By Gina Lazaro
Paul Butler is the Albert Brick Professor in Law at Georgetown University Law Center and a legal analyst on MSNBC.
Professor Butler is one of the nation’s most frequently consulted scholars on issues of race and criminal justice. His work has been profiled on 60 Minutes, Nightline, and The ABC, CBS and NBC Evening News. He lectures regularly for the American Bar Association and the NAACP, and at colleges, law schools, and community organizations throughout the United States. He serves on the District of Columbia Code Revision Commission as an appointee of the D.C. City Council.
Professor Butler’s scholarship has been published in many leading scholarly journals, including the Georgetown Law Journal, Yale Law Journal, Harvard Law Review, Stanford Law Review, and the UCLA Law Review. His book “Chokehold: Policing Black Men” was published in July 2017. The Washington Post named it one of the 50 best non-fiction books of 2017. Chokehold was also named one of the best books of the year by Kirkus Reviews and the Atlanta Journal Constitution. The New York Times described Chokehold as the best book on criminal justice reform since The New Jim Crow. It was a finalist for the 2018 NAACP Image Award for best non-fiction.
Professor Butler served as a federal prosecutor with the U.S. Department of Justice, where his specialty was public corruption. His prosecutions included a United States Senator, three FBI agents, and several other law enforcement officials. Professor Butler is a graduate of Yale University and Harvard Law School.
Gina Lazaro: We are now at the one-year anniversary of George Floyd’s murder and, while Derek Chauvin was convicted, we have seen more deaths of people of color at the hands of police, including 20-year-old Duante Wright, 13-year-old Adam Toledo and 16-year-old Ma’Khia Bryant. What are your thoughts about where we are as a country regarding policing and racial equality?
Paul Butler: Police in the United States kill approximately 1,000 people every year. That number has been relatively consistent since reliable data has been gathered. The question is why police in the United States kill so much more than police in other countries, and what it will take to stop the police from killing so many people. Both of those are open questions. We do know that as a result of the movement for Black lives and the protests that were inspired by the death of George Floyd that there is a new focus on police reform. Another question is whether reform is sufficient or whether more ambition is required including transformative ideas like defunding the police.
Lazaro: Could you please explain defunding the police and how it is different than police reform? Also the abolition of prisons? How would these work in practice?
Butler: The defund the police movement and the abolition of prison movement are evidence based, data driven projects about improving community wellness and safety. What defund the police recognizes is that the police do not deliver the kind of safety and wellness that we need, and that the police do not learn about most criminal conduct because most people who are victims choose not to involve the police.
When police do learn about criminal conduct, they usually do not solve the crime. The clearance rate, the rate at which police make arrests when they know of a crime, is 60% for homicide, which means that 40% of people literally get away with murder and manslaughter. Homicide has the highest clearance rate of any crime. You are in Boston. The clearance rate for shootings in Boston is under 20%, which is what it is in Chicago as well. We know their clearance rates because those two departments are transparent on releasing the numbers. Many other departments do not release their clearance rates, because then it would be clear to the world that the police do not do what people expect they do. Police do not solve most crimes. In a place like Chicago or Boston, if you shoot someone and that person does not die, the odds are that you will get away with that crime, you will never be impacted by the criminal legal system for shooting someone.
That obviously creates insecurity and unwellness in the city and so the defund the police movement asks: are there better ways that we can use our tax dollars to support wellness and safety? The answer is yes. Another data point that drives the defund the police movement is that the vast majority, upwards of 90%, of the calls that police get are not about someone who has been the victim of a serious violent crime. Most calls are about people who are having conflicts with their neighbors, their family members, or partners, or about issues arising from mental health crisis, homelessness, or addiction. For the majority of the calls to police, the vast majority, we simply do not need people with guns to respond and often when people with guns respond that makes things worse not better. You can think of two versions of defunding the police, one liberal version and one more radical version.
The liberal version looks at policing in the way that I just described as a failed project in public safety, and what it suggests is that much of the money that now goes to people with guns should be reallocated to evidence based practices that work better for supporting community wellness including violence interruption programs, community health programs, more resources for mental health providers and more resources for services for people who suffer from addiction and homelessness. In New York City, there are city blocks that an organization called the Justice Mapping Project has described as million-dollar blocks because that is how much money the government spends on that one block to keep people from that block in prison. One way of thinking about the liberal version of defunding the police is to ask what if, instead of spending a million dollars just to lock up people from that one block, we spent that money on services that would actually help. Again, more resources for education, health care, and community wellness.
Then the radical version of defunding the police is that defund means defund. The way that it describes current policing is as a successful project in racial subordination and anti-blackness. It looks at the history of policing in the United States as evolving from slave patrols and their present practices which every official report and investigation tells us that the police selectively prosecute and demean Black and brown people. This radical component of defund the police asks why fund an organization that is consistently anti-Black.
Lazaro: Could you please explain this passage from Chokehold: “White supremacy means that white people are complicit in and derive benefits from the conditions that hold African Americans back in a system of racial inequality as Black people lose white people win.”
Butler: When Black people are excluded from jobs or housing or loans to obtain mortgages, those are resources that then go to nonblack people, and especially go to white people. If Black people were to be treated fairly and equally, some resources that now go to white people would be in a fair system allocated to Black people. So, I think a lot of white people would look at that as a loss. Sometimes the analysis of low-income white people’s voting behavior is simplistic and reductive, as you hear it is irrational for poor and working-class white people to support politicians like Donald Trump as it is against their economic interests. In Chokehold, I talk about this in the context of why many low-income white people support conservative Republican politicians who, if you look at their economic policies and their social programs, do not have poor and working-class people at the forefront. What I think the motivation of a low-income white person supporting a conservative racist politician like Donald Trump is that he increases the property value of their whiteness and that is in many cases their most valuable commodity.
