Black Power In The Criminal Justice System example essay topic

... Thesis 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... [I] f 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 1970's, 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 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. H estates 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 possible. 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 implementation. Harvard Law Review proposed a number of solutions to the specific problems of unfounded arrests by the police, misuse of 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 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's emmons, fly ers, 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, 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 great deal of controversy, and white backlash would be difficult to avoid. Itis 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 unpopular plan. 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, socioeconomic's, 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 middle point, 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 Footnotes 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 677-725.2 Id. 3 See Normal 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 (106 the dition, 1986). 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 Mccluskey vs. Kemp, 107 Supreme Court (1987). 11 See Coram ae 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 Hirsch i, A General Theory of Crime (1990), at 152.16 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, 15819 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 E leena De Lesser, 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.