A Former Prosecutor's 'Radical Thoughts' on the System Set Up to Control Black Men (ep. 62)

August 29, 2019
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This week, we’re replaying an interview from earlier this year with Paul Butler, a scholar, former prosecutor and the author of "Chokehold: Policing Black Men." When we first spoke with Paul, his book had been banned in Arizona prisons. Arizona has since lifted its ban, and incarcerated people in Arizona can now read "Chokehold" and benefit from its insightful analysis of our mass incarceration crisis. (Disclosure: At Liberty host Emerson Sykes worked on the letter that forced Arizona to lift the ban.)

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Arizona Officials Say It’s Unsafe for Prisoners to Read About Race and Criminal Justice

EMERSON SYKES
[00:00:05] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU and your host.

This week, we’re replaying an interview from earlier this year with Paul Butler, a scholar, former prosecutor and the author of Chokehold: Policing Black Men. When we first spoke with Paul, his book had been banned in Arizona prisons. After we recorded the interview, thanks to the intervention of the ACLU, Arizona lifted its ban, and incarcerated people in Arizona can now read Chokehold and benefit from its insightful analysis of our mass incarceration problem. Full disclosure, I worked on a letter that forced Arizona to lift the ban.

Hope you enjoy the interview!

Today's guest is Professor Paul Butler, the author of “Chokehold: Policing Black Men,” which he describes as “a renegade former prosecutor’s radical thoughts on how to disrupt the system.”

Professor Butler, who teaches at Georgetown Law, is also the author of Let's Get Free: A Hip Hop Theory of Justice. Through his books, his scholarship, and his activism, Professor Butler is committed to addressing the deep problems in our criminal justice system in ways that are accessible and compelling to the people who bear the brunt of the system's oppression. He's both a pragmatist and a revolutionary, and we're lucky to have him join us today. We'll discuss his career as a prosecutor, scholar, and public thinker, as well as how to break free of the systemic chokehold that is American policing.

Professor Butler, thanks very much for taking the time to speak with us. Welcome to the podcast.

PAUL BUTLER
Hey Emerson. It's great to be here.

EMERSON
So the chokehold became famous, or infamous I should say, with Eric Gardner and the “I Can't Breathe” T-shirts worn by LeBron James and many others. Your book talks about literal police chokeholds, which the New York Times recently reported are still being used despite the fact that they're illegal, but you also talk about the metaphorical chokehold. Can you give us a brief description of what you're trying to address in the book? What do you mean when you talk about a chokehold?

PAUL
[00:02:08] I mean a system that is set up to get African American men in its grip. The criminal legal process today is all about African American men. Now, that doesn't mean that we are the only subjects of the vast power of police and prosecutors — but when we ask, how did things get this bad? Why does the United States lock up more people than any country in the history of the world? You famously have 5 percent of the world's population, 25 percent of the world's prisoners.

When we ask, why are prisons such violent brutal places? When I was a prosecutor and I had to go to a jail to interview a witness, the first thing I would do when I left was to go home and take a shower. Prisons are horrible places that you wouldn't want to send anybody you cared about to. It's not places people go to become better people.

When we ask why our civil liberties are being taken away day by day, when we ask why the police are so violent in communities of color, again the answer is these are processes that are designed to enroll African-American men in the criminal legal process. Now, you can't keep the genie in a bottle. Once the police and prosecutors have these powers, they use it against everybody else, as well. But again, when we ask, how did things get this bad, the answer is all about controlling African American men.

EMERSON
[00:03:53] Well, I definitely want to come back to your experience as a prosecutor, but just in terms of the framing and why you chose to focus on Black men, we all have seen the numbers about the disproportionate impact the criminal justice system has on Black men in particular. But I was struck by a quote that you included in your book from one of your colleagues where they said, “All the women are white and all the Blacks are men.” And it sort of gets at the issue of intersectionality. And with, is there any risk to overly focusing on Black men? As you said, the criminal justice system also ensnares and oppresses a whole bunch of other types of folks as well.

