If hip-hop culture reshaped our justice system...

Paul Butler is a Harvard Law grad and former federal prosecutor who believes that the American criminal justice system is broken. In his book, "Let's Get Free: A Hip-Hop Theory of Punishment," published by The New Press, he offers a vision of justice that he hopes would lead to fewer inmates and fairer treatment of the accused. It's a theory founded in pop culture. Butler is a law professor at George Washington University.

GUEST BLOGGER: Paul Butler

Imagine crime and punishment in a hip-hop nation. Believe it or not, the culture provides a blueprint for the transformation of American criminal justice. Hip-hop leads us toward a system that would enhance public safety and treat all people with respect. Who would have thought that the most thuggish art could improve law and order?

I grew up listening to hip-hop, and I "can't stop/ won't stop" digging the music now that I am a law professor. But it was when I was a DC prosecutor that I really started to learn from it.


Chuck D of Public Enemy. (Samir Hussein/Getty Images)

Chuck D, of Public Enemy, described hip-hop as "the Black CNN." The artists give us ground level reporting about the collateral consequences of the dramatic expansion of U.S. prison population.

Hip hop is obsessed with criminal justice. Its fashion actually began as a tribute to the loose baggy clothes that prison inmates wear. Thousands of hip-hop songs consider crime and punishment. They evaluate justice from the bottom up. No other form of pop culture does a better job at reminding Americans that we have the highest rate of incarceration in the world, and that communities can be destroyed by both crime and punishment.

When hip-hop artists rap about criminal justice, it's often based on experience. Many of the artists -- from the current best sellers Lil Wayne and T.I. to old school stars like Slick Rick-- have been locked up. They have that in common with other African-American men. On any given day about one in three young black man has a criminal case: he's either in prison, on probation or parole, or awaiting trial.

When a large percentage of the people you know and love get locked up, prison seems to say as much about the state as it does about those young men. Jay-Z raps "if he's locked in the pentintiary, send him some energy, they all winners to me."

What's happened in our society that prison inmates are viewed as winners? What's happened is that we have used prison promiscuously. The United States has 5 perent of the world's population, and 25 percent of the world's prisoners.

This is mainly the result of "the war on drugs," which has been waged selectively against African-Americans. So many people in the black community have gotten locked up, that going to jail has lost its stigma. The hip-hop slang for getting prosecuted is "catching a case." It's sort of like catching the flu -- a little bit your fault, a little bit just bad luck.

The message in hip-hop is that any organization that is composed primarily of people like us must be cool: it doesn't matter whether it is Howard University, the National Basketball Association or the DC Jail. So when people say that hip-hop glorifies crime, it is more accurate to think of it as glorying African-American men: it rejects the stigma that the criminal justice system tries to put on us.

Hip-hop suggests that the way to make citizens have more respect for the criminal justice system is to make the system more respectable. So what would criminal justice look like in a hip-hop nation? The philosopher John Rawls suggests that law is most just when it is made by those who don't know how they will fare under it.

Since minority members of the hip-hop community are most likely to be arrested and most likely to be victims of crime, they come closest to Rawl's ideal lawmakers. Their theory of justice values public safety, fairness to accused persons, and effective punishment.

We would do better if the ghetto philosophers and the classic theorists met. It turns out that English jurist and social reformer Jeremy Bentham and Snoop Dogg have a lot in common. Erykah Badu and philosopher Immanuel Kant would get along well, but their differences would be instructive.

Hip-hop artists represent a community that has borne the brunt of this country's mad rush to incarcerate. That community knows much, has laid it down on tracks, and now attention must be paid.

By Steven E. Levingston |  December 1, 2009; 5:30 AM ET Politics , Steven Levingston
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Comments

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You know, this blog entry sets up an interesting thought experiment (what if hip-hop reshaped the justice system?) . . . and then utterly fails to actually DO the thought experiment. As I read the entry, I kept expecting Levingston to say how hip-hop would reshape it -- to say exactly what a justice system, informed by hip-hop culture, would like, but he never gets there. He just keeps hammering on the point that hip-hop reflects our culture's justice system but never gets to the conclusion.

