Nullifying Inequities in the Criminal Justice System

WASHINGTON —  If you were a brilliant, well-trained African-American male who hoped to be tenured at an elite White law school, the last thing to do would be to advance a legal theory that supports letting Black criminal defendants go free — even when they are guilty.
Yet that is exactly what George Washington University Law Professor Paul Butler has done.
So it came as a shock to many when he was awarded a scarce and coveted tenure appointment in 1997. But the saga of how he came to the law  —  and more specifically to the controversial theory of jury nullification — is a study of sound legal research, the inequities of the criminal justice system and the role of the Black faculty as agents of social change.
Butler recently sat down with Black Issues Publisher Frank Matthews to discuss his saga. The following is excerpted from their conversation.
BI: Critical race theory refers to a body of study that, among other things, frames the criminal justice system in a racial context. At its best, what can we look forward to in an optimum situation from critical race theory? How is it going to change the dynamics of how we understand the law and how it operates in the lives of African Americans?

PB: I think one of the most helpful understandings we get from "Critical Race Theory" is why African Americans and other minorities aren't there yet, why we haven't advanced, and especially in the legal part, which is how I approach critical race theory."  If you think about all these wonderful formal gains that were made in the 1950s and 1960s through the work of people like Thurgood Marshall, Charles Hamilton Houston and William Hastie, the question becomes: Why aren't we there yet? Discrimination is unconstitutional; at least, by the government it's unconstitutional. Private discrimination is either illegal or frowned upon.  So one of the things that "Critical Race Theory" does is explain the limits of the law, and the limits of policy in terms of improving race relations and improving the plight of people of color.