PAUL
I wanted to take an intersectional look at African American men. One of the gifts that the incredible scholar and activist Kimberlé Crenshaw has given the world is this idea of intersectionality as a way of understanding the law and as a way of understanding our everyday lived experiences. The idea of intersectionality is that nobody is just one thing. No one is just trans or just an immigrant or just a Asian-American — that we have multiple identities and all of those impact how we enter the world and how the world receives us.

And so, what I wanted to think about was not just the ways that race informs the experiences of Black men, but also gender. And so in taking a specific look at African American men, there is a risk that some people will perceive the problems of Black men as worse than, let's say, the problems of African American women, and I don't think that that's at all true. Certainly African American women experience discrimination and bias from the police. In fact, after police brutality — people being beat up or shot or hands on by cops — the number one complaint against police officers is sexual harassment, and the number one targets of that harassment by cops is African American women.

EMERSON:
[00:06:12] One of the striking things about your work is the balance of systemic analysis and practical advice. So for example you call for prison abolition and revolution in the broadest sense, but also advise that brothers should be polite to officers or don't consent to a search and don't say a word if you're arrested.

How do you draw a line between these survival and accommodation skills, while also calling for revolution?

PAUL
You know, it's funny because Chokehold started out as what my publisher called a “quickie” book. And so the idea was that I was going to write, in a short time, a book that was a practical guide for African American men who catch a case, or who have encounters with the police, about how to have better outcomes. And that analysis was going to be informed by a bunch of experiences that I had, including being a prosecutor and locking up a lot of Black men, including being an African American man who got locked up myself for a crime that I didn't commit and took it to a jury trial and beat my case.

While I was working on that “quickie” book, Trayvon Martin got killed. And then, Michael Brown in Ferguson, Eric Garner in Staten Island; Sandra Bland died in a jail cell in Texas. And suddenly, a book about how Black men should act when they have an encounter with the police or prosecutor — it didn't seem to meet the times. It didn't seem to rise to the occasion.

[00:07:53] Trayvon Martin was on his way to his dad's house when he was gunned down by George Zimmerman. He didn't need a male role model. Mike Brown in Ferguson was supposed to start college, the week after he was shot by that police officer. Sandra Bland was a college graduate on her way to a new job in Texas when she got pulled over for driving while Black.

And so I wanted to make an intervention that was more profound than just a guide to street law for African American men. So that's still a part of the book, but it's not the main part now. The main part is what I hope is a really deep analysis of exactly what's going on with our criminal legal process. By the way, “criminal legal process” is the term that lots of us are using now rather than criminal justice system, because there's nothing just about our system.

EMERSON
So true. And full disclosure that we've actually been communicating because the book Chokehold was actually recently banned in Arizona prisons in violation of inmates’ First Amendment rights. And I'm curious, why do you think that the book was banned?

PAUL
You know, one of the provocative ideas in “Chokehold” is abolition. If we think about the--

EMERSON
You’re talking about prison abolition.

PAUL
Yeah. So if we think about the struggles for racial justice for African Americans, they've always been about abolition. First, the abolition of slavery, and then the abolition of the old Jim Crow. And so in Chokehold, I recommend the abolition of the new Jim Crow. So why would that make the book dangerous to the Arizona state prison system? Which is one of the phrases that I believe they used when they sent the letter saying they weren't going to allow people who were locked up there to read Chokehold.

[00:09:53] I don't know. Sometimes people, when they analyze the system, they think about a prison industrial complex the way that back in the day, we used to talk about a military industrial complex. And so they're definitely a whole lot of people who are making a whole lot of money off of the people who are in custody in the United States right now. So maybe the concern is that if prison abolition takes off, that will eliminate jobs. Obviously, there won't be prisons.

I have a lot of friends who work in the criminal legal process — people who are prosecutors, who are police officers, and some correctional officers — and these are working class people. They take those jobs because they're often good union jobs, you can retire early.

And so, I'm not mad at people who work in the system. And in fact, in Chokehold, there's a wonderful story about a labor organizer who worked for a union that advocates for abolition. The concern was: That union also represents some correctional officers, and the organizer wanted to get the officers to buy in. And so the first thing he did was say, “Well, how do you feel about your jobs?”