Next time, Levingston, make sure you actually hit the point you set up.

Posted by: rlalumiere | December 1, 2009 4:56 PM

I'm sorry -- I meant Paul Butler (not Levingston).

Posted by: rlalumiere | December 1, 2009 4:57 PM

This is absurd.

Posted by: populus | December 1, 2009 5:01 PM

rlalumiere, Professor Butler's done a lot of work on the exact "thought experiment" you highlighted.

See his latest book Let's Get Free: A Hip Hop Theory of Justice.

Also, available for free on SSRN, Much Respect: Toward a Hip-Hop Theory of Punishment.

Posted by: aaronjsussman | December 1, 2009 5:27 PM

I'm disappointed too, I hoped for a lot from this.

For one, this doesn't follow:

"The philosopher John Rawls suggests that law is most just when it is made by those who don't know how they will fare under it.

"Since minority members of the hip-hop community are most likely to be arrested and most likely to be victims of crime, they come closest to Rawl's ideal lawmakers."

If the ideal situation is behind a veil of ignorance, then any degree of certainty about your outcome makes you progressively further from the ideal. The proper conclusion from this argument is that minority members of the hip-hop community are going to be as poor judges as the current decision-makers, because they will have a similar level of certainty about whether they will be prosecuted in relation to other groups.

Posted by: Section506 | December 1, 2009 5:41 PM

This article is old news and does not explain how hip hop could reshape the justice system. How many more words does this professor need before we understand his point?

Posted by: trumeau | December 1, 2009 5:56 PM

First,to Populus: absurd, stupid, heretical, lazy, sinful...all these adjectives just further the ignorance-based thinking that is all too popular. Labeling is not refutation, it is puerile self-expression.

Empathy seems difficult for those who comment. The cry of youth caught in a post-Jim Crow world about the overwhelming injustice done to the black man regardless of whether one is president is the essence of hip-hop and the theme is the ongoing injustice of the drug-war incarceration of young black men to keep a revolution from happening. Mr. Clemmons shot down 4 white law officers. It is not so different from walking into a restaurant with a bomb attached to oneself. Regardless of how misguided, it is an act of rage stemming from powerlessness and years of abuse--and in Mr. Clemmons case, his abuse led him to abuse others.

No justice, no peace, no matter where.

To understand Mr. Rawls better, read below:

The Two Principles of Justice: The Liberty Principle and the Difference Principle
The two principles of justice are the liberty principle and the difference principle. The two principles are intended to apply to the basic structure of society--the fundamental political and economic arrangements--as opposed to particular actions by governmental officials or individual statutes. The liberty principle requires that the basic structure provide each citizen with a fully adequate scheme of basic liberties--such as freedom of conscience, freedom of expression, and due process of law. The difference principle requires that inequalities in wealth and social position be arranged so as to benefit the worst off group in society. Rawls states that the two principles are lexically ordered, with the liberty principle taking precedence over the difference principle in the case of conflict.

Posted by: johnmcmullen2 | December 1, 2009 6:48 PM

None of that summary of Rawls has little to do with his argument that hip-hop minorities are closer to the original position than current elites. Had he made an argument about the difference principle, you might have a point. But he didn't.

Pretending he made your argument about the difference principle, the liberty principle would first demand building a basic structure to provide full liberty, far from what we have now (see crack-cocaine sentencing disparity, for the low-hanging example), and THEN applying the difference principle. You point out as much.

But the claim that: "Since minority members of the hip-hop community are most likely to be arrested and most likely to be victims of crime" [the inequality should be decided in their favor] would be unsustainable.

The author's point still wouldn't hold water.

Posted by: Section506 | December 1, 2009 7:02 PM

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