Analysis of Paul Butler's Race-Based Jury Nullification and His Call to Black Jurors and the African American Community

Abstract

Paul Butler argues that due to disparate impact on African Americans in the criminal justice system, African American jurors ought to exercise their right of nullification when there are African American defendants of nonviolent crimes. That is, they should refuse to convict these defendants in part to redress the racism and discrimination experienced by Blacks, and in part because Butler argues that these defendants should be addressed in the African American community instead. In this article I summarize Butler's call to nullify and critically review Leipold's and Marder's critiques of Butler's proposal. I argue that Butler's call is a principled tool to use while also working to change disparate treatment and impact due to discrimination in the criminal justice system, while also exploring the problematic issue of returning offenders to the community.