Again, correctional officers they don't like their workplaces. They're smelly, they're violent, they're loud — they're not crazy about their jobs most of the time. And they certainly know that the people who are locked up aren't getting any kind of rehabilitation from being there. But it's a job. And in terms of the wages and the benefits, it's a good job. So long story short, these guys, mainly men in this state, were like: “If we could get this salary, if we can get our early retirement and do something else, we're all in.”

[00:11:56] Another reason I think that Arizona may have banned my book, is it does contain ideas that would transform not only the criminal legal process, but race relations, social justice. They're not all my ideas: I use the research, the stories of people who've been in the system, and experts who have written about this system to come up with some transformative ideas. But to the extent that anybody thinks that my book is dangerous to the status quo— I'm kind of proud of that.

EMERSON
It's almost a badge of honor. And just to be clear, I mean, to quote from the book you say: “I want to suggest that violence against police officers or any other person, is unjustified, on moral grounds and because it would hurt the movement.” So it's certainly a radical take, but it is also a take that disavows violence as a useful means of pushing back against the system.

PAUL
Absolutely. So that's in a section of the book where I'm looking at ways that the law and society have transformed to make things better for African Americans. I'm looking at how resistance worked in the African American community. So, I think about civil rights. Emerson, I wouldn't be talking to you but for civil rights. Civil rights are what allow my mom and dad to go to integrated schools after Brown v. Board of Education. Civil rights are what accomplished affirmative action, which allowed me to go to fancy schools like Yale for college, Harvard for law school — doesn't mean I wasn't qualified. But the reality is before affirmative action, African American people simply weren't present in those elite institutions.

[00:13:51] At the same time, Black people encounter discrimination in every single market we enter, whether it's trying to get a cab on the street or a mortgage for a home, and so civil rights, it turns out, didn't do everything that we hoped. And I look at other ways to transform the system and the idea of self-defense, of responding to violence with violence, is also a consistent theme an African American resistance.

We know that slavery — the abolition of it — was accomplished by violence. And not just any violence, but the most bloody, destructive war in American history. Jay-Z said a few years ago, “Obama, change gon’ come or I’m gonna buy the hood [guns] on me.” And when I interrogated that idea in Chokehold, I said as a moral person, I don't think that violence is right. I don't think that it's an appropriate response. And I say that based on my faith, based on my ethics. If violence means hurting another human being, it's absolutely not the way to go. I also don't think it would work, if, as a political strategy, African Americans tried to use violence as a way of achieving some kind of justice, I think that we will be summarily crushed.

And so when I think about the ways that Chokehold might transform prisons, it's certainly not in any way that would involve violence or hurting any other human being. That's my whole problem with the system now, especially if we think about prisons. What it does is it's an official form of massive human suffering. It's a drip by drip, day by day form of violence. And because I think any form of violence is immoral, I'm opposed to violence against police officers, violence against correctional officers, in the same ways that I'm opposed to the violence of prison and the violence of American policing.

EMERSON
[00:16:16] It's a very, very powerful argument, and I do want to come back to some of your ideas about how we move forward and how we achieve the goals that you're trying to reach. But I want to maybe take a step back and talk about your own path to where you are now. You talked about the corrections officers and the police officers you know in your own experience as a prosecutor. Why — when you left those fancy schools that you mentioned — why did you decide to become a prosecutor?

PAUL
You know, it's funny because I was the last person my friends from law school would expect to become a prosecutor. They could see me going to work for the ACLU, or the Legal Defense Fund, or even being a defense attorney, but a prosecutor? Paul Butler? No way. I'd heard that prosecutors have all this power and all this discretion and really wanting to make an intervention in the criminal legal process that would be important, that would be meaningful, I thought well, what if I go in as an undercover brother? Well, what if I see if I can use all that power and all that discretion to change the system from within? So that's what made me go into the office.

