It is obvious that significant improvements have b Essay Example For Students

It is obvious that significant improvements have b Essay een 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 Ameri can 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. Butlers 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 ma les 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 beneficial. The first step in analyzing Butlers 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 mus t 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 Butlers 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 nullification. 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 fo llow, detain, search, or arrest.7Despite 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 prosecutors 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.8This 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 nations 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 report s 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.11Despite 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 murde rs 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 ones 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. Canadian National Unity EssayThe question, then, is how can progress be made? One significant omission on Butlers part is a set of goals or requests which would make Butlers 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 especiall y 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 Butlers 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 wi ll facilitate a dialogue among all Americans in which the significance of race will not be dismissed or feared, but addressed.271 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 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 edition, 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 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), 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, Americas 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.