Background

In 1995, Professor and former prosecutor Paul Butler made a provocative, controversial proposal in the pages of the Yale Law Journal. Appearing just months after O.J. Simpson was acquitted of double murder charges by a predominantly African-American jury in Los Angeles, Butler, who is African-American, proposed that African-American jurors across the country engage in the practice of jury nullification when African-American defendants faced trial for victimless, nonviolent crimes. See Paul Butler, Racially-Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995). Because the prosecution may not, under the Constitution, appeal the acquittal of a criminal defendant, jurors essentially by "nullify" a guilty verdict that is dictated by the evidence simply by refusing to vote for conviction. Most jurisdictions require unanmious votes for conviction, so a single juror could act to nullify an otherwise valid criminal conviciton.

Butler used drug offenses as his paradigmatic example, and focused on prosecutions for crack cocaine which carry significant prison terms under federal sentencing guidelines. Arguing that "the race of a black defendant is sometimes a legally and morally appropriate factor …to consider in reaching a verdict of not guilty or …in refusing to vote for conviction," Butler premised his proposal on the large numbers of black men currently incarcerated in the United States; on intentional and unintentional racism in the American criminal justice system; and on the broader societal structures of white supremacy and black subjugation that have defined American race relations from colonial times to the present. Butler expressly drew on central tenets of critical legal theory. Anticipating arguments that jury nullification would undermine the rule of law, Butler invoked critical legal theory’s counter proposition that "law is indeterminate and incapable of neutral interpretation." He also responded to potential objections that his proposal was undemocratic by noting the long and systematic exclusion of American-Americans from meaningful participation in the U.S. democratic process. Butler analogized his proposal to the acts of civil disobedience that characterized the struggle for civil rights in the 1950’s and 1960’s, and citing Dr. Martin Luther King, Jr.’s example to argue that African-American jurors do not have a moral obligation to follow laws which they believe are morally unjust.

Butler’s proposal attracted attention and criticism. For example, Professor Andrew Liepold attacked almost every element of Butler’s argument. See Andrew D. Liepold, The Dangers of Race-Based Jury Nullificaition: A Response to Professor Butler, 44 U.C.L.A. L. Rev. 109 (1996). Leipold quesitoned the opinions of African-Americans about violence and crime cited by Butler. Leipold also distinguished Butler’s proposal from the prior common law tradition of jury nullification extending from 18^th-century England into the mid-20^th century although Butler had tried to support his proposal by reference to this prior tradition. Liepold warned that Butler’s proposal would encourage drug offenders to become even more brazen in their lawlessness and also discourage police and prosecutors from even trying to enforce drug laws in black communities. The proposal could lead to the elimination of blacks from juries or the end of the unanimity requirement for criminal convictions.

Professor Randall Kennedy also attacked Butler’s proposal especially because of its use of race as the basis for guiding decisions about justice. Randall Kennedy, Race, Crime, and the Law 295-310 (1997).

Role Play

Imagine you are spending your Spring Break during law school on jury duty at the local federal courthouse. Since you completed the course in criminal law already, you are relatively comfortable with the task at hand. It is a fairly open-and-shut case of drug possession and trafficking. The defendant is a 19-year-old African-American male charged with possessing and trafficking moderate amounts of crack cocaine and the evidence introduced at trial seems to you to support a finding of guilt beyond a reasonable doubt. A fellow juror, a middle-aged African-American woman, has proposed that the jury consider nullifcation of the guilty verdict. She argues that too many young black men are already in prison for nonviolent, victimless crimes that whites commit just as often but without facing the same risk or prosecution or the full range of repercussions that blacks face. She comments that the defendnat could easily be her son or nephew. Other jurors are vehemently reacting, and it is your turn to comment. What will you say? Prepare a statement, no longer than two-pages long, with your views on the nullification proposal. Be sure to reflect upon how your own race, gender, socioeconomic status, and political leanings affect your views and be sure to consider how the views of your fellow jurors will be affected by their identities as well. You should assume that your jury "looks like America," and is therefore composed of a broad spectrum of people.

In a recent article entitled, "Race and Recognition: Criticla Race Theory Comes of Age," 3 CommonQuest 102 (1999), Richard Ford emphasizes that critical race theorists embrace a pragmatic realism about the informal presence of race rather than arguments for legal recognition of racial and cultural difference as a general principle. "Most critical race theorists insist on the importance of race, not because racial identity deserves formal recognition, but because racism creates subordination that must be acknowledged if it is to be eliminated. CRT focuses on the specifics of racial subordination, not the abstraciton of 'recognition.' To the extent crits advance claims to rights based on race, as in affirmative action, they should be rooted in a concrete history of endemic subordination. Group identity and group rights are secondary, the means to identify the potential victims of illegitimate racial hierarhcy. In this sense Critical Race Theory is a long way from identity politics." Id., at 105. How would someone using Richard Ford's approach address the proposal that African-American jurors refrain from convicting African-American criminal defendants?