[00:17:44] And what I found was that, rather than change the system, the system changed me. So it's not like on the first day on the job of the prosecutor's office, I started calling the defendants “cretins” and “douchebags,” which is the way that a lot of the prosecutors refer to them. I never got that bad. But like a lot of lawyers, I'm competitive, I'm ambitious — the way that you move up in a prosecutor's office is to lock up as many people as you can for as long as you can. It turned out that I was kind of good at that. I had the best conviction rate in in my section. I was doing misdemeanor crimes, locking up people for drugs, for gun possession, for simple assault, getting in into fights, stuff like that. And in a bizarre way, I enjoyed it. Now when I thought, well, why is that? I don't know.

I mean, some of it might be psychological. It might be a form of the politics of respectability — that if you go to criminal court in D.C., you would think that white people don't commit crimes. You would think that white people don't use drugs. They don't get into a fight. They don't steal. The Black people — man, those are some bad dudes. And so maybe one of the reasons I enjoyed my work at the time that I was doing it was that I was displaying to the jurors who were almost all African American in D.C. at that time — and to the judges and to anybody else who was watching — that we weren't all like that, that some of us know how to do the right thing.

[00:19:37] And maybe part of it was also the fact that at that time, there was a crack epidemic, and the epidemic was marked by a lot of violence in D.C. And it was easy to be seduced into the idea that we prosecutors were doing the Lord's work, that we were the only thing that was standing between the good citizens of D.C. and chaos. And of course now that I've studied the failed war on drugs, and understand that a lot of the violence that's associated with drugs is actually about them being illegal, when you take away that illegal market, you take away the violence. And also understanding that there is no way that we can arrest and prosecute our way out of the drug problem. And so for some drugs where it is an issue that people shouldn't be using them, the way to address that issue isn't by locking up folks. So I know that now. I didn't know it then. So all that's to say is, I went into the prosecutor's office with some progressive intentions, hoping to make a difference. And that didn't happen.

EMERSON
Well I'm interested in what created the turn. What opened your eyes to these issues that you now recognize?

PAUL
Two things. One was kind of a slowly evolving understanding that I didn't go to Harvard Law School to lock up Black people. So even if there were some folks who I prosecuted who I thought probably deserved some kind of close supervision by the government, I don’t know if that has to be in cages. But I do think that when people harm others, there’s a role for the state. But the way that role was expressed in the District of Columbia was this laser focus on Black men.

[00:21:42] And after a while I think for any prosecutor — but especially a prosecutor of color — that relentless day to day work of putting your people in prison, of making arguments: when Kwamé says that he didn't consent to the search of his backpack and the cop says, “Yes, Kwamé did consent.” The argument the prosecutor makes is, “Kwamé is a liar. Don't believe him.” That day to day work, takes a toll, man. It grinds you down. And so that was the kind of slow burn that I couldn't continue to do this work.

The big dramatic thing that happened was that, when I was doing public corruption, I left the local prosecutor's office and was working for Main Justice — had the biggest case in the section, was the junior lawyer in the team that was prosecuting a United States senator for corruption. While I was doing that case, I got arrested and prosecuted for a crime that I didn't commit. And I'm not going to say everything that happened, because I want the listeners to check out my first book, Let's Get Free: A Hip-Hop Theory of Justice, that tells the whole story. But I'll give you a hint. Things worked out fine for me.

And the reason that things worked out fine — well, the number one reason is that I hired the best lawyer in town. Her name is Michele Roberts. She now runs the National Basketball Association player’s group, essentially the union for people who play in the NBA. But at that time, she was known as the best trial lawyer in D.C.. She was a former public defender and I got to hire her.

The other reasons that things worked out fine for me in my criminal case was that I had legal skills. Emerson, I had literally prosecuted people in the courtroom where I was being prosecuted. Another reason things worked out fine for me is, I had status. We made sure the jury knew that I went to Yale for college and Harvard for law school. Things that shouldn't matter, but do. I knew how to look like the kind of Black man a D.C. jury wouldn't want to send to prison.

[00:24:10] The other reason things worked out fine for me is because I was innocent. But when I thought about it, that didn't seem like the most important reason. I think I'd rather be guilty, and have Michele Roberts as my lawyer, than be innocent and have a lawyer who got another thousand cases, underfunded, scrambling around. So when I thought about all that had happened to me, I couldn’t continue to do that work. The Department of Justice, my employer, they would have been fine with me staying but — no way. It's funny because now my defense attorney friends, they get mad at me when they hear me talk like this because they say, you should have known. And it's true.

