading along.

quoted by butler: i'd free all my sons. still living for today, in these last days of time.

Comments

[adamcrazypants]

rad.

I want to write that jury nullification book.

[marriotr]

Who wrote "trial by jury"? your description makes it appealing! I assume it's not the gilbert and sullivan play.

[quietdown]

Yinz follow the Peter Watts case any?

http://pittsburghalphatoomega.com/peter-watts-not-guilty-of-assault-guilty-of-perfectly-reasonable-query/

Watts defended the jury on his blog - which made sense as he'd yet to be sentenced - but every article I read on the case (that allowed comments) had at least one commenter bring up nullification & chide the ignorant jury, which was real encouraging.

Adam, write that shit!

Crispy, wish you'd taught at Pitt when I went there - your students don't know how lucky they are.

[Thomas J. Bieter]

Here is Professor Butler on the 60 Minutes TV program. http://www.youtube.com/watch?v=e8eQ_EYwQQI

As a young prosecutor, I prosecuted a case that involved some jury nullification. Four alcoholics (two Native Americans, and two guys of Finnish ancestry) had a party which ended in violence. The Finnish guys beat the Indians so severely that they suffered permanent injuries and almost died. They were charged with Aggravated Assault. The jury convicted the Finnish guys of Misdemeanor assault.

Because I thought that the case was a slam dunk, after the verdict, I asked "What Happened?" I was bluntly informed that the public defender knew that "no jury would ever convict a couple of drunken finlanders of beating up a couple of fuckin Indians."

Did the Indians get justice?

I would argue that Finlander bias (jury nullification) trumpted the proportionality aspect of justice (a conviction for the crime of felony Agg. Assault which is proportionate to the harm visited on the victims)

The trial took place in Duluth, Minnesota, where there are a lot of people of Finnish ancestry.

To Professor Butler, I say what limits, if any, are there to jury nullification?

[marriotr]

Great counterpoint, Thomas! Man...jury systems...I am still trying to understand how justification structures work for ANY justice system. Nullification plays a role in justifying ours, but it's so...uneven...Augh. I have a headache. I need to go read another book.

[CF Oxtrot]

Jury nullification exists already. It's just not called that.

[Andrew Dobbs]

Bieter makes a good point. For every nullification of the Zenger type there are 2 all white juries from the Jim Crow era that acquitted clearly culpable Klansmen for lynching some uppity brother. That being said, this is absolutely one of those baby and bathwater situations, and I am a big believer in jury nullification.

I think we must also remember that prison reform movements are vital to the proper functioning of the carceral system. Foucault points this out in Discipline and Punish: prison reform is as old as the prison, and fewer prisoners won't mean an end to the prison industrial complex, only no prisoners will.

And that *might* be the perfect Hip Hop jam. I remember hearing it for the first time and just playing it over and over and over again. I'm increasingly convinced that East Coast is the best (don't tell any other Texans or Southerners that I said this). I love my H-Town stuff, but still...

[c.t.mummey]

marriotr:

lysander spooner wrote it. follow the link.