Tuesday Talk*: Elie’s Urge

When my good buddy, Elie Mystal, proposed jury nullification as the remedy for the failure to convict cops of murdering black guys, his intention was to make a point by a radical example.

Maybe it’s time for black people to use the same tool white people have been using to defy a system they do not consent to: jury nullification. White juries regularly refuse to convict or indict cops for murder. White juries refuse to convict vigilantes who murder black children. White juries refuse to convict other white people for property crimes. White juries act like the law is just a guideline and their personal morality (or lack thereof) should be controlling.

Maybe it’s time minorities got in the game?

If whites on juries were going to give murdering cops a pass, why shouldn’t blacks on juries do the same? He wasn’t really suggesting that juries should acquit murderers, but that there shouldn’t be different outcomes based on the race of the killer. Of course, that could be said about the occupation of the killer, rather than his race, but Elie sees color where someone else, like me, sees a shield.

But the same can’t be said for Elie’s irresistible urge for incarceration when it comes to a different crime than murder.

I don’t mean to sound like an incarceration-loving neo-liberal, but part of my response to #MeToo has been to favor more jail. I want more things called crimes, and the penalties for those crimes to be more harsh. Yes, yes I know damn well that whenever you make more crimes and more penalties, you make something that will disproportionately affect people of color and poor people. For every Brock Turner that you finally put the hammer to, you risk creating a bunch of black and brown “criminals” who are guilty of looking at the wrong white girl. And there’s no guarantee that your enhanced criminal regime will even catch the Turners of the world, ensconced as they are in their white privilege in front of white judges and juries who will seemingly always give them the “boys being boys” benefit.

Despite that… I’m pretty confident that more men need to be in jail for failing to achieve consent.

Elie may not want to sound like “an incarceration-loving neo-liberal,” but he does, and he just can’t help himself. Analogizing from the experience of AIDS, Elie concludes that the War on Drugs Sex will work if only the punishment is as severe as death.

If the penalty for failing to achieve consent was consistent and devastating, more people would achieve consent. And we can sort out the disparities in race, education, and believability LATER. FIRST less rape, THEN more equality, if that’s the dystopian choice I have to make.

Who would have thought that Elie would join arms with the “convict the innocent” crowd if it meant that women could enjoy irresponsible sex and cry rape the next day, month or year?

Elie pressed his point at a panel of the American Association of Law Schools, where his carceral demands were not particularly well received.

I asked about moving the standard towards affirmative consent. Instead of “No means No,” which for some reason has resulted in “miscommunication” about whether a “no” was sufficiently lodged, why not move to a “Yes means Yes” standard where the absence of a firm, provable, “YES” is all the potential victim has to show to get the criminal process rolling?

You know that scene in Airplane where everybody lines up to slap the hysterical woman and tells her to get a hold of herself? Yeah, that’s pretty much what happened to my question.

Not only did Elie fail to appreciate that if “no means no” wasn’t good, then “yes means yes” was far, far worse as a means of clear communication. But mere repeated slaps would not put him off.

While I was fully prepared to die on the affirmative consent hill in the face of all of those arguments — good arguments which I don’t find ultimately fatal to an affirmative consent regime — Professor Yung really surprised me with a study that suggested juries really don’t care about affirmative consent.

Long ago, lawprof Corey Rayburn Yung seemed to offer hope in empiricism, but that didn’t last too long. Elie found an ally in his fight to fill prisons, even though Yung wasn’t nearly as filled with the zeal at Elie. Still, it was better than another hard smack.

That seemed to be the place where the panel, and I, could agree. Let’s address the rape and assault cases where we all generally agree “rape” or “assault” has occurred, before we start criminalizing additional behaviors. That feels a little unsatisfying to me as a “response” to #MeToo. But also feels like the only reasonable place to start addressing the violence against women that necessitated the #MeToo movement in the first place.

Is the problem so bad that the rules should change, that a voice decrying the uneven dispensation of “justice” when it comes to race is all in favor of special pleading when it comes to gender? Is Elie’s urge for more crimes, more incarceration, justified this time, or is this just the same carceral urges applied to his disfavored defendants? Discuss.

*Tuesday Talk rules apply.

50 thoughts on “Tuesday Talk*: Elie’s Urge

  1. Scott Jacobs

    Who would have thought that Elie would join arms with the “convict the innocent” crowd if it meant that women could enjoy irresponsible sex and cry rape the next day, month or year?

    *raises his hand*

  2. David Meyer-Lindenberg

    It’s abundantly clear why Elie failed as a lawyer. On the other hand, his remarks would be well taken if he were running for Charles Rangel’s old seat.