In my own case, a lot of things that defendants who I was prosecuting would say — they happened to me. So defendants who are prosecuted would say, “That police officer is lying. Don't believe him.” And on cross-examination, I get all up in the defendant's face, “Mr. Jones, you mean to tell me that Officer Wilson has nothing better to do but make up lies about you? Give me a break.”

Well, Emerson, in my own trial, the cop took the stand and he lied his ass off. I don't know why he did that. Defendants in my cases would say there are witnesses who know what really happened, but they won't come forward. Same thing that happened in my case. It was a stupid Fred and Barney dispute about a parking space. And it turned out that there was a history there that my landlord knew, and the landlord wasn't willing to testify in court. And so again, all of this stuff that I'd heard from the defendant, that I'd scoffed at, that I'd actually use to get convictions, a lot of that happened to me.

EMERSON
[00:26:11] Do you think based on your experience that there is any possibility to reform the system from within?

A previous guest, Sergio de la Pava, who's a public defender and novelist, is doubtful that a line prosecutor can actually achieve any type of reform. What's your perspective, having been there and tried to do it?

PAUL
So I hear two questions, two really important questions, so I want to answer those separately. So one question is about the role of line prosecutors, and another question is about whether reform will be enough.

For line prosecutors, I get this question from my students all the time. They think like I did, that prosecutors have all this power and all this discretion. For reasons I talk about in both my books — Let's Get Free and Chokehold — for line prosecutors, it just doesn't work that way. You don't have the power and discretion that you think.

Now, the person who does have that power is the head prosecutor. She is the most unregulated actor in our legal system. She can do whatever she wants. And so we have this very interesting movement now of progressive prosecutors, people who are running to be D.A.s on platforms that there are too many people who are locked up, that the police don't act right in communities of color, and they're going to change that. So I'm following this movement with great interest — folks elected in Philly, in Chicago who are trying to do the right thing, so I wish them godspeed.

[00:27:49] The other part of your question was about reform — reform versus transformation. And again, when I think about how resistance works in the struggle for racial justice, we didn't talk about reforming slavery. We talked about abolishing it. We didn't talk about reforming the old Jim Crow. We talked about abolishing it. And I don't think we should only think about reforming the new Jim Crow. I think we have to think about transformation, about ways to create safety, ways to create fairness that are transformative, ways to help people who cause harm get to a place where they're not going to do that any more.

And I think what we've learned is that locking people in cages isn't the way to go. Now, that doesn't mean that reform doesn't have a place. One of the interesting and I think best things about this new movement for Black lives and the ways that they've been able to be so effective is that they often think about being smart on crime, rather than tough on crime. And some of those ways do make a difference in the short term.

In Chokehold, I look at different kinds of reform and whether they've been effective. One reform is to have the United States Department of Justice come in and quote unquote “take over” police departments that have horrible records of abuse of citizens, especially poor people and people of color.

[00:29:45] In looking at the data, what I found is that it works about half the time in the short term. What happens about half the time is that the police stop beating up and killing as many people as they had been. And so there's no question that that's a good thing. There's no question that the groups that create that kind of reform like the NAACP Legal Defense Fund, like the ACLU, are definitely accomplishing a public good.

But in the long term, the data suggest that those effects don't last. And we're certainly seeing that now because the Trump administration has quote unquote “deprioritized” those kinds of federal investigations of local police departments. They're simply not doing them.

Long term a lot of those departments go back to their old ways. And that's part of my evidence that again the problem isn't bad apple cops. The problem is the system is working the way it's supposed to. It's the Supreme Court, among other actors in the criminal legal process, that have given the police all this power.

Emerson, did you know you could get a ticket for waiting too long at a stop sign?

EMERSON
I did not.

PAUL
Yeah. Well apparently there's a maximum amount time you're supposed to stop. And if you go past those seconds, you can get a ticket. So that's one reason that young Mr. Wren, a young Black kid in D.C., was pulled over by the cops.

