Jury 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
are discussed.
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