Professor Butler offers his perspective on my interview with Attorney General William Barr.

Guest: Georgetown Law Professor Paul Butler

Kary: 

This is the Crime Story Podcast with Kary Antholis, where we have conversations about how and why narratives of crime and justice are told.  

Paul Butler: 

The Attorney General appears to me to endorse torture… I understand that when we see a bad guy get his just desserts, in an extra-legal way, it might fulfill some kind of base emotion, but we know the path that those actions lead down. 

Kary: 

In this special podcast program, we will be joined by Georgetown Law Professor Paul Butler for his perspective on Attorney General William Barr‘s remarks during my interview with him for our last podcast episode.

Paul Butler:

I’m an African-American man and I grew up in the city of Chicago, a city that paid millions and millions of dollars to African-American men who were literally tortured in an offsite. So there’s not a crooked line between Dirty Harry and Jon Burge, who was the Chicago police official who was responsible for that torture. It’s a pretty direct line. And I’m fairly certain that Attorney General Barr would not support what the Chicago police were doing. But again, I don’t think there’s a huge space between the kind of violence that he endorses and the kind of violence that the police department in Chicago used against African-American men.

Kary

Professor Butler and I met through my involvement in the alumni of Georgetown Law. Paul researches and teaches in the areas of criminal law, race relations law, and critical theory. 

He is the author of the widely lauded books “Let’s Get Free: A Hip-Hop Theory of Justice,” and “Chokehold: Policing Black Men.”

Professor Butler is one of the nation’s most frequently consulted scholars on issues of race and criminal justice. Prior to becoming a professor, Butler served as a federal prosecutor with the U.S. Department of Justice. 

Kary:

Paul has graciously agreed to join us and share his reactions to my interview with Attorney General William Barr. 

Kary:

Paul, thank you for being here with us today.

Paul Butler:                      

It’s great to be here, Kary.

Kary:                                     

Paul, as you reviewed the transcript of my interview with the Attorney General, what were some of the things that popped out at you immediately?

Paul Butler:                      

On the positive side, I was impressed with the Attorney General’s journey from his first term, where he was one of the architects of mass incarceration. In the ’90s, he wrote a memo saying that the problem with the criminal legal process is that there were not enough people locked up. And so he, along with others in his administration, and with Congress, most famously in their crime bill of 1994, created policies that resulted in the largest expansion of our prison population in the history of the world. That’s human suffering, that’s blood on the hands of the Attorney General. And while he doesn’t atone for those draconian policies in this interview, he does understand that the war on crime, as launched by him, which turned out to be a war on communities of color, the war was waged by locking up as many people as possible for as long as possible.

Paul Butler:                      

The war on crime, which resulted in the United States having 5% of the world’s population and 25% of the world’s prisoners. The Attorney General does not say that mass incarceration was a failure, but he does acknowledge its wretched cost, especially it’s cost on African-American families. So I thought that was progress. That was a sign that the Attorney General has learned from the wretched experiment in mass incarceration. 

Kary:             

I would appreciate it if you would talk about some of the aspects of my interview with the Attorney General that you find troubling.

Paul Butler:                      

The Attorney General appears to me to endorse torture. He talks about a scene in the movie Dirty Harry in which someone who has information that Dirty Harry wants is reluctant to provide the information, and so Dirty Harry shoots him in the leg, and then the person who’s tortured provides the information. The Attorney General questions whether that’s an unjust or morally repellent act. And while he doesn’t come out and say it, he seems to think that the answer to that question is “no.” Earlier, the Attorney General notes that there’s too much focus on procedure when we think about justice and not enough focus on the substantive outcome. I agree with that. The Attorney General is endorsing a view that’s made famous in The Academy by a late criminal law professor named William Stuntz.

Paul Butler:                      

And what Stuntz suggested is that the American criminal legal process is all about rights. So people have the right to be free from unreasonable searches and seizures. People have the right to effective assistance of counsel. People have the privilege against self incrimination. People who are accused in the United States have more rights than almost any other country in the world. But at the same time, people get locked up here for way longer than in almost any other country in the world. And that’s perfectly constitutional. So what Bill Stuntz wrote is that because of our overemphasis on procedural justice and our lack of emphasis on substantive justice, things are out of whack. So if you get charged with a drug crime, if you can persuade a judge that the police searched you without probable cause, then you can get the case thrown out of court even if the police actually found drugs on you.

Paul Butler:                      

On the other hand, if you possess, let’s say $100 worth of cocaine, you could go to jail for 10 years, and that’s perfectly constitutional. So, too much focus on procedure, not enough focus on substance. By and large, I think that that’s right. I think the rights that we have that guarantee accused people a fair process, I think those are perfectly legitimate. But I agree with the Attorney General that there should also be a focus on substantive outcomes. And when people receive punishment way in excess of their crime, then that should be a matter of constitutional concern in a way that it’s not now.

