Racial Profileing

by which to reduce variance within the system, the most recent, and probably most contentious, is that of Paul Butler, Associate Professor of Law, George Washington University Law School, and former Special Assistant United States Attorney in the District of Columbia. Butler's thesis, published in an article in the Yale Law Journal, is 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. The decision as to what kind of conduct by African-Americans ought to be punished is better made by African- Americans themselves."1 The means by which Butler proposes for Blacks to implement these decisions is termed jury nullification. By placing the race of the defendant above the facts of the case, and thus producing either an acquittal or a hung jury, Butler hopes that Blacks will be able to keep a large portion of Black males out of prison. Although several commentators have voiced criticisms with the ideas of Professor Butler, most of these criticisms focus on what is best for the American legal system, what legal precedents dictate, or as is most often the case, on what is "right." It is, however, negligent to simply focus on these issues when examining the proposal of Professor Butler. Instead criticism and analysis must be based upon what is best for the Black community in this country. From this perspective it becomes clear that although race-based jury nullification has many attractive features, it must be modified to be truly beneficial. The first step in analyzing Butler's conception of jury nullification is to examine problems which Butler claims cause a need for a solution. These problems are flaws in the criminal justice system, intrinsic or otherwise, which present themselves as disparities in treatment of whites and Blacks. In any policy discussion, formulation of a plausible and effective solution clearly must be based upon the nature of the problem. Butler lists many examples of racism in the criminal justice system, but many are simply specific cases meant to illustrate his point. Although these cases are important, they are nearly impossible to discuss in a general examination of discrimination in the justice system because specific cases do not necessarily entail widespread discrimination. However, Butler does cite past and contemporary administration of the death penalty, disparities between punishments for white-collar crimes and punishments for other crimes, more severe penalties for crack cocaine users than for powder cocaine users, and the high rate of incarceration of African-American men.2 All arguments regarding Butler's thesis must be framed within the context of these problems, if not directly addressing them. Although Butler lists it last, he does note that the problem of high incarceration rates among Black males is the one noted most frequently. This problem is one which is essential to the discussion of jury nullification, and should be explored specifically for a number of reasons. First, whatever the reason, the number of Black men in prison is frighteningly high. One out of every twelve black males in their 20s is in prison or jail. Additionally, there are seven Black males in prison for every one white male.3 More than half of all black males are under the supervision of the justice system in some way.4 These two factors indicate a very important trend. A high number of black males are in prison, and many more black males are in prison than white males. This would definitely lead a reasonable person to assume at least some measure of discrimination within the criminal justice system. Secondly, and perhaps more significantly, the high rate of incarceration, upon further examination, leads to conclusions about its causes which then shed light on the discussion of jury nullification. The first step in examining this phenomenon is to examine what role racism plays in the high rate. There are several

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