Racially based jury nullification: black power in the criminal justice system.

• Author: Butler, Paul

Wonders do not confuse. We call them that

And close the matter there. But common things

surprise us. They accept the names we give

with calm, and keep them. Easy-breathing then

We brave our next small business. Well, behind

Our backs they alter. How were we to know.(1)

Gwendolyn Brooks

***

[T]he time that we're living in now . . . is not an era where one who is oppressed is looking toward the oppressor to give him some system or form of logic or reason. What is logical to the oppressor isn't logical to the oppressed. And what is reason to the oppressor isn't reason to the oppressed. The black people in this country are beginning to realize that what sounds reasonable to those who exploit us doesn't sound reasonable to us. There just has to be a new system of reason and logic devised by us who are at the bottom, if we want to get some results in this struggle that is called "the Negro revolution."(2)

Malcolm X

Introduction

I was a Special Assistant United States Attorney in the District of Columbia in 1990. 1 prosecuted people accused of misdemeanor crimes, mainly the drug and gun cases that overwhelm the local courts of most American cities.(3) As a federal prosecutor, I represented the United States of America and used that power to put people, mainly African-American men, in prison. I am also an African-American man. While at the U.S. Attorney's office, I made two discoveries that profoundly changed the way I viewed my work as a prosecutor and my responsibilities as a black person.

The first discovery occurred during a training session for new Assistants conducted by experienced prosecutors. We rookies were informed that we would lose many of our cases, despite having persuaded a jury beyond a reasonable doubt that the defendant was guilty. We would lose because some black jurors would refuse to convict black defendants who they knew were guilty.

The second discovery was related to the first, but was even more unsettling. It occurred during the trial of Marion Barry, then the second-term mayor of the District of Columbia. Barry was being prosecuted by my office for drug possession and perjury. I learned, to my surprise, that some of my fellow African-American prosecutors hoped that the mayor would be acquitted, despite the fact that he was obviously guilty of at least one of the charges--he had smoked cocaine on FBI videotape.(4) These black prosecutors wanted their office to lose its case because they believed that the prosecution of Barry was racist.

Federal prosecutors in the nation's capital hear many rumors about prominent officials engaging in illegal conduct, including drug use. Some African-American prosecutors wondered why, of all those people, the government chose to "set up" the most famous black politician in Washington, D.C.(5) They also asked themselves why, if crack is so dangerous, the FBI had allowed the mayor to smoke it. Some members of the predominantly black jury must have had similar concerns: They convicted the mayor of only one count of a fourteen-count indictment, despite the trial judge's assessment that he had "`never seen a stronger government case.'"(6) Some African-American prosecutors thought that the jury, in rendering its verdict, jabbed its black thumb in the face of a racist prosecution, and that idea made those prosecutors glad.

As such reactions suggest, lawyers and judges increasingly perceive that some African-American jurors vote to acquit black defendants for racial reasons,(7) a decision sometimes expressed as the juror's desire not to send yet another black man to jail.(8) This Essay examines the question of what role race should play in black jurors' decisions to acquit defendants in criminal cases. Specifically, I consider trials that include both African-American defendants and African-American jurors. I argue that the race of a black defendant is sometimes a legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or for an individual juror to consider in refusing to vote for conviction.(9)

My thesis 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, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers. Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants. Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws.

Part I of this Essay describes two criminal cases in the District of Columbia in which judges feared that defendants or their lawyers were sending race-conscious, "forbidden" messages to black jurors and attempted to regulate those messages. I suggest that the judicial and public responses to those cases signal a dangerous reluctance among many Americans to engage in meaningful discourse about the relationship between race and crime. In Part II, I describe racial critiques of the criminal justice system. I then examine the evolution of the doctrine of jury nullification and suggest, in light of this doctrine, that racial considerations by African-American jurors are legally and morally right. Part Ill proposes a framework for analysis of the kind of criminal cases involving black defendants in which jury nullification is appropriate, and considers some of the concerns that implementation of the proposal raises.

My goal is the subversion of American criminal justice, at least as it now exists. Through jury nullification, I want to dismantle the master's house with the master's tools.(10) My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct. Criminal conduct among African-Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day. Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts." Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.

In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all--you, me, and the black criminal. I wish that black people had the power to end racial oppression right now. African-Americans can prevent the application of one particularly destructive instrument of white supremacy--American criminal justice--to some African-American people, and this they can do immediately. I hope that this Essay makes the case for why and how they should.(11)

1. Secret Messages Everyone Hears

   Americans seem reluctant to have an open conversation about the relationship between race and crime. Lawmakers ignore the issue, judges run from it, and crafty defense lawyers exploit it. It is not surprising, then, that some African-American jurors are forced to sneak through the back door what is not allowed to come in through the front: the idea that "race matters" in criminal justice.(12) In this part, I tell two stories about attempts by defense attorneys to encourage black jurors' sympathy for their clients, and then I examine how these attempts provoked many people to act as though the idea of racial identification with black defendants was ridiculous or insulting to black people. In fact, the defense attorneys may well have been attempting to encourage black jurors' sympathy as part of their trial strategies. The lesson of the stories is that the failure of the law to address openly the relationship between race and crime fosters a willful and unhelpful blindness in many who really ought to see and allows jury nullification to go on without a principled framework. This Essay offers such a framework and encourages nullification for the purpose of black self-help.

   1. United States v. Marion Barry

      The time is January 1990. The mayor of the District of Columbia is an African-American man named Marion Barry. African-Americans make up approximately sixty-six percent of the population of the City.(13) The mayor is so popular in the black community that one local newspaper columnist has dubbed him "Mayor for Life."(14) Barry is hounded, however, by rumors of his using drugs and '"chasing women.'"(15) Barry denies the rumors and claims that they are racist.(16)

      On January 18, 1990, the mayor is contacted by an old friend, Rasheeda Moore, who tells him that she is visiting for a short time, and staying at a local hotel.(17) The mayor stops by later that afternoon and telephones Ms. Moore's room from the lobby of the hotel. He wants her to come downstairs to the lobby for a drink, but she requests that he come up to her room. The mayor assents, joins Ms. Moore in the room, and the two converse. At some point, Ms. Moore produces crack cocaine and a pipe, and invites the mayor to smoke it. He first demurs, then consents, and after he inhales smoke from the pipe, agents of the FBI and the Metropolitan Police Department storm the room. It turns out that Ms. Moore is a government...