    1. SHG Post author

      Elie didn’t fail, but found that he wasn’t suited to the practice of law. There’s nothing wrong with that. In a very real sense, politics is the antithesis of law, where politically desirable outcomes trump reason and principle, so maybe his taking up Charlie Rangel’s old seat is very much the point. The conflict between feelings and reason doesn’t make feelings wrong, just irrational. The question is whether society is better served by rational policy is policy that makes people happy at any given moment.

      1. David Meyer-Lindenberg

        Elie didn’t fail, but found that he wasn’t suited to the practice of law.

        My bad. Lemme rephrase: Elie and I are in complete agreement.

        That said: Elie’s MO is to amplify outrage and sell his readers easy solutions. His good fortune is that outrages change from day to day, so he never runs out of material. On the other hand, today’s outrage has a way of contradicting yesterday’s.

        Is there any rational way to reconcile yesterday’s demand that minorities decline to acquiesce in the racist justice system with today’s that they crank up the conviction machine for the sake of #MeToo? Of course not. It’s inane. And while inanity’s apparently a great palliative for ATL readers, I kinda doubt it makes them happy or serves them well, beyond that initial rush from condemning the enemies of Oceania.

        1. SHG Post author

          That’s the question, can they be rationalized? Do they need to, or is it enough that they produce the desired outcomes even if facially irreconcilable?

          1. David Meyer-Lindenberg

            My tentative suggestion would be that the desired outcomes aren’t that desirable even to those who, all caught up in an ATL post, think they desire them, as further weakening the criminal justice system for the sake of some transitory outrage leaves them practically and morally worse off. Even the most passionate Legal Aid type probably won’t benefit from stewing in his anger to the point he advocates “reforms” that screw his clients.

            Now, granted, the passionate Legal Aid types may not recognize that. But everyone else should, purely from the incoherence of Elie-type demands. So if it falls to everyone else to stand athwart progressive legal clickbait and yell, “Stop,” so be it, I guess.

            1. SHG Post author

              As you know, that’s my view as well, but that view requires one to take a longer and deeper look than the outcome of the moment to the impact on the system. And that’s hard and makes people sad.

        2. LocoYokel

          Most people are not consistent in the positions they take across various issues. I will be generous and say that I think it’s just that most people don’t think about them rationally all together and realize the inconsistencies until confronted with them. I know that I have had to confront a few I had since I started reading here (and am still struggling with a few), but when you consistently espouse the same conflicting positions after having them repeatedly, explicitly pointed out to you and refuse to acknowledge or address them I have to question your integrity or motives.

          At this point anything Elie says goes into the trash bucket because I do not believe that he is operating in good faith.

          1. SHG Post author

            There is an argument, to which I do not subscribe, that there is consistency to be had in eschewing principle in favor of outcome as determined by victimization. If the victim hierarchy was accepted as both real and sufficiently tenable to base a belief system, then doing whatever is necessary to achieve the requisite outcome could, in its own fashion, be considered an alternative consistent position.

            Am I making any sense here?

            1. David Meyer-Lindenberg

              Yes. But that argument doesn’t explain Elie’s actions either. Even if you assume his version of the victim hierarchy ranks women above minorities, he still recommends conflicting courses of action.

            2. Scott Jacobs

              Especially when the majority of those who suffer due under his theory will be young black men.

          1. SHG Post author

            But was he admitted when he worked for D&P? That was years ago. Time flies, and biennial dues are expensive.

            1. Scott Jacobs

              I’d be interested to know if he ever was admitted to the bar, but for some reason, I don’t think he’ll answer my question.

            2. SHG Post author

              I just checked Elie’s cross to see if there’s any mention of it, but apparently not. However, Elie is a very funny dude.

              Yes, I’ve had every educational opportunity in the world laid out before me, and I’ve transubstantiated it into a career of writing dick jokes about lawyers. Mother couldn’t be more proud.

              How can you not love this guy?

  3. paleo

    “Maybe it’s time for black people to use the same tool white people have been using to defy a system they do not consent to: jury nullification.”

    Isn’t that basically what the O.J. jury did a quarter of a century ago?

    Mystal is a guy who wants every outcome determined by race or gender, while simultaneously calling damn near everybody a racist or misogynist. Physician, heal thyself……..

    1. SHG Post author

      From the critical theory perspective, the marginalized can get away with things that the privileged cannot. That’s kind of the point.

  4. Keith


    “the absence of a firm, provable, “YES” is all the potential victim has to show to get the criminal process rolling?”

    What is a provavable yes here?

