Butler and Barkow discuss the role of prosecutors in social and racial justice (VIDEO)

In Paul Butler’s 2009 book, Let's Get Free: A Hip-Hop Theory of Justice, he dedicates an entire chapter to the question, Should good people be prosecutors? That question served as the topic of the October 28 installment of the NYU Law Forum. Butler, Associate Dean for Faculty Development and Carville Dickinson Benson Research Professor of Law at the George Washington University Law School, presented his case for why good people should not be prosecutors.

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While introducing Butler, moderator Anthony Barkow, executive director for the NYU School of Law’s Center on the Administration of Criminal Law, made his stance clear: good people should be prosecutors. “To me, being a prosecutor is one the best jobs a litigator can have,” Barkow said. “It’s enjoyable, it’s fun, but most importantly to me…it’s rewarding, because your job is to do the right thing.”

In the mid-1990s, after leaving the Department of Justice to teach at George Washington University, Butler caused a stir when he appeared on many national television shows advocating the use of jury nullification as a means of fighting the social costs of locking up nonviolent offenders. After having tried hundreds of cases as a federal prosecutor, Butler said he began to feel that his primary function as an attorney was to send blacks and Latinos to prison. The huge disparity in the numbers of black Latino defendants versus the number of white defendants caused Butler to consider whether he was a cog in a wheel of racial and social injustice. “If you were to go to a criminal court in D.C., just like in New York or just like any other big city in the country, you would think, ‘White people don’t commit crimes, white people, they’re so good, they don’t use drugs, they don’t get into fights…but blacks and Latinos, on the other hand, they’re bad.’”

Butler says that he felt his role as a black prosecutor helped reinforce that thinking. He felt his presence was meant to be evidence that the U.S. justice department was diverse, and that the law was being applied fairly, justly—to ensure the American people that “everything’s cool.”

“But, ladies and gentlemen, everything is so not cool,” Butler said. “The United States locks up more people than any country in the history of the world. …When crime goes up, the prison population goes up. When crime goes down, the prison population goes up. When crime rates stay the same, the prison population goes up.” According to Butler, this is a result of excessively harsh sentencing laws and the “dysfunctional politics of law in the United States.”

Using statistics from the Justice Department and Census Bureau, a Pew Center on the States study released in February 2009 found that one of 11 black adults is in prison or jail or on probation or parole. The study also found that black adults are four times more likely than white adults to be under correctional control.

Butler contended that with racial profiling by police and mandatory sentences for many drug crimes, prosecutors have little power to fight these problems from the inside. To answer the question at the center of the debate, the efforts of good people would be wasted as prosecutors, in Butler’s view. Barkow, however, said that attorneys, even when they are not the lead prosecutor, can and do make discretionary decisions that allow them to work within the law to have influential voices in cases. “Supervisors will often defer, extensively in my experience, to the line prosecutors,” Barkow said. “So the line prosecutors making all these discretionary decisions are really kind of driving the bus most of the time.”

Barkow, while acknowledging that racism and over-incarceration are significant problems, said that the answer to these issues is not to subvert the system, but to improve it from the inside, and to push for legislative changes. Prosecutors, Barkow said, put away dangerous criminals, and defend victims, and can move on to even more influential roles in academia, as defense lawyers, or on the bench.

Butler’s overarching position on how good people can and should behave in regards to our system of justice was quite clear, provocative, and sobering. He maintained that the way to fight social and racial injustice was not to be a part of the institutions that help to further it. “The determination of who goes to criminal court in chains…should not depend so much on race and class,” Butler said in conclusion. “As long as it does, we need people who believe in social justice and racial justice to stand up, to be strong, and to refuse to be complicit.”

Watch the full recording of the event (1 hr, 16 min)

Posted on November 2, 2009