Paul Butler:                      

So I get the focus on substantive justice, and at the same time when the Attorney General, again, appears to endorse torture in order to get a just outcome, I have a problem with that. I have a problem with that as a law professor, someone who understands that the purpose of the law is to mediate some of our most base instincts. The purpose of the law is to rise above emotion and primitive desires to help forge a civilization. And I understand that when we see a bad guy get his just desserts in an extra-legal way, it might fulfill some kind of base emotion, but we know the path that those actions lead down. And it’s not a path that’s consistent with the Constitution, or with norms of fairness or due process.

Paul Butler:                      

And for the Attorney General to applaud that kind of conduct, I find troubling. So that’s the law professor point of view. I’m an African-American man and I grew up in the city of Chicago, a city that paid millions and millions of dollars to African-American men who were literally tortured in an offsite, sometimes called a black site, that the Chicago Police Department operated during the 1970s and ’80s. Sometimes I tell the story about when I was 12 years old, I was riding my bike to the library, which was literally across the tracks in the white neighborhood. And as I crossed those literal and proverbial tracks, a cop car pulled along side me. The white police officer rolls down his window and asked, “Is that your bike?”

Paul Butler:                      

And I said, “Yeah, is that your car?” And I sped off. When I got home, I told my mom what I’d done, and she spanked me. “Didn’t I know what happened to black boys who talked to the police like that?” And it turns out she was absolutely right. She said I could’ve been killed. I could’ve been hurt. And that’s exactly what was going on during that time. The Chicago police were torturing black men to get confessions out of them. They were attaching electrodes to their genitals. They were pouring soda up their noses, and all of this is documented and again, the city’s paid millions of dollars.

Paul Butler:                      

So there’s not a crooked line between Dirty Harry and Jon Burge, who was the Chicago police official who was responsible for that torture. It’s a pretty direct line. And I’m fairly certain that Attorney General Barr would not support what the Chicago police were doing. But again, I don’t think there’s a huge space between the kind of violence that he endorses and the kind of violence that the police department in Chicago used against African-American men.

[Commercial break for crimestory.com]

Kary:                                     

During the course of the interview I asked the Attorney General about mandatory minimums for drug and gun charges, and he spoke about entrusting prosecutors with charging flexibility rather than entrusting judges with sentencing flexibility. Could you speak a bit about that and your thoughts about that answer?

Paul Butler:                      

The Attorney General seems to think that prosecutors are better at creating equal justice under the law than judges. And the reason that’s incorrect is because prosecutors have more power than judges to determine how a case comes out. And they have more power because prosecutors make the charging decision. So, imagine that someone possesses $500 worth of cocaine. A prosecutor can charge that person for the entire amount of $500 and then seek the most severe penalty. Or the prosecutor can make a deal and say, “Okay, well I’m only going to charge you with possessing $100 worth of cocaine, and that will reduce your sentence.” In some instances, it may remove you out of a mandatory minimum sentence and provide you with a lower sentence that the judge can impose. On the other hand, if it’s let’s say $500, then the judge must impose a minimum sentence. And so it’s the prosecutor who, when she brings the case to court, necessarily limits the range of time that a judge can impose. Prosecutors have all of the power when it comes to plea bargains.

Paul Butler:                      

There was a Supreme Court case in which a person was charged with a third strike offense for basically writing a bad check. The check was less than $200, but because it was a three strikes and you’re out jurisdiction, and this was his third strike, the man was looking at life imprisonment. The prosecutor said, “I’ll make you a deal. If you agree to a sentence of about five years and plead guilty, then you won’t have to be locked up for life. But you have to plead guilty in order to get that deal. If, on the other hand, you go to trial and you lose, I’m going to ask the judge to lock you up for life.” The person decided that he would exercise his constitutional right to go to trial. He did. He lost. The prosecutor threw the book at him, and got the judge to sentence him to life.

Paul Butler:                      

The man went to the Supreme Court saying, “This can’t be constitutional. The prosecutor, in his plea deal, acknowledged that this was a crime that the fitting punishment was five years. So how, just because I exercised my constitutional right to trial, can I then be sentenced to life imprisonment for writing a bad check for $200?” The Supreme Court said it was perfectly constitutional, and the consequences of that case are that that’s essentially what prosecutors do in every single case. They say, “Unless you plead guilty, I’m going to throw the book at you.” You can exercise your constitutional right to go to trial, but you will lose, and you will pay for exercising that right. And that’s why now 95% of people who are charged with a crime and prosecuted with the crime end up in a plea bargain.

