Mary Fan

Paul Butler’s new book Let’s Get Free is essential reading for those who care about American criminal justice, prosecutorial power, and doing justice from inside the system.  It is also a beautiful rarity for a book of big scholarly ideas: page-turning reading.  The writing hums with the rhythm, flow, and narrative of hip hop at its best—one of the inspirations for an intriguing chapter and the book’s subtitle: A Hip-Hop Theory of Justice.  The intimate portrait of the prosecutor and the criminal justice system that Paul presents is an important contribution to the literature penetrating the opacity of prosecutorial power, practices and pressures.¹

It is a tribute to how successfully Paul liberates his scholarly ideas from the stilted prose that dooms legal scholarship to limited readership that one of my law students recommended this hot new book to me.  He was moved and inspired by the book enough to spread the word and seek to discuss it.  This is the power of great ideas, set in beautiful prose, made compelling through narrative.  And narrative is the thread that binds this book of many big ideas.

A Recovering Prosecutor

We begin with a redemption story: Paul is about to impress his mom watching him in trial by letting the prostitute he is prosecuting have it on cross-examination.   This is just practice for Paul the star prosecutor rising fast through the ranks to join the elite Department of Justice Public Integrity section.  Paul’s story is inspirational.  Raised by a single mom in a poor black neighborhood on Chicago’s South Side, Paul went on to study at Yale and Harvard, and then to a prestigious clerkship and law firm.

The story then takes a twist.  The star prosecutor becomes the prosecuted.  I will not give away the story by revealing for what crime, except to say that it is a ridiculous accusation and would be comedic if it had not been endured by a real person.  Paul never told his mom. Poignantly he writes that he would rather have her memory be of her son in trial, not on trial.

Paul thus opens by powerfully and frankly framing his positionality—something anthropologists are wonderful at doing and legal scholars should be more aware about. Arguments are more compelling when situated in context with credibility, vantage, and experience fronted.  Paul has credibility in abundance from his complex place as an outsider who made it inside and is now telling us about the system like it is and what we can do to transform it.

Criminal Justice, Indicted

The system is not pretty—and perversely makes us less safe by locking too many people up, Paul writes.  With the highest rate of incarceration in the world, we have reached a tipping point where more convictions and incarceration mean less safety.  Going to jail is starting to seem like a rite of passage for young men in some low-income communities.  When conviction and incarceration start looking normal, the criminal law loses its stigma—draining criminal law of its deterrent power.  Moreover, mass incarceration is also counterproductive because it disrupts families and social organizations, which are much more important in constraining crime than any ham-fisted police power or prison. Paul also riffs on how the drug war fuels over-incarceration and how the heavy use of “snitches” — (a word I hate because it is too often misused to silence and intimidate brave people who come forward out of concern for their communities) — stains the integrity of criminal justice and harms communities we aim to help.  Paul distinguishes between “snitches”—typically criminals who offer information for a bounty, usually cash or leniency—and people who altruistically step forward to be witnesses.

What of the beautiful dreamers, who hope to change the system from the inside?  Dream on, but do not be deluded, Paul tells us.  You may go in as he did, thinking he would be the Undercover Brother on the inside, but instead end up collaborating in injustice, Paul writes.  He recollects how the system changed him rather than him changing the system.  He played a symbolic and legitimizing function in a jurisdiction where the arraignment court line-up of defendants recalls the Ntozake Shange poem that begins “The suspect is always black and in his early twenties.” Butler, the elegantly suited, Ivy-educated, clean-shaven 6’3” black man reassured black jurors in every inflection that everything’s cool, go ahead and convict this scumbag defendant (who contrasts so jarringly with him).

What about the discretion to do justice?  Paul tells us discretion is mainly a myth at the line prosecutor’s level.  The head of the office may have vast power to set the prosecutorial policy, but the line-level prosecutor must implement.  In short, Paul tells us good people should not be prosecutors.

Though I love this book, I do not always agree with it.  This is one such point of disagreement.  Perhaps it is because I worked under a brave exemplar of a leader, a U.S. Attorney who truly believed in doing justice — even if that meant braving political fire to go after the powerful and not just the poor and easy targets.  Then again, she was one of the U.S. Attorneys controversially cut by the Bush Administration.  So to paraphrase Paul’s memorable turn of phrase, “the shit’s complex.”  But I still have hope that people with courage and integrity can do great things from the inside.

The Beautiful Struggle

My favorite works do not just critique—they offer a vision of transformation.  Paul offers a multidimensional vision and many concrete ideas.  You may not agree with some or even all of what he argues and proposes.  But the genius of the visionary is to open your mind to the universe of possibilities and an array of ideas, some of which may take wing even if others do not.

The nation’s leading expert on jury nullification, Paul tells ordinary citizens what they can do to check a system out of control, raging on the steroid of the War on Drugs.  He explains principled nullification when it comes to unjust laws.  Do not let the violent criminal off, Paul tells potential jurors, but do spare the casualties of the War on Drugs, swept up for low-level drug offenses.

He also offers numerous other ideas—including a seven-point plan—that I will not outline here because you should read the book.  I will just mention one other fascinating proposal.  Paul talks about how technology may help liberate us from our addiction to prisons.  For example, ankle bracelets are preferable to pushing nonviolent offenders into the brutal boiler of prison, where they are initiated into race-based gangs for survival.

What I love about this book is that it is deeply real and does not shy away from the gritty and the gray.  Paul does not ignore the deep conflicts that the criminal justice system must navigate and the need to punish the bullies who hurt others. He has locked up thugs who he thinks should not see the light of day.  He powerfully argues, however, that our system should not perversely do violence to communities by incarcerating vast portions of their people for non-violent crimes.  The book is at once radical and practical, from a visionary with real-world credibility.  We vitally need such practical radicals and visionaries with real-world credibility in the hard task of defining and better realizing criminal justice.

1. The legal scholar in me cannot resist listing a few of my favorites: See, e.g., Stephanos Bibas, Assembly-Line Criminal Justice (forthcoming 2011); Marc L. Miller & Ronald F. Wright, The Black Box, 94 Iowa L. Rev. 125 (2009); Roger Fairfax, Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. Davis L. Rev. 411-456 (2009); Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007); Mary De Ming Fan, Disciplining Criminal Justice: The Peril Amid the Promise of Numbers, 26 Yale L. & Pol’y Rev. 1 (2007); Daniel C. Richman & William J. Stuntz, Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 Colum. L. Rev. 583 (2005); Michael Edmund O’Neill, When Prosecutors Don’t: Trends in Federal Prosecutorial Declinations, 79 Notre Dame L. Rev. 221, 225 (2003); Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 Fordham L. Rev. 851 (1995); Richard S. Frase, The Decision To File Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 247 (1980); Kenneth Culp Davis, Discretionary Justice 169-172 (1969); Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 60 (1968).