The racially based jury nullification argument proposed by law professor Paul Butler after the infamous O.J. Simpson trial suggests that African American jurors should refuse to convict fellow African Americans regardless of the strength of evidence against them. Jury nullification has its roots in English common law when a juror chooses to acquit despite believing the evidence presented at trial, motivated by either moral grounds or perception that the law of conviction is inherently unfair. Butler argues that based on moral grounds, some offenders deserve to return to the community rather than go to prison since there is already a direct to prison pipeline from many of these underprivileged communities, and often law enforcement arrests and prosecutes black individuals for nonviolent crimes. Essentially, his argument of racially based jury nullification is a matter of civil rights resistance in a way against a system that is racially biased and unfair to African American communities, so he calls upon jurors to use their conscience when deciding to convict, even if all evidence points to the law being broken.
It is important to note that Butler did not call for blind acquittal of all cases. In fact, he believed that violent offenders should go to jail when there is proof beyond a reasonable doubt. He knew that violent criminals dragged down African American communities and argued that these individuals should be separated for the sake of those that are non-violent offenders. Obviously, he distinguished violent crimes such as murder, severe assault, rape, and armed robbery while non-violent crimes could include aspects such as minor drug trade and use, petty theft, minor assault or resistance to police, violation of parole, etc. Butler argued that cases can be complex and it ultimately depended on the circumstances of the crime, while self-destructive behavior should be prohibited, the motives behind the crime, such as poverty or addiction might justify acquittal to ensure that the defendant may potentially receive another chance at making the correct choices.