And so he goes to the Supreme Court and says, “That's not why they really pulled me over. They didn't care that I was waiting too long with a stop sign. They really just wanted to stop my car to see what they can see.” And the Supreme Court said, “Well, even if that's true, it's all good because the only relevant question is whether you can actually get a ticket in D.C. for waiting too long at a stop sign.” And if the answer is “yes, you can,” it doesn't matter what the subject of motivation of the cop is, just ask whether he was following the law.

[00:31:55] And so that's a decision that authorizes racial profiling. It gives the police an extraordinary amount of power. I have a buddy of mine who is a police officer come and talk to my criminal procedure students to give them a perspective on what it's like to be a police officer in D.C. And he invites the students to go on ride-alongs, which means that one or two students will be in the back of his squad car and they'll patrol the streets with him for a couple of hours.

And to demonstrate how much power he has as a cop, including from this case that I just mentioned called Wren, the officer plays a game with the students called “Stop That Car.” He says, “Point to any car you want and I'll stop it.” So the student will say well, “How about that white Camry over there?” My buddy is a good cop. He waits until he has a legal reason. He says he can follow any driver and within a half mile, they will violate some of the hundreds of traffic regulations which gives him a legal reason to stop. So that's an extraordinary amount of power. And so again, if we're thinking about whether that can be reformed, I don't think that's enough. I think that's too unambitious. And at the end of the day, I don't think that that will create the kind of transformation that we desperately need.

EMERSON
Where do you think the reform or the abolition movement stands at the moment? It seems as if there is a more mainstream understanding of the problems of mass incarceration and even on a bipartisan basis. Where do you see the movement at the moment? Do you see any opportunities?

PAUL
[00:33:47] They're moving in a good direction, but really slow. If we look at other cases of extraordinary injustice and ask well, how did we overcome it? How long did it take? For slavery, it took 200 years. For the old Jim Crow — that violent and legal form of American apartheid — it took a hundred years.

So one question is: how long will it take for most people and especially most white folks to understand that our criminal justice system is evil? And if it takes a hundred years, during that time that preserves vast human suffering — the suffering of folks who were inside and the suffering of folks, especially children, who are doing time on the outside while their parents are locked up.

If we look at some of the reforms that are happening now, like the First Step Act — which was accomplished by the president and the Congress in a bipartisan way — it's good news. But a lot of us think it should be called the “First Baby Step Act” because what it's doing, while important, is really kind of elementary stuff that our counterparts in Western Europe and in Asia and some African countries will look at us and laugh and say, “That's your idea of reform? That's just basic human rights.” And that's exactly right. And so one concern about reform is it's going to take too long and not do enough.

[00:35:38] Another concern is that often, the way that reform of incarceration works is people think about non-violent offenders, especially people who have committed drug crimes. And the idea is that they shouldn't go to prison at all or they should go to prison for less time. So, the Brennan Center in New York at NYU, it has one of the most robust proposals for reform. So, what the Brennan Center says is that 40 percent of people who are locked up could come home tomorrow and there wouldn't be any cost to public safety. We’d be just as safe walking around the streets then with 40 percent of people who were locked up now on the streets.

If that happened — and again, we don't have nearly the political will to allow that to happen now, but one day we might — what impact would it have mass incarceration?

Emerson, we lock up so many people in the United States that even if we let 40 percent of folks out tomorrow, the United States would still have more people locked up than any country in the history of the world. And so the only way that we reduce incarceration, the only way that we reduce these vast race disparities is to think beyond reform.

And then the question is, are there ways that we could keep our communities safe? Are there ways that we could make people who’ve caused harm responsible that don't involve locking human beings in cages? I think the answer is, yes, we can.

EMERSON
Professor Butler, thanks very much for speaking with us today and thanks for all your amazing work

PAUL
Thanks for having me, Emerson. It's always a pleasure.

EMERSON
Thanks very much for listening. To get more of Professor Butler's practical advice for dealing with police, check out his new video, “Ten Commandments for Black Men,” available on YouTube.

If you appreciated this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback.

[00:37:53] ‘Til next week, peace.

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