Jury Nullification and Its Effects on Black America

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 ...

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...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, 158

19 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 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.