Let's Get Free: A Hip-Hop Theory of Justice.

• Author: Forman, James, Jr.
• Position: Book review

LET'S GET FREE: A HIP-HOP THEORY OF JUSTICE. By Paul Butler. New York: The New Press. 2009. Pp. ix, 214. $25.95.

INTRODUCTION

Advocates for less punitive crime policies in the United States face long and dispiriting odds. The difficulty of the challenge becomes clear if we compare our criminal justice outcomes with those of other nations: We lock up more people, and for longer, than anyone else in the world. We continue to use the death penalty long after Europe abandoned it, we are the only country in the world to lock up juveniles for life, and we have prisoners serving fifty-year sentences for stealing videotapes from Kmart. (1) Our courts offer little relief: the German Constitutional Court prohibits a sentence of life without parole for murder while the U.S. Supreme Court upholds the same sentence for possession of a pound and a half of cocaine. (2) Our appetite for vengeance sometimes seems insatiable: politicians make careers out of being tough on crime, only to lose elections to those who are yet tougher; (3) Alabama sheriffs deny food to inmates to turn a profit; (4) jokes about raping prisoners are part of popular culture. (5)

Enter Paul Butler. (6) Butler was a successful federal prosecutor in Washington, D.C. (pp. 1-21). He spent his days sending people to jail and was good at it. He believed his work was honorable, even courageous. "I put a lot of people in prison, and I had a great time doing it. Not only was I doing the Lord's work, I was assigned the fun part of His job description--the wrathful, vengeful, angry part" (p. 23). Butler, a black man, did not apologize for putting other blacks in prison. He was protecting black victims. When his friends suggested that somebody who cared about the plight of the black community should work for Legal Aid or as a public defender, Butler responded, "I was helping people in the most immediate way--delivering the protection of the law to communities that needed it most, making the streets safer, and restoring to victims some measure of the dignity that a punk criminal had tried to steal" (p. 24).

Butler admits that he enjoyed retaliating against the type of kids who had made his life difficult when he was young:

When you are a black kid attending a lousy public school on the South Side of Chicago and you get good test scores and you talk like a white boy, you get beat up sometimes--by other black boys with not-so-good test scores who don't end up at the prosecutor's table. Years later you might see boys who look like them at the defendant's table in the courtroom, and you--the prosecutor--point your finger at them and call them names. It is part of your job. This is justice too, the poetic kind. (pp. 23-24) Then Butler, "the Avenger of the hood," (p. 23), was arrested and charged with a crime--simple assault. The case arose out of a petty dispute with a neighbor over a parking spot that Butler owned but that the neighbor liked to use. Unfortunately for Butler, his neighbor had mental-health issues; doubly unfortunately, she had friends in the police department. Butler's story of his encounter with the criminal justice system is depressingly familiar: the arresting officer ignores his claims of innocence and fails to contact an exculpatory witness at the scene; surly courthouse staff throw an inedible lunch through the bars of his filthy holding cell as he waits to see the judge; the police lie at the trial about what Butler said when he was arrested. What is different, of course, is that Butler is a prosecutor and had never seen the system from the defendant's perspective. (7) Though Butler is acquitted, he is forever changed:

So now I describe myself as a recovering prosecutor--"recovering" because one never quite gets over it. l still like to point my finger at the bad guy. I get really angry at people who victimize others. The creep who snatches the old lady's purse--I would like to kick his ass myself. And the monster who molests little kids--I want him under the jail. I don't have a problem with the law reflecting those passions. It should. But I am scared of what can happen when those feelings get out of control. My sense of justice always has been big and bulging. What my own personal prosecution expanded is my sense of injustice. (p. 18) Butler is angry at what happened to him, but appreciative in one respect: "In some ways the experience was useful. It made a man out of me--a black man. I now share a bond with lots of people from whom I used to feel somewhat disconnected" (p. 18).

