When Paul Butler joined the Department of Justice in 1990 as a prosecutor in Washington, D.C., he considered himself an “undercover brother.” As a young black lawyer – he was 29 – in a mostly white office, and a progressive in a lock-'em-up culture, he thought he could make the system fairer from the inside. He was wrong.
In his new book “Let's Get Free: A Hip-Hop Theory of Justice,” he looks back on his experience and makes a rallying cry for reform. Now a professor of law at George Washington University, Butler calls the criminal justice system a failure. It works, he writes, “like a meat grinder,” crushing entire communities with policies “driven by emotion rather than logic.”
Recently, Butler spoke with The Crime Report's Julia Dahl about what why progressives shouldn't be prosecutors, how snitches erode communities and why the recession might actually be good for public safety.
The Crime Report: Your book is subtitled “A Hip-Hop Theory of Justice.” What does that mean?
Paul Butler: When I was teaching criminal law I was listening to a lot of hip-hop, and as I started learning about the philosophical underpinnings of criminal law – Jeremy Bentham and his utilitarian philosophy and Immanuel Kant and his retributive philosophy – I started hearing a dialogue. They were both talking about the same kind of issues: the reasons why people should be punished and about how much power the police should have. I imagined a conversation between Snoop Dogg and Kant, and Jay-Z and Bentham.
The interesting thing about the hip-hop community is that it consists of people who are most likely to be victims of crime, and they’re also most likely to be accused of crimes. Everybody knows hip-hop thinks about the police, but the interesting thing was to see how much it also considers justifications of punishment, prison, and the effect of criminal justice on communities. It was clear to me that people are interested in those ideas, so what I wanted to do was to bring some important analytical evidence to support what the hip-hop artists are saying.
TCR: You write: “There is a tipping point at which crime increases if too many people are incarcerated. The United States has passed this point. If we lock up fewer people we will be safer.” You connect this, partly, to the failure – and fall-out – of the War on Drugs. Can you explain?
Butler: We're just starting to understand the consequences of locking so many people up. The United States incarcerates more people than any democracy in the history of the free world. So right now, it’s kind of like an experiment: what happens to a society when a huge number of its citizens are incarcerated? I think we’re at a very important moment now, ironically because of the economy. It’s very expensive to lock so many people up, and taxpayers are now starting to say “we’ve had enough.” They’re not really seeing public safety improvements from locking up a lot of non-violent drug offenders, but they are seeing severe economic costs. What the states are finding now is they simply can’t go forward any more because the money has to come from somewhere, and usually it comes from the higher ed budget–ironically. In California, which for a long time had the best public universities in the country, you can almost directly chart the money leaving those schools and going to the criminal system.
I experienced this viscerally when I was writing this book. I was on sabbatical and living in Washington Heights in New York, where there are still open-air drug markets. I would be working on my laptop in the morning, making an argument about why we shouldn’t lock up drug sellers, then I’d leave to go to the taqueria to get my lunch and I’d be approached by dope boys on the corner who assumed I wanted to buy drugs. It made me mad, and I'd think, gee, you’re the guy who’s writing this book saying dope boys shouldn’t be locked up so you’re the last person who should be getting angry.
But then I realized, here I am in New York with among the toughest drug laws in the nation at that time, and it’s obviously not working. There was a police station four blocks away and everybody knew these guys were there, but the law enforcement community clearly could not eradicate the problem. [They'd make arrests occasionally] but most police understand the economic idea of the “replacement effect” when it comes to enforcing drug laws. The replacement effect means that whenever there is a demand for a product, you can never get rid of the supplies. When you take some suppliers off the street there are always other people willing to take their place. We can never arrest our way out of the drug problem because as soon as we arrest some drug sellers, the next day there are going to be three more on that street corner or in that apartment willing to sell drugs.
In the 1920s it probably would have been the same thing with liquor; but now, when I want to buy my bottle of Kendall Jackson Chardonnay, I go to a nice store and as long as I can produce my ID saying I am an adult, I have this nice consensual legal transaction. I think it would have been a lot better for people who want to consume something like marijuana if they could do that rather than having this experience that I have in this street.
TCR: Do you think that's likely to happen in our lifetime?
Butler: I think marijuana will be decriminalized within 10 years, and I see full decriminalization in about 50 years. Marijuana is on its way now, and actually the criminal justice reform movement is learning from the state-by-state approach of the gay marriage movement, which has been able to move public opinion dramatically in a very short time, in the face of hostile federal legislation, a hostile Supreme Court and for most of the time a hostile executive.
TCR: You make the argument that over-incarceration isn't just expensive and potentially immoral, it actually erodes respect for the law. How does that work?
Butler: In hip-hop, the slang for being prosecuted is called “catching a case.” Like catching a cold. The implication is that it has very little to do with you. When you get a cold, you think, well I guess I should have washed my hands more, but it was a virus, it could happen to anybody. It’s that same idea with arrest: it's a little bit your fault but mainly it's just coincidence.
The idea of punishment is: it deters crimes. People think, I’m not going to do that because I don’t want to go to prison. But if it's your expectation that you're going to go to prison, then the law doesn’t have any deterrent effect, and that’s what we’ve seen from our promiscuous use of punishment and prison in certain communities. Going to jail is a rite of passage, something that people expect will happen to them. And they're not off-base: if you’re a black man born in the 1990s, statistically you can expect that at some point you will be arrested.
