Former Prosecutor Pens A Hip-Hop Theory Of Justice

George Washington University law professor and former prosecutor Paul Butler believes that, in order to fight for justice, Americans must sometimes fight the power of the justice system. He speaks with host Michel Martin about his new book, "Let's Get Free: A Hip Hop Theory of Justice," and his vision for justice policy.

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MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News.

Coming up, the recession forces the closure of another family of small newspapers, including the pioneering gay paper, the Washington Blade. We'll hear more about these publications and what it means, not just to gay readers, but to all people who care about diverse voices in the news. We'll have that conversation in a moment.

But first, earlier in the program, we talked about a new film that discusses the life and career of the crusading lawyer, William Kunstler. During his decades-long career, he took on the defense protestors, accused rapists and alleged terrorists when he believed their rights or a critical principle of our justice system was at stake.

But today, do attorneys still have a place at the forefront of the fight for social justice? Paul Butler believes they do. He's a professor of law at George Washington University and the author of the new book, "Let's Get Free: A Hip Hop Theory of Justice," and he joins us now in our Washington, D.C. studio. Welcome, thank you for coming.

Mr. PAUL BUTLER (Author, "Let's Get Free: A Hip Hop Theory of Justice"): Hey Michel, great to be here.

MARTIN: So what is a hip-hop theory of justice?

Mr. BUTLER: Hip-hop is doing this ground-level reporting on how the criminal justice system really works, and it's created by the people who know the system best. African-American young men are the most incarcerated group of people in the history of the world. So they're telling us now trials work, whether the police are fair, about prosecutors and defense attorneys, and they're doing it in tracks that you can dance to. It's really an amazing moment in pop-culture history.

MARTIN: Is there a track or something you would direct us to? Because I have to tell you, I was watching videos just the other night, and I saw a lot of guys rolling around in dollar bills and putting on jewelry. I didn't hear a lot about the criminal justice system, I confess.

Mr. BUTLER: And you see the police. You see the police ever present. There can be the sweetest, sappiest hip-hop song, and I'm thinking about this song this summer called "Kiss Me On The Phone" about a boy saying goodbye to his girlfriend.

(Soundbite of song, "Kiss Me On The Phone")

Mr. SOULJA BOY TELL 'EM Musician): (Rapping) Take me, you know that I miss you. I wanna get with you tonight but I cannot, baby girl, and that's the issue. Don't you know I miss you? I just want to kiss you but I can't right now, so baby kiss me through the phone.

Mr. BUTLER: And the police are there. They're everywhere in hip-hop. You know, you can watch all these sitcoms, read all these books about vampires. You can go to listen to country music. You would never know that there are 2.5 million people in prison. You can't listen to urban radio more than 20 minutes without being reminded of that fact.

MARTIN: You wrote a piece for the progressive magazine, The Nation, which is tied to your book. It's titled "10 Things You Can Do To Reduce Incarceration." Among the things you recommend that people do is listen to hip-hop, but I'm still not seeing the connection between listening to hip-hop and reducing incarceration. Why? Why do you recommend it?

Mr. BUTLER: Because not only do these people come from communities where they are most likely to be accused of crime, they also come from communities where they are most likely to be victims of crime. And so, you know, some of these people are scared to death - and again, they're telling us about that when we listen to their music. They're telling us about ways that we can be safer and more free.

The problem they're describing with criminal justice now, is it just doesn't work.

MARTIN: And I want to talk more about some of the things that you recommend. You were once a federal prosecutor. So I don't think it'll surprise many people that among the other things you encourage people to do is do your jury duty. Why is that important?

Mr. BUTLER: Because jurors have all this power. I was a prosecutor in D.C., and I was told, when I was a rookie, that sometimes in criminal cases, with drug possession, especially, we persuade the jurors beyond a reasonable doubt that the defendant was guilty, and they would still find him not guilty. And these were mostly African-American jurors. And the reason was because they didn't want to send another black man to jail.

And when I started trying cases, I found that to be exactly the case. It's called jury nullification. It's perfectly legal. It's a strategy that's been used to get rid of laws like the slavery law. It's worked. So in the book I suggest a strategic way. I call for these Martin Luther King jurors to selectively nullify to protest this war on drugs.

