Janice A. Oser, Esq.

The title of this column is in quotes because it is the title of a lecture given recently at the New York University School of Law. The lecture was given by Professor Paul Butler. Professor Butler teaches criminal law, race relations law, and jurisprudence at the George Washington University Law School, where he was voted “Professor of the Year” three times by the graduating class. He served as a federal prosecutor with the U.S. Department of Justice, and also as a special assistant U.S. attorney, prosecuting drug and gun cases.

During his lecture, Professor Butler showed videos of hip-hop music performances illustrating the thesis that when too many people are absent from their communities because they are in prison, their imprisonment may have unintended consequences. One of these is that popular culture, in particular, hip-hop, presents prison as a rite of passage, so that punishment begins to lose its deterrent effect.

Hip-hop, in its music and visual art, according to Professor Butler, reflects the fact that many people in the "hip-hop nation” have been in prison, or have loved ones who have been in prison. “Shout outs” to inmates (expressions of love and respect) are commonplace in hip-hop. When going to prison is not seen by a community as a disgrace, Professor Butler said, something is very wrong.

From the work of hip-hop artists, Professor Butler has inferred a hip-hop theory of justice. He has developed this idea in an article in the April, 2004 Stanford Law Review, “Much Respect: Toward a Hip-Hop Theory of Punishment.”

Professor Butler spoke briefly of his experience as a federal prosecutor of drug and gun cases. He was assigned to cases with black defendants, before all-black juries, as juries are most likely to be in Washington, D.C. He knew, he said, that as a well-dressed black man who had clearly achieved something in his life, he could get that jury on his side, against what he began to think of as the hapless defendant. That, plus certain statistics, started him thinking about taking another path, which led to a career as a law professor and legal scholar, and one of this country’s most frequently consulted scholars on issues of race and criminal justice.

Some of the statistics were these: In the mid-1990’s, a study found that one in three young black men were under criminal justice supervision. In the U.S. approximately half of the people in prison are African American, even though African Americans make up only about 12% of the population. And, perhaps most tellingly, statistics compiled by the U.S. government indicated that blacks were about 15% of monthly drug users, yet they accounted for 33% of drug possession arrests and more than 70% of people incarcerated for drug use.

Such statistics help to explain the theory of punishment that Professor Butler finds to be implicit in much of hip-hop. In his Stanford Law Review article, he sets out the theory in the form of six principles. The first is that the purpose of punishment should be retribution. Wrongdoers should suffer the consequences of their acts. As one hip-hop lyric puts it, you shoot my dog, I kill your cat. At the same time, hip-hop evidences respect for the criminal’s humanity, as does the Bill of Rights’ prohibition of cruel and unusual punishment. The Eighth Amendment, Professor Butler writes, “prohibits the state from punishing criminals in a manner inconsistent with their dignity.”

Hip-hop theory, however, as derived by Professor Butler, would modify the theory of retribution to the extent that punishment as retribution assumes a world in which benefits and burdens are distributed equally. The hip-hop nation sees benefits and burdens as allocated in an uneven and racialist manner. From this point of view, the choice of a poor person to sell drugs is less blameworthy than the choice of a middle-class individual to engage in, say, insider trading.

The second principle of the hip-hop theory of punishment as deduced by Professor Butler is that punishment should be limited by practical concerns, especially the effect on people other than the lawbreaker. Families suffer when incarcerated parents cannot provide for their children. The message from hip-hop, says the Professor, is that considerations of this sort must be taken into account when an individual is to be punished. Consideration of collateral consequences might lead to sanctions other than imprisonment, or shorter terms. Family leaves might be allowed, or prisoners permitted to work to support their families.

Third, implicit in hip-hop is the principle that punishment should be targeted to the harm caused by rich people more than to the harm caused by poor people. A frequent hip-hop theme, Professor Butler writes, is that the law does not properly weight the danger posed by blameworthy conduct by privileged white people or the government, and exaggerates the threat posed by the poor and by minorities.

Fourth, although hip-hop acknowledges the adverse consequences that drugs can have on individuals and communities, the hip-hop consensus appears to be against punishment of drug offenders. At least, Professor Butler writes, the hip-hop view is that “the government bears the burden of proving that it can regulate drugs in a manner free of racial bias and that the benefits of regulation will not be outweighed by the costs.”

The fifth principle of this hip-hop theory is that punishment should be imposed by people within the community and not by outsiders. This could mean, in practice, that a defendant would have the right to jurors from the defendant’s community, and the jurors would have sentencing authority.

Sixth, hip-hop suggests that prison should be used sparingly as an instrument of punishment. “The virtually universal view in the hip-hop nation,” Professor Butler writes, “is that punishing people by locking them in cages for years is miserable public policy.”

Some or all of these principles may seem reasonable or unreasonable. At least, they throw light on what much hip-hop music and visual art is about. Professor Butler notes in the conclusion of his article that much of hip-hop is sexist and homophobic and suggests that hip-hop cannot claim moral authority, and that its implicit theory of justice cannot gain credibility, unless and until these deficiencies are addressed.

Anybody want to chime in? (You know how to reach us.)