Let's Get Free
A Hip-Hop Theory of Justice
Paul Butler
(The New Press)
It all starts out with Paul Butler being arraigned in court --- despite the fact that he's a federal prosecutor there in the District of Columbia. His arrest (for threatening an old lady) raises eyebrows, but is a great device for getting the rest of us involved in the primary thesis of Let's Get Free.

That is, that America is drowning in law-and-order. 14,000,000 Americans are arrested every year. Over 500,000 people are currently in jail for non-violent drug offenses. By putting them in prison, we expose them to professional, often violent criminals. The result: more violence.

    Department of Corrections data show that about a fourth of those initially imprisoned for nonviolent crimes are sentenced for a second time for committing a violent offense.

"Whatever else it reflects, this pattern highlights the possibility that prison serves to transmit violent habits and values rather than reduce them."

Butler doesn't like the American Way of Prisons. Nor does he like the fact that "Since 1989 more people have been incarcerated for drug offences than for all violent offences combined." He also doesn't like prosecutors --- although he was one himself (and, apparently, a very successful one). He also doesn't like snitches, reveals that Anthony Tait, a member of the Hell's Angels, "made almost one million dollars for three years worth of snitching for the FBI."

What does Butler like? Despite the fact that most of us find it altogether too noisy, he is in love with something called hip-hop. He quotes from Angie Stone, "To everyone of y'all behind bars/You know that Angie loves you." There are also the Lost Boyz, whoever they may be, who sing "To all my peoples in the pen, keep ya head up."

    This kind of warm acknowledgment of the incarcerated is commonplace in hip-hop, and virtually unheard of in other popular cultures, which largely ignore the more than two million Americans in prison.

When hip-hop artists sing of their brothers in prison, it just isn't words: black family members --- fathers, brothers, sons --- are almost a third more likely to be sent to prison than whites. People like Nas are thus singing through a culture war: "If I ruled the world, imagine that.../I'd free all my sons, I'd love 'em..."

The other side of American society that Butler loves are jurors. This affection was born of his experience working with cases in the District of Columbia where retired people --- many of them black --- would appear for jury duty, "dressed up like they were going to church." He also has a plan for future jurors, a plan that some might find disturbing ... although perfectly legal (it's lodged in the Constitution, hidden, like most of the slavery clauses, behind a few innocent words).

In the fourth chapter of Let's Get Free, Butler comes up with the central tenet of his revolutionary idea, one known in the legal trade as "nullification."

All juries have the power to "disregard the law." If they don't like the statute they are supposed to enforce, or if they think the law unjust, or if they think the prosecutor is a stinker, all juries in the United States --- federal, state, or local --- have the right to set the accused free, no matter what the judge or the prosecutors say. He experienced this himself when working for the other side.

The juries would look at "this young man in chains," and their thoughts would not be "criminal." They would be with other similar young men "who helped the old lady next door take her groceries up four flights of stairs..." Or they would remember "when he was ten years old and so excited because his daddy was going to pick him up and he waited on the porch, and waited, and his father never came." Those memories are crucial to trials, he says, regardless of the law.

The system responds to legislative fiat "by locking young men in a cage. But for once these jurors had some power over the law, and when they got a little power they used it the best way they knew how."

Most of us don't know about nullification; in fact in some states it is illegal for attorneys or judges to reveal it to us. But it's part of the Constitution, and Butler wants us all to use it when we get called up for jury duty. He thinks juries can thus say "enough" to unjust and arbitrary laws and sentencing and prosecutorial misconduct built on cases created by snitches.

"Nullification is the new-school form of civil disobedience," he says. He even has a special name for those who have the power to put an end to arbitrary prosecution and courts gone wild. He calls them "Martin Luther King jurors."

--- E. W. Washington
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