MARTIN: It's an interesting book because there are other ways in which you essentially urge people as a matter of conscience not to participate with the police. Just say no to the police. Don't be a professional snitch. You say don't accept money for cooperating with the police. But you also say, as you just mentioned, if you're a juror in a non-violent drug case, vote not guilty.

And there are critics who've taken issue with it. They may be very sympathetic with your desire to see fewer black men, particularly, and black people in general, incarcerated because of the destructive effect on communities, but they also make the point of who are you to say that that's a non-violent crime. If you have people in some communities, there have been stories about people, you know, firer bombing people's houses just because they asked drug dealers to move from their front porch. I mean, so who are you to say that's a non-violent crime?

Professor BUTLER: What I'm interested in Michele, is something that works and things are getting worse not better. They're more people locked up now than there were in like in the 90s, when you and I started talking about this stuff, and drugs are ever present. So what I'm looking for is a way to really get the dope boys off the street corners. That's what makes people feel unsafe. And we've got better ways to do that than locking up everybody because the result in places like D.C. and Baltimore is that about half of the young black men in their 20s have a criminal case.

MARTIN: You know, you're saying that things are getting worse and not better. It is true that the United States has one of highest incarceration rates in the world and the highest according to peer economies - if you look at places in Europe with similar economies and sort of social structures, democratic governments and so forth.

On the other hand, the level of violence in most places around the country is far lower than it was. The murder rate is far lower than it was even 10 years ago. Even in D.C., the murder rate is lower than it was 10 years ago. In New York and Washington, the homicide rate is on track to be the lowest it's been in 30 years. So how can you say it's getting worse?

Professor BUTLER: Well, New York has actually reduced their prison population and at the same time reduced its crime rate. It turns out that there's this tipping point with locking people up where when too many people are locked up, that actually increases crimes. So in jurisdictions that have safely reduced the prison population, they've seen their crime rate go down. So we got to be strategic about this. It's about being smart on crime, rather than just this tough on crime nonsense.

MARTIN: Talk to me a little bit more, if you would, in the couple of minutes that we have left about why you feel incarceration is so bad. And what, exactly, about incarceration, in your view, makes it so destructive that you have to take what I think some people would say extreme steps in order to stop the rate of increase.

Professor BUTLER: So, just to be clear, I'm not against all incarcerations. So if you're going to rob, rape, murder then yeah, you ought to be locked up for the protection of society. My concern is how we're using it for non-violent offenders. Again, 500,000 people are actually locked up for committing a non-violent drug offense and that's way too many.

If it actually got the dope boys off the street corner, maybe I'd support it, but it doesn't do that. What we're doing is disrupting families, you know? About half of the men and way more than half of the women who are in prison have children. And if they're in prison, that puts their kids at risk for going to prison. And again, so many people in some communities are locked up that getting locked up is a right of passage. In hip-hop it's called catching a case.

It's kind of like catching the flu; a little bit your fault, a little bit the luck of the draw. And so the criminal law - in my scholarly language - is losing its deterrent effect. People don't have respect for the system any more. We've got to make the system more respectable and we can do that by being more strategic about who we lock up.

MARTIN: Do you think these ideas are gaining traction? I guess what I'm asking you is do you think that anybody's listening outside of the people who listen to hip-hop?

Professor BUTLER: Absolutely. So this isn't at all geeky legal book. I wrote this for people who watch TV shows like "CSI" or "The Wire," so this is the non-fiction version of that. I'm talking about the evolution of street knowledge and the message is getting out.

So President Obama has said that it's blind and counterproductive to lock up non-violent drug offenders. He's called the war on drugs a failure. That's his word, not mine. So now we've got to ask him to put some action behind that rhetoric.

And so, you know, I think Attorney General Eric Holder has been very encouraging on these issues. We've just got to get everybody to understand it's a priority. Again, it's not about coddling criminals, it's about being smart on crimes so that we can all be safer and more free.

MARTIN: Paul Butler is a professor at George Washington University Law School. His new book is "Let's Get Free: A Hip-hop Theory of Justice." He joined us here in our Washington, D.C. studio.

If you want to read the article in The Nation that we've also been talking about, we'll have a link on our Web site. Just go to NPR.org, click on programs and then on TELL ME MORE.

Paul Butler, thank you.

Professor BUTLER: Always a pleasure.

(Soundbite of music)

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A Hip-Hop Theory of Justice

by Paul Butler

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