Conservative Republican Tennessee senator Frank Niceley offered a bill to change jury instructions that blew me away. Nashville criminal defense lawyer Bryan Stephenson posted a shot of the critical passage on the twitters.
Conservative TN republican just submitted a bill to instruct on jury nullification. pic.twitter.com/mBY49t7IHh
— Bryan Stephenson (@TNCrimDefense) February 2, 2019
Notably, it’s a one-way instruction, to override the law, even if found to be proven beyond a reasonable doubt, if conviction would “yield an unjust result.” This distinguishes it from many arguments for jury nullification which would vitiate the burden of proof and presumption of innocence, such that it would allow a rogue jury to convict as well as acquit without regard to law.
It’s not that such an instruction would be without a downside. Almost all “solutions” are flawed, requiring a decision as to whether the good is worth the bad. It could be used by a jury to acquit a cop for a wrongful killing. It could be used by a jury to acquit a white man of murdering a black man based on race. Juries are our neighbors. One never knows what they’ll do.
Despite the potential downside, there was rousing support by the criminal defense bar for this proposal. But that support was not universal.
What would make someone take the view that it would be more beneficial to “nice white boys,” or that benefitting “nice white boys” along with every other defendant would be a negative? Is it because the senator proposing the law is a conservative Republican, and therefore the bill is tainted even if it would be hugely beneficial to all defendants?
After all, the mens rea bill proposed in Congress was lambasted not because it wasn’t a great bill, but because the Koch brothers supported it. If bad people support good law, it must be bad law. If Alexandra Ocasio-Cortez proposed the exact same law, the exact same words, it would have been lauded as the greatest thing since sliced bread.
Or is it just that the hatred of the doctrinaire view of social justice has festered to the extent that its warriors want good things to happen to “marginalized” identities, but bad things to happen to white people? Helen Pluckrose’s critique* of the distortions created by the ideology of intersectionality provides a useful explanation.
Intersectionality, by undervaluing shared human experience and rights — universality — and personal autonomy and distinctiveness — individuality — and focusing intensely on group identity and intersectional ideology, places individuals in a very restricted “collectivist” position previously only found in very conservative cultures.
It is regrettable that intersectionality in practice so often manifests in restrictive ideological conformity, exclusionary tactics, hostility, tribalism and even racist abuse. It’s regrettable because liberalism could be benefitted by specialist attention to the ways in which specific groups within society are advantaged or disadvantaged. However, focus on group identity and experience should not come at the cost of respect for the whole world of human ideas and experience and every individual’s right to access and subscribe to any part of it. Until intersectionality respects diversity of ideas as well as of identity and supports every individual’s right to hold any of them regardless of their group identity, it cannot be said to represent anything except its own ideology.
Part of the problem faced in trying to remedy the legal system is that the woke impute nefarious motives on any reform proposed by, perhaps even supported by, people whose identities are deemed wrong. A good idea from a person deemed bad by the woke is bad. They can’t tolerate the notion that someone they hate could do something acceptable.
Another part is that it shifts the balance of values behind the proposal, from one that favors all defendants, and therefore favors minority defendants because they are disproportionately represented in the well, to one that favors “nice white boys.”
An old platitude is that “a rising tide lifts all boats,” and it’s likely that a great jury instruction as proposed by Senator Niceley will inure to the benefit of “nice white boys.” But it is just as likely to aid defendants of every color and gender, if not moreso. And yet, does that make it a bad thing? Yes, it does, to those obsessed with identitarian dogma. It’s not enough that black and brown defendants will benefit, but that it might let a “nice white boy” walk is intolerable.
This distinction has become pervasive among the woke, reflecting the “low hanging fruit” argument that enjoys great appeal with SJWs. For example, a primary argument for the legalization of marijuana is that arrests disparately impact minorities. While true, the same can be said of murder and rape, yet no one is arguing for their legalization. The only question that should be asked is whether the marijuana should be legal, without regard to the skin color of people arrested. Disparate policing is a stand-alone problem, and makes marijuana neither more nor less appropriate for legalization.
If it turned out that more “nice white boys” were arrested for weed, would the woke be calling for legalization or applauding the police for eradicating this white blight on our landscape? “Legal Phil’s” knee-jerk racist reaction is fairly typical of dogma-gone-deranged, but it precludes good law, good ideas, because they might help an “unworthy” racial demographic, even if it would serve everyone. Is it better to kill good reform for all defendants than allow the hated “nice white boy” to enjoy its benefits along with those they venerate? This isn’t going to work.
*Unfortunately, Pluckrose gertrudes her opening sentence, likely to deflect the obvious criticism to follow:
Those of us committed to social justice are accustomed to being told that intersectional feminism with its focus on critical race theory, queer theory and anti-ableism is the key.
While she no doubt is “committed” to the same good causes as social justice warriors, from eqaulity to diversity, that’s not the same as the loaded phrase “social justice.”