Paul Butler refers to himself as “a recovering prosecutor.” A native of the south side of Chicago, he graduated from Harvard Law School, clerked for a judge, and went into private practice. He became a federal prosecutor with the hope he would part of solving problems in the criminal justice system that lead to so many people being incarcerated, especially African American men. He concluded that, as a prosecutor, he was part of the problem and not the solution. He left the job and is now the Albert Brick Professor of Law at Georgetown University and an advocate for major reform of the criminal justice system.
In two programs at Marquette Law School on Sept. 25, 2019, Butler called for major changes in the system. In an “On the Issues with Mike Gousha” program, he and John Chisholm, the Milwaukee County district attorney, focused particularly on the role of prosecutors.
Butler said the conventional system gives prosecutors too much power and discretion, to the detriment particularly of black men. He said it is a myth that there is a trial system for criminal cases. More accurately, there is a plea-bargaining system, he said, and it works against those with the least resources.
Butler said he comes from a faith tradition that holds that to whom much is given, much is expected. He said prosecutors have more power than even judges in deciding how a person’s involvement with the criminal justice system proceeds. Prosecutors have great discretion and their decisions cannot be appealed, Butler said. And he said that they do not meet expectations for using their power to help communities.
Butler called particularly for Wisconsin to make changes because the percentage of African American men who are in prison or jail is substantially above the national average. He said reforms aimed at reducing prison populations are gaining momentum around the country. That includes a new federal law, passed with bipartisan support, aimed at reducing prison populations.
But, he said, “Something is happening around most of the country that is not happening in Wisconsin.” Butler said. “You lead the nation in locking up African American men.” He said that this is a result of policy decisions and law enforcement priorities and not differences in rates at which black people in Wisconsin commit crimes, compared to black people elsewhere, or rates at which white people commit crimes.
Chisholm became district attorney in 2007 and he said he embarked then on finding ways to reduce incarceration rates and the disparities between white and black rates for going to prison. He said he wants prosecutors to share some of their power with others, including defense attorneys, to find ways to help people solve problems rather than just to send them to prison where they don’t get much help.
Gousha, the Law School’s distinguished fellow in law and public policy, asked if changes have had positive effects. “The short answer to that is yes and the long answer is we have a long way to go,” Chisholm answered. He said Milwaukee County leads the state in reducing incarceration rates and the black-white disparity has been getting “flatter.”
Later that day, Butler delivered the 2019 Robert Boden Lecture, titled “Prison Abolition: The Ultimate Reform?” The text of his remarks is expected to be printed in an upcoming issue of Marquette Lawyer magazine.
Video of the hour-long program with Butler and Chisholm may be viewed by clicking here.