Paul Butler:                      

There was a Supreme Court case a few years ago about the trial system, and Justice Kennedy, in his majority opinion said, “Wait a minute. In the United States we don’t have a trial system anymore. We have a plea bargain system.” And because of those 95% of people who are  prosecuted, who end up pleading guilty, basically doing what the prosecutor asked them to do, prosecutors have way more power than judges. If I wanted to exercise as much power as I could in the criminal legal process, and I had a choice between being a federal judge and the United States Attorney, I would much rather be the United States Attorney because she has way more power than a federal judge to determine how a criminal case comes out. And so when we look at, again, the wretches of mass incarceration, prosecutors are much more to blame for that than judges.

Kary:                                     

And you had firsthand experience with this. Correct? You worked in the US Attorney’s Office as a prosecutor.

Paul Butler:                      

That’s right. So, I was a prosecutor in the Public Integrity section at Main Justice. And when I got there, I was coming from a law firm where I hadn’t had much trial experience. And so I was sent to the local prosecutor in the District of Columbia to gain trial experience. And so, for a year, I prosecuted criminal cases in the Superior Court in the District of Columbia.

Kary:                                     

You’ve spoken often about the dynamics and the pressures that you experienced there, that led you ultimately to leave the prosecutor’s office. Correct?

Paul Butler:                      

Yes. I represented the government in criminal court in DC, and I used that power to put black men in prison, and black women, and Latino people, and poor people. If you go to criminal court in DC then, that was in the 1990s, or now, in 2019, you would think that white people don’t commit crimes. They are utterly absent from the criminal Court, even though they’re about 40% of the city’s population. You would think that white people don’t use drugs. They don’t get into fights. They don’t steal. But black people, man, those are some bad dudes. That’s what the visuals of the Superior Court in DC, that’s the impression that those visuals create.

Paul Butler:                      

And I was hired to be a black prosecutor because the jurors in the District of Columbia, when they see that every single person on trial is black or Latino, they know that something’s going on. And the reason I was hired to be a black prosecutor was for this beautiful chocolate skin to send a message “It’s okay. Everything’s cool. Don’t worry.”

Kary:                                      

The Attorney General declined to answer my question about his investigation… or his commitment during his confirmation hearings to look into the issue of implicit bias in law enforcement. What do you make of his unwillingness to go there?

Paul Butler:                      

He said during his confirmation hearings that he wasn’t familiar with the notion of implicit bias. That should almost be disqualifying in a candidate for Attorney General, since implicit bias has been the subject of much scholarship and policy work for roughly the last 10 years. When we ask why the police are violent against communities of color in ways that they’re not against white folks, implicit bias is one compelling explanation in part because, based on my own experience with police officers, I don’t think they’re more racist than anybody else. They’re not more racist than law professors or doctors or lawyers or anyone else. But when we ask why people of color are more likely to be beat up or killed by cops than white people, including often by African-American or Latino officers, we know that race is doing some work. 

Paul Butler:

And the best, evidence-based explanations for how race informs the work of police officers has to do with implicit bias. What sociologists have taught us about the unconscious ways that we think about race…its very important to understand that if you want to learn how to make police officers serve their communities better and protect their communities better. And for the Attorney General to profess ignorance about this very important advance in equal justice under the law was quite troubling.

Kary:                                     

During the course of the interview I ask him about the focus on mandatory minimums for gun and drug charges back in the ’80s and ’90s, particularly during his term as Attorney General the first go around. He responded citing the fact that leadership in the black community, black church leadership… It also seemed to be a reference to some of the work that James Foreman has done in his book Locking Up Our Own. But what, in your view, does the Attorney General miss in suggesting that as a root reason for the mandatory minimum movement?

Paul Butler:                      

The Attorney General was being extremely selective with what he took from the wish list of the African-American community. So what folks wanted was to feel safe in their own communities. One way that people could be safe, folks thought back then, was to lock up some of the most violent offenders. Other ways that communities could be safe were to have better schools, to have alternatives for kids and teenagers coming home from school to give them something to do other than to hang out on the streets.

Paul Butler:                      

So people were looking for all kinds of support from the government. And the only thing the government gave back was the cages. We didn’t get the better schools. We didn’t get the job training. We didn’t get the access to the American dream that the GI bill and home mortgages gave white folks during the 1940s and ’50s. We didn’t get any of that. All we got was the bars and the cages and the police. And so again, the Attorney General’s memory is quite selective when he remembers what black folks were asking for. They were asking for way more than police and prosecutors.

[Commercial break for crimestory.com] 

Kary:

During the course of the interview I asked the Attorney General about the so-called Ferguson effect, and he gave the following answer: 

Kary: (reading Attorney General Barr’s answer)

I think the idea is that if police feel that they are going to be unfairly treated or unjustly disciplined for something they felt was a righteous act of self defense, and there’d be what they feel is unfair Monday morning quarterbacking, they will not take those risks. They will not confront crime where they think it can put them in danger, and the biggest losers of that can be people in high crime neighborhoods.

