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Excerpted From: Paul Butler, Locking up My Own: Reflections of a Black (Recovering) Prosecutor, 107 California Law Review 1983 (December 2019) (35 Footnotes) (Full Document)
I was a prosecutor in the District of Columbia during the era of Locking Up Our Own. I am African American. I represented the United States in the city's criminal court and I used that power to lock up my own. If you were to go to the D.C. courthouse then, you would have thought that white people do not commit crimes. In 1990, they were almost 30 percent of the city's population, but they were almost utterly absent from the criminal court. That is one of the reasons that I was hired to be an African American prosecutor.
It turned out that I was skilled at performing both aspects of my job description.
Most of the jurors were black like me. And they were usually elderly black people--the main folks in career-obsessed D.C. who bothered to show up for jury duty--and they arrived at the superior court in their Sunday go-to-church clothes. They seemed not far removed from the 1950s, when they might have migrated to D.C. from North Carolina. It was probably a bother to be called for jury duty, but it was also an honor, because they could remember when black people were not allowed to be on juries at all.
They had expected that the defendant was going to be black, and they were right. But what they had not expected was this other African American man in a suit and tie, loudly proclaiming that his name was Paul Butler and that he represented the United States of America. These old black people would beam at me like they were thinking, "You go, boy, you represent the United States of America!"
At the time I did not know the phrase "politics of respectability," but I did know how, when I cross-examined a defendant, to mock his diction and references to his "baby's mama." I knew how, at the end of my frothy-mouthed closing statement, to button up my jacket and let my eyes roam from the defendant to the jury in a way that communicated that the jurors and I were good Negroes, but that the defendant was a thug who needed to be locked up. I won most of my cases, and Forman's book helps me understand that it was not only because of my trial advocacy skills.
In Locking Up Our Own, James Forman tells a story about Brandon, a fifteen-year-old black boy who pled guilty to possession of a gun and a small amount of marijuana. An African American judge sentenced Brandon to six months incarceration at Oak Hill, D.C.'s notorious "kiddy jail." But first Brandon got a lecture about how he had betrayed the legacy of Martin Luther King: "Dr. King didn't march and die so that you could be a fool, so that you could be out on the street, getting high, carrying a gun, and robbing people. No, young man, that was not his dream. That was not his dream at all."
To the African American jurors in D.C., I was the fulfillment of Martin Luther King's dream. My presence in the courtroom represented the journey from slavery to freedom and the promise of America. The Supreme Court has said that it is important to have diverse actors in the criminal legal process because it strengthens "public respect for our criminal justice system and the rule of law." I have described this as the "legitimization function."
I was hired to be an African American prosecutor because of course these jurors were aware of the absence of white people from the criminal court. My blackness was intended to send the soothing message that everything was cool.
It worked some of the time but not all of the time. During training, we rookie prosecutors were instructed by the experienced prosecutors that sometimes, we could persuade a jury beyond a reasonable doubt that the cretin--that was one of the names used to refer to generic defendants by my fellow prosecutors, along with "bad guy" and "douche bag"--was guilty, but if it were a non-violent drug case, the jurors would often acquit anyway. The jurors would do so, one old-timer explained while rolling his eyes, because they did not want to send another black man to jail.
It was true. It happened in my cases.
Years later, when I stopped being a prosecutor, I came to understand that what the jurors were doing was a form of self-help and a form of political protest. It was a way of preventing at least one black man from being saddled with a criminal conviction and a way of walking up to a system that treated their grandbabies like cretins and slapping that system in the face.
But when the jurors left the courthouse, they would return to their homes, often in the less safe areas of the city. It was the height of the crack epidemic, and the streets could be mad rough.
This is the consistent story of African Americans and the criminal law, though it can seem inconsistent. Black folks lament that the cops are never there when you need them--that "911 is a joke," as the Public Enemy song goes--and then they complain that their communities are "over policed." These gripes are not so much inconsistent as they are underdeveloped, or at least they have been until now.
[. . .]
And as I stand here today, I agree with the suggestions that we've heard in these discussions. We should embrace the leadership of people who have been in the system. We should enroll our non-black and -brown allies. We should make some of the political appeals that Professor Barkow described in her book. We should absolutely read Locking Up Our Own, Prisoners of Politics, and Chokehold. But most importantly, we should dream big.
Albert Brick Professor in Law, Georgetown University Law Center.
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