Paul Butler's arrest and prosecution transformed his thinking about crime and punishment, and Let's Get Free is his effort to cajole the nation into a similar transformation. He wants America to incarcerate fewer people, and almost no drug offenders. He explains why juries should consider nullifying in nonviolent cases and why prosecutors should rely less on informant testimony. In a chapter that should be required reading for every student considering a career in criminal law, he provocatively claims that no one who cares about justice should become a prosecutor (Chapter Six). And he argues that his proposals should be adopted because they will make all of us--including the law-abiding majority--better off.

This assertion--that punitive crime policy hurts not just criminals but the rest of us--is the heart of Let's Get Free. Butler's argument is fresh, provocative, and worth our attention.

1. HOW AMERICA'S CRIME POLICY HURTS US ALL

   Calls for reforming American crime policy--like arguments for any sort of change--typically begin by explaining why the present situation is bad. The main point of such explanations is to get people to care. In matters of crime and punishment, there are two predominant modes of argument. The most common emphasizes the harm that American criminal law inflicts on disfavored groups. Glenn Loury, a leading spokesman for this view, argues that America has created a "monstrous social machine that is grinding poor black communities to dust." (8) According to him:

   [W]e law-abiding, middle-class Americans have made decisions about social policy and incarceration, and we benefit from those decisions, and that means from a system of suffering, rooted in state violence, meted out at our request. We had choices and we decided to be more punitive. Our society--the society we have made--creates criminogenic conditions in our sprawling urban ghettoes, and then acts out rituals of punishment against them as some awful form of human sacrifice. (9) Loury's is the strongest version of the argument that the criminal system's harms fall on disadvantaged groups. In his view, middle-class America benefits from our crime policy while the poor suffer. While Loury makes the case most explicitly, others implicitly adopt a similar formulation. Bill Stuntz, for example, argues that American criminal justice suffers from insufficient local control. (10) Stuntz defines the problem as follows:

   To the suburban voters, state legislators, and state and federal appellate judges whose decisions shape policing and punishment on city streets, criminal justice policies are mostly political symbols or legal abstractions, not questions the answers to which define neighborhood life. Decisionmakers who neither reap the benefit of good decisions nor bear the cost of bad ones tend to make bad ones. Those sad propositions explain much of the inequality in American criminal justice. (11) As Stuntz frames the issue, suburbanites do not bear the costs of our nation's punitive criminal justice policies.

   Loury asserts what I will refer to as the moral case against our current crime policies. (12) Those making this claim typically argue that it is morally wrong to arrest, prosecute, or incarcerate members of relatively powerless groups at such high rates. (13) Invoking John Rawls's theory of justice, Loury asks that we go behind the "veil of ignorance," and ask what form of justice we would endorse for a society if we did not know what our position in that society would be. "[I]magine," asks Loury, "that you could be born a black American male outcast shuffling between prison and the labor market on his way to an early death to the chorus of 'nigger' or 'criminal' or 'dummy.'" (14) Yes, we would punish and have prisons, he says, but surely we would not act as harshly and vengefully as we do now. If we knew that we might end up at the bottom, he asks, "wouldn't we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social and psychic affiliation?" (15)

   The moral claim, as Loury and others articulate it, is grounded in race, and it acquires its urgency from an intolerable social fact: the increasing concentration of African Americans in the prison system during the last fifty years. At the time of Brown v. Board of Education, (16) African Americans constituted about 30 percent our prison population. (17) Today, the percentage has increased to 40 percent. (18) A black man born in the mid-to-late 1960s, after the passage of the landmark Civil Rights Act of 1964 and Voting Rights Act of 1965, is more than twice as likely to go to prison as one born in the 1940s. (19) Moreover, there is no other indicator of community well-being in which the black-white disparity is as great. Blacks are about eight times more likely to go to prison than are whites. The 8:1 disparity dwarfs black-white disparities in, for example, unemployment rates (2:1 disparity), infant mortality (2:1 disparity), and out-of-wedlock births (3:1 disparity). (20)

   And yet. Even if mass incarceration's harms are visited most painfully on poor people, and poor minorities especially, is that the extent of the harm? Moving from the empirical question to the strategic one, will race talk get us very far? (21) If the goal is to persuade Americans to care about mass incarceration, does it make sense to frame arguments around how the policy harms racial...