The recent dust up between former President Bill Clinton and the activist from Black Lives Matter raised the serious, and quite relevant, question about whether there are two systems of justice in this country, one white, one black.


Clinton has drawn significant attention, and increasing criticism, over his signing into law The Violent Crime Control and Law Enforcement Act of 1994. The legislation—the largest “crime control” bill in American history—added 100,000 new police officers and infused $9.7 billion into prisons to accommodate the hundreds of thousands of new inmates (many of whom would be described during the political debate as “violent predators”) those new police officers would send there.  As time would attest, a disproportionate number of these inmates would be African-Americans and Latinos.


Round’em up and Keep’em There


Besides the 1994 Violent Crime Control Act, Clinton also signed into law The Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA). While the former created the federal equivalent of “three strikes” with the intent of sending more repeat offenders to prison for lengthy periods of incarceration, ADEPA was intended to keep them there with radical changes to the availability of federal habeas corpus relief for prisoners.


Explosion of Prison Population, Prison Industrial Complex


Both draconian pieces of legislation fueled an explosion of the nation’s prison population—and Clinton, to his credit, has accepted much of the responsibility for the unconscionable growth of the American “prison industrial complex” by saying his administration “took a shotgun to a [crime] problem that needed a .22.”


Black Lives Matter


Black Lives Matter charges that Clinton’s “three strikes” provision contributed to the nation’s “mass incarceration” policy which is now under bipartisan congressional criticism for being both too harsh and unnecessary. The activist group is particularly troubled by the term “super predator” used by Clinton to describe the kind of criminals he wanted removed from society—a term, the group says, was directed at black people, and was actually used to send a disproportionate number of black offenders to prison.


Actually, as the best-selling author of “The New Jim Crow” and civil-rights activist Michelle Alexander pointed out in a September 5, 2013 interview with PBS’s Frontline,  it was former President Richard Nixon’s 1970 declaration of “war on drugs,” supported by massive LEAA federal grants to state law enforcement agencies, that started the insidious and intentional policy of sending more blacks to the nation’s prison system that any other offender group.


War on Drugs


What undisputedly evolved out of Nixon’s “war on drugs,” which was also embraced by the Reagan and Bush administrations, is the incestuous relationship between perception and reality that we do have two systems of justice in this country for different racial groups.


Jury Nullification


Paul Butler is a professor at the Georgetown University Law Center and a former trial attorney with the U.S. Justice Department. He has a new book, “Chokehold: Policing Black Men,” is scheduled for release in February 2017.


In a recent Washington Post op-ed piece, “Jury Nullification: Need a Primer,” Butler levels, and with convincing arguments, that there are indeed two racially-motivated systems of justice in this country. He opened his piece by recounting the advice seasoned prosecutors gave him in 1990 when, “as a rookie,” he was prosecuting a drug case in the District of Columbia: if you want to secure a conviction, don’t allow blacks on the jury because they don’t “want to send another black man to jail.”


This same racist prosecutorial attitude was recently discovered in Wharton County, Texas, where the district attorney was advising his assistants to keep African-Americans off juries in order to convict in criminal cases.


Drug Cases Cause Concern


As time passed, Butler came to realize that blacks on juries in D.C. had no problem convicting black defendants charged with violent crimes, but they did have serious reservations about convicting blacks charged with drug offenses. He once asked a female black juror about her “not guilty” vote in a drug case in which the defendant admitted his guilt. The juror responded: “We all know he was guilty. But he was so young.”


Butler then recalled an article he published in the Yale Law Journal shortly after he began teaching law in which he compared D.C. jurors to jurors in different stages of American history–jurors “who refused to convict American patriots of sedition against the British crown; … “who acquitted people of violating the Fugitive Slave Act;” and … “who would not punish gay people for ‘sodomy’ for having consensual sex.”


Against this historical backdrop, Butler said he “endorsed” the D.C. jurors’ protest against the selective prosecution of blacks.


Hamilton’s Advice on Jury Nullification


“Yes, the jurors had taken an oath to follow the law,” he wrote,“but they were following the advice of Alexander Hamilton, who said jurors should acquit even against the instructions of the judge, ‘if [in] exercising judgment with discretion and honesty, they have a clear conviction that the charge of the court is wrong.’”


Butler then pronounced his firm conviction that “the whole world [now] knows what African Americans have known all along. There are two justice systems in the United States: one for privileged white people, and another, for everyone else. Last year, 90 percent of the people sentenced in D.C. criminal court were African American, even though blacks make up less than half of the city’s population. Normally, most people locked up for drug crimes are African American, in spite of studies that demonstrate that blacks don’t use or sell drugs more than any other group. We make up 13 percent of the country’s population but nearly 60 percent of the people doing time for drug offenses.”


Jury Nullification Gives Jurors Special Power


Professor Butler then laid out his conclusion in support of jury nullification.


“ … an endless series of videos have shown how black people get policed: the mailman arrested in Brooklyn for yelling at the cops who almost ran him down; the teenage girl tackled by the cop at a pool party in McKinney, Tex.; Eric Garner, arrested for selling a cigarette in Staten Island and then put a chokehold that killed him.


Sick and Tired of being Sick and Tired


“Like a lot of African Americans, I am sick and tired of being sick and tired. I encourage any juror who thinks the police or prosecutors have crossed the line in a particular case to refuse to convict.


“Judges frequently make rulings that mean guilty people get off. For example, when the police have collected or analyzed in violation of the defendant’s rights under the Fourth Amendment, the evidence they found is suppressed even if that means the defendant goes free. The point of the exclusionary rule, as the principle if called, is to deter police misconduct. It lets the cops know if they don’t follow the rules, they don’t have a case. Jurors should send the police and prosecutors that same message about equal justice under the law.


“Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send a message that black lives matter. If they think that the police are treating African Americans unfairly – by engaging in racial profiling or using excessive force – they don’t have to convict, even if the defendant is guilty.”


“Similarly, if prosecutors are selectively going after African Americans for offenses that white people do not get prosecuted for (drug crimes, for example), then jurors should not endorse that discrimination. By voting ‘not guilty,’ jurors let prosecutors know that ‘just us’ justice for black people is no longer acceptable.”


While Congress studies The Sentencing Reform and Corrections Act of 2015, lawmakers should understand that Americans like Professor Butler and groups like Black Lives Matter, along with a growing consensus of like-minded activists dedicated to equal justice, are fed up with blatant injustice in the criminal justice system and are taking positive action to keep the issue in the public debate.


Criminal Justice Reforms Needed


Sentencing reform is not a cure to create a fair and equal criminal justice system. It may correct some sentencing inequities, but it will not cure the latent, and in many cases blatant, racism so prevalent among our law enforcement institutions.


Until serious reforms are adopted throughout the criminal justice system, jury nullification will continue to be discussed as a legitimate social response to the reality of the two systems of justice in America.