WASHINGTON -- If 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.
BI: Of the scholars who offer other explanations as to why we are not there, whose work most impresses you as offering a plausible explanation?
PB: Derrick Bell.
BI: And why is that?
PB: Derrick Bell, Kimberly Crenshaw and Richard Delgado are the architects of "Critical Race Theory." And I think Derrick Bell's work on the permanence of racism is very persuasive. When I look at some of his ideas -- that racism is permanent, that progress is cyclical and that America sees itself as a White country -- I find these to be very compelling explanations for why more progress hasn't been achieved. Sometimes I think he's a little too pessimistic about what the law can do, and that's where I think the work of Kimberly Crenshaw is very helpful. You can't ignore that people of color are materially better off in important ways now than they were in the '50s, '60s and '70s. She explains how the law can be used to make things incrementally better even if they can't permanently eradicate racism and discrimination.
BI: Is that the vicious cycle that we find ourselves in, subject to the whims of who happens to be on the judiciary at any given time?
PB: I think that we have only found the judiciary being hospitable to our claims relatively recently in our history. Now the court seems to be backtracking on its commitment to equality for African Americans and other people of color. I think that changing the law in order to improve your lot is part of the American way. One of the interesting reactions to my work in jury nullification is that when I advocate selective nullification by African Americans is that it's somehow wrong because it's un-American. Why is it un-American? Because in America, if you don't like the law, you aren't supposed to subvert it; what you try to do is change it. How do you change it? Well, one of the things you do is petition the legislature. …