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50 UCLA L. Rev. 721 (2002-2003)
By Any Means Necessary: Using Violence and Subversion to Change Unjust Law

handle is hein.journals/uclalr50 and id is 737 raw text is: By ANY MEANS NECESSARY: USING VIOLENCE AND SUBVERSION TO CHANGE UNJUST LAW Paul Butler* There remains law in the United States that discriminates against African Americans. Important legal advancements in racial justice in the United States historically have been accomplished by tactics that included subversion and vio- lence. This Article evaluates the use of subversion and violence to change con- temporary law perceived as discriminatory, when traditional methods are ineffective or too slow. It applies just war theory to determine whether radical tactics are morally justified to defeat certain U.S. criminal laws. This Article recommends an application of the doctrine of just war for nongovernmental actors. In light of considerable evidence that the death penalty and federal co- caine sentencing laws discriminate against African Americans, subversion-in- cluding lying by prospective jurors to get on juries in death penalty and cocaine cases-is morally justified. Limited violence is also morally justified, under just war theory, to end race-based executions. Those concerned about morality should not, however, use any means necessary to defeat race discrimination. Minorities must tolerate some discrimination, even if they know they have the power to end it. INTRODUCTION: CRITICAL QUESTIONS ABOUT CRIT TACTICS ................... 723 I. CHANGING THE LAW: THE OLD WAYS .................................... 725 I1. Two CONTEMPORARY EXAMPLES OF DISCRIMINATORY LAWS .............. 728 A . C apital Punishm ent ............................................... 730 B. C rack C ocaine ................................................... 733 Ii. THE NEW WAYS: CRIT JURORS AND RACE REBELS ........................ 737 A . C ritical T actics ................................................... 737 B . Subversion ....................................................... 738 1. Lying to Save Lives ........................................... 738 a. Case 1: Death Penalty ..................................... 740 b. Case 2: Crack Cocaine .................................... 740 c. You, the Juror ............................................ 741 2. H eroic C ase .................................................. 743 * Professor of Law, George Washington University. B.A., Yale; J.D., Harvard. Earlier ver- sions of this Article were presented in faculty workshops at Cincinnati, Columbia, Howard, Rutgers-Camden, and George Washington University law schools. I thank the participants in those meetings. Special thanks to Chandra Bhatnagar, Kimberl6 Crenshaw, Angela Jordan Davis, George Fletcher, Glynis Hammond, Sean Murphy, Kendall Thomas, William Rubenstein, Michael Starr, Ralph Steinhardt, and Robert Tuttle. Jeremy Medovoy and Rachel Zakar provided superb research assistance. This Article is dedicated to the memory of Edith Blakely, my grandmother, and Rosalee Fulton, my great-aunt.

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