TCR: I found your defense of the much-maligned “stop snitching” campaign surprisingly convincing, particularly the idea that snitching undermines trust among neighbors, which adds to dysfunction within a community. Can police still do their job without snitches?
Butler: First, let me explain the difference between a snitch and a witness. Witnesses are just ordinary civilians who see a crime and call the police. There’s almost no responsible citizen, including people in the hip-hop community, who discourages that. Most people see it as a civic virtue especially if it’s for a serious crime. Snitches, on the other hand, are people who get paid for informing on others, for helping to prosecute others. The pay is sometimes cash money, and other times it’s a break in their own criminal case.
Using snitches is lazy law enforcement. For police, snitches help make easy arrests. a proven snitch is a snitch who’s made a case against somebody else, in the eyes of the law that means they’re reliable. So if a proven snitch tells a police officer, I saw Joe use drugs, right there (that) is probable for a search or arrest warrant. But you can understand the problems. Is that snitch reliable? Do the cases he helps make really good priorities for law enforcement in that community? I don’t say police should never rely on snitches. In the case of violent crimes or property crimes, if snitches have information, then I think police should treat that evidence with healthy skepticism but they should not ignore it. But in the case of drugs, especially low-level drugs, I think the risk, the cost of reliance on snitching, exceeds the benefits.
TCR: What are those costs?
Butler: Anyone who's getting paid to be a witness, their testimony is suspect, so it doesn’t help make community safer because the evidence is not trustworthy. But more importantly, when you have these over-policed, over-punished communities like the African-American community in which one of three young black men have a criminal case, then in almost every home there's an incentive to snitch, to turn on the other houses in the block. Maybe you can help your kid get a break if you’ve got bad stuff to say about your neighbor. It brings to mind the worst kinds of totalitarian regimes from Eastern Europe (during) the Cold War, where we had citizens spying and neighbor turning against neighbor. That's the reality for many inner-city communities, and the effect is this destabilization of neighborhoods. You feel like you can’t trust your neighbor and it leads to all kinds of negative interactions.
TCR: You advocate jury ification. How can that help?
Butler: Jury ification is the idea that jurors don't have to convict someone if they think the law is unfair, even if the person is technically guilty. It’s a power that jurors have under the Constitution. It’s a controversial power, but no juror has ever been punished for practicing ification, and the Supreme Court and the lower courts have said it’s appropriate in occasional cases; but it’s not something that jurors need to be told about in every case. So it’s kind of like this secret power. And it has a storied history in our legal system. In the fugitive-slave cases, people were prosecuted for trying to help slaves escape, and when they were tried by northern juries, jurors would amend their guilt. There were also infamous cases, when people were violent against civil rights workers in the south through the 1950s and 1960s, and sometimes racist jurors would practice ification.
In my book I propose “Martin Luther King” jurors who would consider ifying for non-violent drug crimes like possession or consensual sales between adults. It would send a message to politicians … and it’s also a way to safely reduce the number of people in prison by preventing some people from being locked up when their incarceration doesn’t serve any good purpose. Part of what it does is to start a conversation. I learned it from the jurors in the District of Columbia … jurors would do it because they didn’t want to send another black man to jail.
THE POLITICS OF JUSTICE
TCR: You discuss the problem of politics in policing, specifically the fact that politicians (including the all-important District Attorney) are elected “by promising to put more people in cages.” What should they be promising?
Butler: They should be talking about public safety rather than crime. We're all advocates for public safety, and as soon as we focus on that rather than crime, we change the conversation: we make it about public policy rather than politics. We can say, well, if you’re interested in public safety, if you’re interested in getting the dope dealers off the street, then let’s talk about drug treatment, let’s talk about harm reduction, about rehabilitation and ultimately about reducing the prison population. Whereas if you talk about crime, you get these dumb slogans like “three strikes” and “lock 'em up and throw away the key,” so that shifts the conversation in an important way.
TCR: One of the most compelling parts of your book is how heavily you weigh the simple question of whether blacks should become prosecutors. You write that their presence “legitimizes” an unfair system, and that it is “difficult to contain injustice when one participates in it.” But clearly, a lily-white law enforcement community is not ideal either. What balance would you like to see?
Butler: It’s not just blacks, but also progressives. I think about this a lot because I get approached by a lot of my law students who have the same kinds of concerns and say, (they) think the way to make a difference is to be a prosecutor because pros have so much power and (they) could exercise that power in a progressive way. That was also my thinking. I went into that work as kind of an “undercover brother.” I was going to be the person who tried to channel law enforcement in a way that would benefit the communities that I came from. And I got sucked up. As I say in the book, it wasn’t so much hoodwinked as seduced…you really do get channeled towards locking people up. You understand that there’s an argument on the other side, but it’s not your job, caring about the rights of people who are accused is what the defense attorney does.
In my experience, the law enforcement culture and the idea that you’re doing “the Lord's work” by locking people up is pervasive, and it really makes you lose sight of the larger picture. As a prosecutor, I had literally 200 case jackets on my desk, and you can’t lock up people day after day, and not wonder about the effect that it has on society. But you just don’t have time to be that thoughtful or deliberative about the larger issues.
But not everyone listens to me. There are always going to be progressives and people of color who want to do that work. I've got a number of progressive students who’ve gone into prosecuting, and I just say OK, I’ll wait to hear from you, I hope that you have a different experience than I did. I don’t think that they’re bad people, I just think that frankly, they’re wrong when they say they’ll be able to make an important difference on this issue. At this point, the way to improve the criminal justice system is not to have a job where you lock up people.