Racial Profileing

By placing the race of the defendant above the facts of the case, and thus producing either an acquittal or a hung jury, Butler hopes that Blacks will be able to keep a large portion of Black males out of prison. Although several commentators have voiced criticisms with the ideas of Professor Butler, most of these criticisms focus on what is best for the American legal system, what legal precedents dictate, or as is most often the case, on what is "right." It is, however, negligent to simply focus on these issues when examining the proposal of Professor Butler. Instead criticism and analysis must be based upon what is best for the Black community in this country. From this perspective it becomes clear that although race-based jury nullification has many attractive features, it must be modified to be truly beneficial. The first step in analyzing Butler's conception of jury nullification is to examine problems which Butler claims cause a need for a solution. These problems are flaws in the criminal justice system, intrinsic or otherwise, which present themselves as disparities in treatment of whites and Blacks. In any policy discussion, formulation of a plausible and effective solution clearly must be based upon the nature of the problem. Butler lists many examples of racism in the criminal justice system, but many are simply specific cases meant to illustrate his point. Although these cases are important, they are nearly impossible to discuss in a general examination of discrimination in the justice system because specific cases do not necessarily entail widespread discrimination. However, Butler does cite past and contemporary administration of the death penalty, disparities between punishments for white-collar crimes and punishments for other crimes, more severe penalties for crack cocaine users than for powder cocaine users, and the high rate of incarceration of African-American men.