Former Prosecutor to Jurors: Nullify!
In 1990, Paul Butler was a federal prosecutor in Washington, DC, when he was arrested for a crime he did not commit. The ordeal led him to question his career, a topic he discusses in his book Let’s Get Free: A Hip-Hop Theory of Justice. Today, he is a leading proponent of jury nullification, encouraging jurors to refuse to convict guilty people on nonviolent drug charges. I spoke with Butler over the phone in October. The interview has been edited for clarity and condensed.—Liliana Segura
LS: You once made your living urging jurors to send drug offenders to jail. Now you say they should refuse to convict. Explain.
PB: My values have remained consistent. I’ve always been concerned about making communities whole and especially protecting African-American communities. I started out by trying to do that as a prosecutor but found that my instrument was too blunt. My instrument was prison and other forms of punishment. It was counterproductive. The “war on drugs” was destabilizing communities and families. I became a critic of how many people are being locked up in this country.
LS: How did your arrest play into this evolution?
PB: It was an eye-opening experience. A lot of the things that defendants in cases that I tried had said to me—that the police lied, that there were witnesses who didn’t come forward, that the system was a setup—all of that was true. People say it shouldn’t have taken my own prosecution to open my eyes, especially since I’m a black man who grew up in Chicago. And maybe I should have known better. The system worked for me in that a jury found me not guilty and my criminal record was expunged. But this was in part because of my class privilege. I could afford the best lawyer in town. Eighty percent of people charged with crimes are poor. They can’t afford lawyers.
LS: How did you arrive at jury nullification as a tactic for fighting the drug war?
PB: I learned jury nullification from the jurors of the District of Columbia. It was commonplace that if you had a young, black defendant charged with drug possession, DC jurors were not going to send them to jail. They didn’t want to send another black man to jail. When senior prosecutors first told us rookies about this, they would roll their eyes in exasperation. Like, here we are trying to improve their city, and they don’t have the sense to lock up all these cretins. (In the prosecutor’s office, that’s what we called the defendants: “cretins” and “douche bags.”) When I left the prosecutor’s office and started to teach, it was the thing I was the most interested in studying. From a scholarly perspective, I found that it’s a proud part of our constitutional tradition, that it’s perfectly legal and indeed was embraced by the framers as a way to protect people from too powerful law enforcement and too powerful prosecutors. It says that people from the community, not the government, should have the ultimate authority over what happens to a criminal defendant.
LS: Is this an idea that is catching on?
PB: Nullification is one of the reasons now why there’s been a shift against criminalization of marijuana. If prosecutors thought that they could get convictions in these cases, they would take them to trial. If more people understood that they have the power as jurors to prevent convictions in those cases, even fewer cases would be brought.
LS: How could such an intervention be brought to scale? Would judges have to instruct juries that they have this right?
PB: In New Hampshire, for example, that’s a right that defendants have. They can get the judge to give an instruction on the power to nullify. In most states and in the federal system, defendants don’t have that right. And that’s because of a bizarre Supreme Court case that ruled that jurors have the power to nullify, but they don’t have to be told that. The Court is not likely to change its mind. It’s probably more productive to get the word out by using media and activism. We have so many people who have been affected by this; they have to be informed and organized. Jury nullification is just part of an arsenal of tools to end the failed “war on drugs.” n
In 2009, Paul Butler wrote“Ten Things You Can Do to Reduce Incarceration”for The Nation.