Lazaro: In your book, you say that Black men are the stars of pop culture, but at the same time many people are afraid of Black men and see them as dangerous. Why this disconnect?
Butler: I noted this interesting phenomenon that Black men have an outsized impact on culture especially American culture, but really culture all over the world. If you look at the people who have the most followers on social media platforms, African American men are disproportionately represented. Most of those men are entertainers and athletes. Barack Obama is another Black man who frequently appears on those lists, and he obviously is neither of those. I thought that phenomenon was interesting compared to the fact that Black men are also disproportionately represented in the criminal legal process. I do not know what to make of those two different data points. I do not know if there is correspondence. Some people suggest that “the thug is sexy” and that there is a certain charisma associated with “bad guys”. Perhaps that is an explanation, but that seems insufficient to me, but I do think it is something really interesting.
Lazaro: What is your view of civilian review boards that monitor and report on the police departments? Do these citizen oversight review boards work to help reduce racially biased practices?
Butler: One of the problems with policing in the United States is it is extremely localized. There are 18,000 different police departments in this country, and 18,000 different ways of policing. What some current legislation such as the George Floyd Justice in Policing Act, pending before the Senate now, is trying to do is impose national standards on policing. Under our system of federalism, it is difficult to have the Federal Government mandate even basic requirements for police competency, qualifications, and training. However, police departments receive a large amount of money from the Federal Government, and so Congress, at least the Democrats in Congress, is trying to make the receipt of federal dollars contingent on local police departments satisfying relatively straightforward requirements.
Police reform is about making the police more transparent and more accountable, and civilian review boards are an effort to try to achieve that in some departments and jurisdictions. Reform needs to be smart, data driven, evidence based, and not emotional, sentimental nor racist which is what has driven most of our criminal law policy in the past. It is important to look at different reforms, including the different kinds of authorities that civilian review boards have and to ask about metrics -- what is the measure of success and have these boards achieved success by these metrics. If we are concerned about the fact that every year, for the last 15 years, the police have killed about 1,000 people and the vast majority of those killings have been ruled justified that might suggest that the reforms that exist now do not seem to be working. The hope that people have in this moment for reform needs to be responded to empirically: what is the measure of success, what has worked, what has not worked, and if nothing seems to have worked, why not. What I expect is that rigorous analysis will lead to, at minimum, the liberal version of defunding the police, which again recognizes policing as a failed project in public safety and looks for ways to achieve community wellness outside of relying on people with guns.
Lazaro: Many of us have been conditioned that there are people who absolutely should be punished because they committed a crime so heinous that they represent an ongoing threat to society. What form would punishment take if imprisonment were no longer an option?
Butler: In the literature there is a lot of debate about what to do about the hard cases. Abolitionists have a concept called “the dangerous few,” which means that even in an abolitionist regime there is a small number of people that would still need to be closely supervised by the state, because they are likely to cause serious physical harm to others if not supervised.
Another response might be this urge to hurt people because they have hurt others, while human, may be a luxury that we cannot afford in a country with our white supremacist history. Many people who do not have abstract moral objectives to the death penalty are against it for racial justice reasons. They say that the United States can never have a system that selects the worst people, the worst criminals to punish by killing them, in a way that is not about race and class. I think that is right, and it applies not just to the death penalty but to the legal system at large. The criminal legal system is about identifying the people who are the most dangerous and the most immoral, and then apportioning punishment. There is no way that we could do that in the United States that is not all about race and class.
Lazaro: What can Advanced Leadership Initiative fellows -- past and present -- as well as people who care about social impact, do to help to improve racial justice and the criminal system in the United States?
Butler: Well, you could hire people who have been involved in the criminal legal system and not ask questions about criminal records as you do your hiring, unless it is vitally important to the position which it almost never is. The movement for Black lives says that policing and prison are just symptoms. The real problems are white supremacy and patriarchy. The movement says that if you just focus on the police or mass incarceration then you are treating the symptoms and not the disease, and what that means is that the disease could mutate. We could fix policing, but then white supremacy and patriarchy would just evolve in the way that we have seen before, an evolution from slavery to the old Jim Crow to the new Jim Crow. There is a real opportunity for people in your program and others who may not be focused or especially interested in the criminal legal system, but have access to resources and the authority to get those resources allocated in ways that contribute to racial justice such as hiring more Black and brown people, and to the extent that your organizations hire other organizations or individuals to help you do your work allowing some of those contracts to go to Black businesses.
The data about disparities in the criminal legal process is no worse than the data about wealth disparity in the United States. The average African American child grows up in a home that is led by an African American woman who does not live with her partner, and the average net worth of an African American woman who does not live with her partner is $100. So, to the extent that people make employment decisions about how much money people make and who gets hired, bringing Black women to the center of those important decisions would A) make your organization run better because it is hard to imagine a group that has more untapped ability than women of color, and B) it would advance racial and gender justice.
Lazaro: Thank you very much for your time, Professor Butler. We appreciate you sharing your insights with our readers.
Butler: My pleasure.
About the Author:
Gina Lazaro is a 2021 Harvard Advanced Leadership Initiative Fellow. She has a background in global consumer products marketing with her last role as Chief Marketing Officer at FGX International, a subsidiary of Essilor. Gina serves on the advisory council of HighSight, a non-profit focused on educational opportunities for low-income African American and Latino youth, as well as on the board of The Canales Project, a non-profit arts and advocacy organization.
This interview has been edited for length and clarity.