aJury Nullification and Its Effects on Black America
It is obvious that significant improvements have been made in the way
that the criminal justice system deals with Blacks during the history of the
United States. Blacks have not always been afforded a right to trial, not to
mention a fair one. Additionally, for years, Blacks were unable to serve on
juries, clearly affecting the way both Blacks and whites were tried. Much of
this improvement has been achieved through various court decisions, and other
improvements have been made through federal and state legislatures. Despite
these facts, the development of the legal system with regard to race seems to
have become stagnant.
Few in this country would argue with the fact that the United States
criminal justice system possesses discrepancies which adversely affect Blacks in
this country. Numerous studies and articles have been composed on the many
facets in which discrimination, or at least disparity, is obvious. Even whites
are forced to admit that statistics indicate that the Black community is
disproportionately affected by the American legal system. Controversy arises
when the issue of possible causes of, and also solutions to, these variations
Although numerous articles and books have been published devising means
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
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
The first step in examining this phenomenon is to examine what role
racism plays in the high rate. There are several levels within the system at
which discrimination could occur.The initial contact which anyone has with
the justice system is with the police. The police are the institution which
serve as a gateway to the legal system, and thus it is only logical to look here
first. First, in 1984 almost 46% of those arrested for violent crimes were
Black, while Blacks constitute only about 12% of the national population on the
whole. 5 Overall, Blacks are twice as likely to be arrested when compared to
whites.6 This data could be construed to mean simply that Blacks commit more
crimes than whites. Although this may be true, “the argument that police
behavior is undistorted by racial discrimination flatly contradicts most studies,
which reveal what many police officers freely admit: that police use race as an
independently significant, if not determinative, factor in deciding whom to
follow, detain, search, or arrest.”7
Despite the fact that discrimination may exist among police, the arrest
figures still do not account for the vast disparity in incarceration rates. So
other aspects of the criminal justice system must be examined. Another level in
which discrimination can be claimed is that of the prosecutor. Because
prosecutors have such enormous discretion when deciding which charges to file,
which penalties to seek, and which cases to prosecute, there are many instances
in which a prosecutor’s racism can be turned into discrimination against a
defendant. Indeed, “statistical studies indicate that prosecutors are more
likely to pursue full prosecution, file more severe charges, and seek more
stringent penalties in cases involving minority defendants than in cases
involving nonminority defendants.”8
This discrimination becomes even more evident, and disturbing, when
examining the death penalty. A study in Georgia found that in matched cases,
prosecutors sought the death penalty in 70 percent of the cases in which a Black
killed a white, and 15 percent of the cases in which a white killed a Black.9
Although these numbers cannot be extrapolated to indict the entire nation’s
prosecutors, other figures do indicate vast disparity. In McCleskey v. Kemp,
the defendant introduced a comprehensive, multiple regression analysis of the
death penalty, done by Professor David Baldus. The study controlled for 230
independent variables, and indicated that race is by far the most important
factor in whether a defendant receives the death penalty. It also found that
Black killers of white victims are far more likely than white killers of Black
victims to receive the death penalty.10 Although the Court upheld the death
penalty, it only did so because of precedent which states that discrimination
must be proved through demonstration of intent, and not just results.This
disparity is reflected in the number of Black death row inmates. The NAACP
Legal Defense fund reports that nearly 39 percent of the inmates on death row
in the 35 states in which the death penalty is used. It also found that of all
federal death row inmates, 67 percent are Black.11
Despite the fact that these statistics are startling and important, they
are insufficient to justify race-based jury nullification at face value. First,
“the studies of Dean Alfred Blumstein of Carnegie-Mellon and of Joan Petersilia
of the RAND Corporation conclude that about 80 percent of the black
overrepresentation in prison can be explained by differential involvement in
crime and about 20 percent by subsequent racially discriminatory processes.”12
Twenty percent is definitely significant and does deserve action, but it is not
as high of a number as some might speculate, and therefore might dictate a more
moderate solution. This will be discussed further later. Second, “the crime
and delinquency rates of incarceration, and rates of arrest and of victimization
of those who move away from these slums are indistinguishable from whites of the
same social class.”13 This fact suggests that socioeconomic factors are very
important in the existence of crime.
Butler argues that the this fact is simply more impetus for the
implementation of his plan. He asserts that discrimination and segregation
deprive Blacks of adequate opportunity to improve their social and economic
standing. He describes a “radical critique,” by which he states he is persuaded,
in which “the radical critic deduces that but for the (racist) environment, the
African-American criminal would not be a criminal.”14 Certainly this is a
compelling argument. It is not clear, however, exactly how economic
inequalities cause crime. Logic would certainly support the idea that Blacks,
faced with stark living conditions, would commit crime either to strike back at
whites or to attain more wealth. There are several problems with this idea,
however. First, many crimes are unrelated, if not contrary, to acquisition of
wealth. Not all murders are committed over material goods, and assuredly drug
use in no way is helpful to the attainment of financial security. Second, to
assume that crime is dictated by social or psychological purposes is to ignore
that fact that in most cases commission of criminal acts is governed by the
proximity, ease, and convenience of reward. “In short, crime is an ill-
conceived mechanism for the redistribution of wealth or for the extraction of
revenge on one’s oppressors, and no racial or ethnic group believes
otherwise.”15 Once again, the merits of jury nullification in alleviating these
problems will be discussed, as will other solutions, later.
