Books about race and criminal justice are typically depressing. In the war of the establishment versus angry black men, the establishment wins the power struggle, but is left defending a vulnerable castle. The moral high ground goes to the dispossessed. Because I am white by accident of birth, I am left banging a hollow drum.
Paul Butler’s Let’s Get Free: A Hip-Hop Theory of Justice is a welcome change of pace. Sure, Butler is an angry black man. He has plenty to be angry about. The lottery of life handed him a ticket that makes it almost impossible to win big, or to hold such winnings as he may acquire. Butler was a federal prosecutor in Washington, D.C., in the public integrity division of the Justice Department. A graduate of Yale and the Harvard Law School, he was one day arrested and charged with simple assault. He went from the law’s pinnacle to the bargain basement in which we sell black lives at a discount. In truth, his experience as a criminal defendant was not all that jarring. But the experience radicalized him in a polite sort of way. He left government work, became, gasp!, a law professor. His trajectory isn’t exactly that of a modern rider on some underground railroad. He retains the privileges conferred by attendance at a law school status factory. But, and this is the rave, his heart is in the right place. He believes in jury nullification and the role of jurors as a means of challenging the status quo. In a brief paragraph or two he asks what would happen in a world in which decisions about social justice were made by those least advantaged in our society, a move perfected and made philosophically robust by John Rawls in his Theory of Justice. What group stands at the fringes of our institutions and power structure, looking in with hungry and angry eyes? Black men. And Hip Hop is the beat of this tribe. Can there be a Hip Hop theory of justice? That’s a tall order, and Butler knows it. It is one thing to recite lyrics about the impact of mass incarceration of black men on those left behind, or about anger toward the police. These expressive moves reflect real tensions. Hip Hop hasn’t yet found its Immanuel Kant yet; and it may never. I missed Butler’s book when it was published in 2009. I recommend it enthusiastically to anyone practicing criminal law. The system, to put it mildly, sucks. It is a massive shell game in which judges refuse to accept responsibility for the sentences they impose, pointing to lawmakers who create mandatory minimums. But lawmakers are ignoramuses about what goes on in a courtroom: It’s easy to chest thump in a legislative chamber and to pretend that one size fits all. The criminal justice system lacks accountability, and we deprive the one body that could make a difference and speak truth to power of the information it needs to make reasoned judgments. I am referring, of course, to juries. Just how we have come to emasculate juries is a question Butler doesn’t answer. He merely reminds how wrong the practice is. Read Butler, and then lend a hand in the struggle to set juries free to make morally responsible judgments.
Reprinted courtesy of the Connecticut Law Tribune.