    1. SHG Post author

      There are issues with Elie’s conception of affirmative consent, not the least of which is that it doesn’t require verbal consent, that it’s no more provable than no, that even verbal consent is negated by post-hoc claims of intoxication or hidden reluctance, all of which manifests itself afterward. But Elie’s position really isn’t so much about a “firm, provable, ‘YES,'” but the willingness to let a few innocent guys take a bullet for the cause. He just hopes they’re Brock Turner color.

      1. Keith

        That I got. But Elie seems to believe that there’s a possibility it’s a worthwhile cause, based on the idea that it *could* work. He evidence, in the best light, seems to be absurdly lacking.

        So how can I (or anyone else) be convinced to share his belief?

        1. Scott Jacobs

          Shovel to the head? Severe oxygen deprivation for a prolonged period? Full frontal lobotomy?

            1. SHG Post author

              As you know, I think Elie’s exceptionally smart, which creates a bit of cognitive dissonance when he writes something like this that blatantly panders to the unduly passionate. I chalk it up to the needs of the platform, given ATL’s shift from law to social justice, but would need to share a few cocktails with Elie to be sure.

  5. Rojas

    His argument boils down to “Kill them all and let god sort ’em out”.
    I suppose the fact that he reported a little push back from the panel is a positive thing.

    1. SHG Post author

      Positive? I was pleasantly shocked, but that reflects more the make-up of the panel (good crim law profs) than any broader sensibility in academia.

      1. Rojas

        Yes positive as in a good thing.
        It appears four out of five panelist had at least some CD experience with the moderator having clerked for William Wayne Justice.

        Another thing that stands out at least from Elie’s narrative is that the panel seemed to take a reality based view of the complexity of sexual negotiations between the young and relatively inexperienced. That stands in stark contrast to activist academians view of the mating dance. A view that appears to be shaped by research from incel cat ladies with experience limited to war gaming these relationships in a petri dish such as a gender studies workshop.

        Whether it was his intention or not Elie’s article show the absurdity we’ve sunk to in these matters.

  6. Jake

    Wow. You might as well have done a Tuesday talk about some of my old comments. As for your questions:

    “Is the problem so bad that the rules should change?” Yes, if the problem we’re talking about is the uneven dispensation of justice.

    “Is Elie’s urge for more crimes, more incarceration, justified this time” Yes, but not how Elie imagines. It’s the system man. The system is failing. Judges, cops, prosecutors, and politicians need to be held responsible when they don’t dispense equal justice under the color of law. When people trust the system again, then we can start tinkering with it again.

    1. SHG Post author

      How do you know when justice is evenly dispensed? (Ironic that you use a clip of a lawyer violating every precept of his duty to “get” the bad powerful white man.)

      1. Jake

        I thought you’d like that more than El P’s lyrics from “Close Your Eyes (And Count To F**k)”

        “We outta order? Your honor you outta order. This whole court is unimportant and you fuckers is walking corpses.”

        “How do you know when justice is evenly dispensed?” When race-specific incarceration rates are no longer accurately categorized as grossly disproportionate to the overall population of the US and when we start punishing cops for slaughtering unarmed citizens.

        1. SHG Post author

          But how do we accomplish “even” dispensastion of justice? Let black guys walk after we reach the quota or arrest innocent white guys to make up the difference?

          1. Jake

            I’m not gonna address the assumptions in your argument. I have personally benefited from differential selection based on my race on multiple occasions and at different levels within the system, so I know it is real*.

            The very notion of a quota is a problem. There should not be quotas. Cops running around poor neighborhoods looking for people who might be committing a crime so they can put numbers on the board is how we got into the problem, not how we get out of it.

            *Before you ask how I know, on at two separate ocassions the person who let me walk made it absolutely clear why they were. And it wasn’t my good looks or charming disposition, even though I’ve obviously been blessed with both.

  7. B. McLeod

    Elie does not seem to understand what (if anything) “necessitated” #MeToo, which is hardly limited to concerns with “violence against women.”

  8. RedditLaw

    Will no one speak up for Elie?

    Has anyone considered whether he is seeking to improve society by employing Chernyshevsky’s maxim?

    Чем хуже – тем лучше, indeed.

    1. SHG Post author

      I wish someone would, as it would be worthwhile to know if there was a principled argument supporting the carceral shift.

  9. ElSuerte

    Side note to Elie’s tortured AIDS metaphor: In my state (CA) there’s a movement to decriminalize lying about HIV status (it’s already gone from felony to misdemeanor), and a movement to criminalize lying about condom use. Some types of rape by deception are more heinous, I guess.

    I think we’re going to see more hue and cry abouy “fully informed” consent once affirmative consent loses steam.

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