From the viewpoint of the Black community, it may not be exactly obvious
whether discrimination in public policy and in the criminal justice system is
reason enough to allow guilty criminals to go free. But even assuming that
there is there is a significant reason to implement jury nullification, Butler’s
assertions with regard to the intentions of jury nullification must be examined.
Butler claims that it is important that Black males be released not only because
often they are on trial as a result of discrimination, but also because they are
too important to the community to lose. He states, “Black people have a
community that needs building, and children who need rescuing, and as long as a
person will not hurt anyone, the community needs him there to help.”16 He
maintains that the Black community needs its young males too much to punish them.
There is significant reason to believe this idea. William Julius Wilson
states, “black women, especially young black women, are facing a shrinking pool
of “marriageable” (i.e. economically stable) men.”17 Much of Wilson’s book is
dedicated to the discussion of the dissolution of the Black family and its
effects on the Black community.It seems quite clear that Black males are
important to Blacks on the whole, but Butler seems to underestimate the negative
effect of crime upon the community in his attempt to prove discrimination. This
is clear in his claim that longer punishments for possession of crack than for
powdered cocaine are evidence of discrimination. The issue is summarized quite
well by Kate Stith: While it appears true that the enhanced penalties for crack
cocaine more often fall upon black defendants, the legislature’s action might
also have been viewed as a laudatory attempt to provide enhanced protection to
those communities – largely black, according to the court’s own statistics – who
are ravaged by abuse of this potent drug… If dealers in crack cocaine have
their liberty significantly restricted, this will afford greater liberties to
the majority of citizens who are the potential victims of drug dealing and
associated violent behaviors. This is the logic of the criminal law.18 Studies
indicate that almost 97 percent of those charged with possession of crack were
black, while 80 percent of those charged with possession of powdered cocaine
were white.19 Thus, it could be argued that differences in sentences indicate
an attempt to help the Black community rather than hurt it.
Butler presents several hypothetical cases, one of which involves a
Black defendant arrested for possession of crack. Butler states that this case
is easily decided, and that jury nullification is the clear answer. He
justifies this position by stating that since the crime was victimless, and
since there exists such a disparity in sentencing procedures between crack and
powdered cocaine, there is no question that the jury nullification is the
preferable option. Butler seems to ignore the detrimental effects of drug use
and distribution on the Black community.
But the drug possession and distribution are not the only areas in which
it is logical to protect innocent Blacks. “Among black males and females ages
15 to 44, the leading cause of death is homicide.”20 Studies also report that
most crimes committed against Blacks are committed by Blacks. “In Chicago in
the 1970s, for example, 98 percent of black homicides were committed by other
blacks.”21 This phenomenon is only strengthened by the segregation which Butler
reports. “In concentrating poverty, segregation acts simultaneously to
concentrate anything that is correlated with poverty: crime, drug abuse, welfare
dependency, single parenthood, and educational difficulties.”22 It is only
logical that if Blacks are surrounded by Blacks, when Blacks commit crimes, they
will victimize Blacks. Although this segregation might be ascribed to whites,
that is no reason for Blacks to further worsen the situation by releasing
criminals into the community.
Another factor which Butler misunderstands is the effect of
rehabilitation. He states that the idea of rehabilitation as a justification
for punishment can be dealt with summarily. He states, “If rehabilitation were
a meaningful option in American criminal justice, I would not endorse
nullification in any case.”23 According to Michael Vitiello, much of the reason
for the abandonment of rehabilitation as a plausible reason for imprisonment
stems from the work of one man, Robert Martinson. Vitiello states that most of
the analysis of rehabilitation is based upon the studies of Martinson, which
originally stated that it would never be a plausible idea. However, Martinson
later retracted his conclusions, though none of the work based on those
conclusions was subsequently retracted. Vitiello goes on to conclude that
rehabilitation can work and has worked, and thus abandonment is irrational. He
states that some improvements can be made, and the rehabilitation is an
achievable goal.24 Ironically, Butler refers to Vitiello’s article in his
discussion of rehabilitation. He refers to Vitiello’s statements about the
rejection of the rehabilitative model by those involved in the criminal justice
system. However, this reference is taken out of context, as it is simply
justification for increased attention and discussion of rehabilitation.
The importance of this analysis is hard to overestimate. If
rehabilitation can be implemented effectively, sending Black males to prison
would be the best possible option for Black jurors convinced of defendants’
guilt. Rehabilitation of the Black community could rest upon the rehabilitation
of its young male criminals. Butler admits that rehabilitation is preferable to
nullification in theory, but simply does not believe that rehabilitation is
It is unfair to judge jury nullification based simply on its own merits.
This may sound ludicrous, but any plan must be judged in terms of its
competition. If no alternative exists to any given strategy, the only way in
which the plan can be rejected is if a negative effect can be reasonably
expected. Thus, if it can be determined that no alternative plan is superior,
or even plausible, then jury nullification need only help one city, one
neighborhood, or even one person, and have no visible negative effects, to merit
Harvard Law Review proposed a number of solutions to the specific
problems of unfounded arrests by the police, misuse of prosecutorial discretion,
and jury misrepresentation. Most of these reforms involve changes as to the
admissibility of certain evidence in court. For instance, the article suggests
disallowing the use of a criminal profile as a factor in proving probable cause.
Also, it advises new tests to prove discrimination by prosecutors, which would
allow for the introduction of statistics regarding prosecutorial practices. The
other changes are simply more reform of court practices, such as reducing the
number of peremptory challenges which prosecutors can use in hopes of limiting
the number of Black jurors removed from juries.
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
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.
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
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),
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.