Kary:

What is your response to that? What are your thoughts on that answer?

Paul Butler:                      

When Jeff Sessions stepped down as attorney general, Bill Barr joined some other former Attorney Generals in writing a letter celebrating the tenure of Sessions and listing his “accomplishments.” One of the points the letter makes is that, and I’m reading from the letter now, from Barr, “Sessions, took office after the previous administration’s policies had undermined police morale with the spreading “Ferguson effect” causing officers to shy away from proactive policing out of fear of prosecution.”

Paul Butler:                      

So what Barr, along with a couple of other Republican Attorney Generals, were doing was criticizing the Obama administration when it brought civil rights cases against police departments that had out-of-control violence and discrimination against black and Latino people. And Sessions was basically affirming this false belief that there’s something about the movement for black lives or civil rights cases brought by the government that discourages police from doing their jobs.

Paul Butler:                      

Now of course you’re only going to be the subject of a civil rights case if there are serious allegations that you are selectively breaking the law, selective against African-Americans or Latino people. And so police officers who treat everyone fairly and equally, they don’t have to worry about being prosecuted for a crime. There’s no proof that civil rights cases or activism against police brutality, there’s no proof at all that that discourages honest law abiding officers from doing their job.

Paul Butler:                      

And so for the Attorney General to endorse the Ferguson effect, it’s really concerning, and it’s not just concerning because he thinks this. It’s concerning because he’s the highest law enforcement officer in the United States. We know that during the Trump administration, the Justice Department is brought 60% fewer civil rights cases and 50% fewer than under the George W. Bush administration. So in some ways, this isn’t even a Republican or Democrat thing. This is the Trump Justice Department, a Sessions-Barr Justice Department versus everybody else, versus other Democrats and Republicans, versus basic notions of fairness and equal justice under the law.

Kary:

Is there anything else that you’d like to share with our listeners during the course of this conversation?

Paul Butler:                      

The movement to reform the criminal legal process has focused on being smart on crime rather than being tough on crime. We’re looking at evidence-based approaches and not letting the emotions, and scare tactics, and racism that has guided criminal policy in the past, we’re trying to put that behind us. And I was concerned when in the interview Attorney General Barr credited mass incarceration with reducing crime. Now, we understand why he would want to take some of the credit for mass incarceration, since he wrote a memo the first time that he was Attorney General called “The Case for More Incarceration,” and we know that that memo, along with the crime bill of 1994 and draconian responses in the states, we know that that created the greatest expansion of our prison population in the history of the world. But we also know that locking up all those people didn’t have much of an effect on public safety.

Paul Butler:                      

So we know that, in part, because the United States is an outlier with regard to the number of people who we lock up. We famously have 5% of the world’s population and 25% of the world’s prisoners. The Attorney General says, “Well, we know that mass incarceration worked because crime went down.” Here’s the thing, crime went down all over the world, and especially all over the western world. And as we know, no other country uses incarceration nearly at the rate that the United States does. And so when we look at evidence-based approaches to public safety, we have to discount the role that mass incarceration played. And in fact, we know that when people are locked up at the rate that folks in the United States are, that’s actually criminogenic.

Paul Butler:                      

And what that means is that when you lock up too many people, it actually turns out to make communities less safe. When we lock up the almost two and a half million people who are behind bars in the United States right now, the effect is that we’re locking up a lot of people for nonviolent criminal offenses. And in fact, where the Attorney General has the most power to impact the prison population is in the federal prisons. And in federal prisons, about 50% of people are locked up for nonviolent drug offenses. And in the interview, the Attorney General says, “Well, you know, they may be locked up for nonviolent drug offenses, but often those people are all also guilty of some really horrible violent offenses as well.” Well, if that’s true, then those are the crimes for which they should be incarcerated and punished in that point of view.

Paul Butler:                      

But when the Attorney General says, “Well yeah, it’s 50% who are there for nonviolent drug offenses, but that doesn’t mean they’re actually nonviolent.” Again, that’s hooey. That’s unfair. And again, it’s consistent with views he endorses throughout the interview about whatever works as a means to an end. Whatever gets you the outcome that he wants is fine, but it’s not consistent with the law.

Kary:                                     

Paul Butler. Thank you so much for being with us.

Paul Butler:                      

Great to be here, and good luck with Crime Story.

Kary:

This has been the Crime Story Podcast with Kary Antholis. The podcast was produced and edited by Jason Pugatch. For more Crime and Justice storytelling, news and narrative analysis, head over to crimestory.com. Thank you for joining us, and we hope you will come back again for the next Crime Story Podcast.