Nice White Boys Too

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.

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.”

24 thoughts on “Nice White Boys Too

  1. Oskar

    Proposed legislation that hurts the favorable group could also be a-ok as long as it also hurts the hated ‘nice white boys’ more?

    Seems like it’s worth more to punish your own idea of the other you don’t like than helping the people you do like. Wonder why?

    1. SHG Post author

      The perpetual question: is it more important to hurt your enemies or help your friends? It’s a litmus test of whether you’re a hater or helper. Most people prefer to hate.

  2. Bruce Coulson

    And just how many ‘nice white boys’ would be acquitted, as opposed to those boys (however nice they are) of other colours?

    1. Scott Jacobs

      Is there a minimum of your preferred type that has to be helped? Is there a ratio you require?

      Or would you rather just help them, and worry about helping more the next time?

  3. John Barleycorn


    What next a grand jury powers novelette and study guide with the answers in the back?

  4. losingtrader

    Those of us committed to social justice are accustomed to being told that intersectional feminism with its focus on critical race theory, queer theory …”

    I sure wish she’d add in “fat , old and butt-ugly theory” but , of course, it looks like I’ll be waiting a few more decades. Is it too much to ask for just one of those?

    1. SHG Post author

      There was a sale on Stilton at the supermarket yesterday, so Dr. SJ bought a ton of the stuff. Now I need pears. Fat, old and butt-ugly pears will do. They all taste the same in your mouth. Does that help?

  5. Jake

    “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.”

    That may have been true in some cases, but there was/is legitimate criticism of the mens rea bill, whether or not you agree with 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.”

    Objection: Speculation.

      1. Jake

        Done. And although you didn’t ask, I agree that he outlined one good strategy. It’s not that I disagree with the strategy, it’s that I (am fairly certain) Scott and I disagree on the ‘right’ set of goals for Criminal Justice Reform. I know many others do too.

        I am an advocate for CJR. However, the CJR I advocate for does not include making it easier for people who flaunt regulations that protect the environment, our food supply, or the economy just to make it easier to turn a buck. There’s a reason why the jails aren’t flooded with those people, although our host would like us to fear the possibility: They are required to know those laws, as a function of their job.

        You know why there is a zero percent chance I am going to be prosecuted for a violation of the Lacey Act today? Because I don’t own a company that imports lumber. If I did, you can be sure I’d hire a lawyer whose job it is to know those laws and whose counsel I would follow.

          1. Jake

            Because I said flaunt instead of flout? Or because I insist on pointing out everything we disagree on whether you asked or not?

            1. SHG Post author

              We have no disagreements. I’m a lawyer. You’re a dilettante who wants to argue with lawyers. It’s fine, but it’s not real. You just don’t realize how far from reality you tend to be.

      2. Jake

        I’ll add, and you may find it surprising, I don’t disagree with Sen. Nicely’s bill. That’s part of the reason why I am relitigating the argument about the Koch Mens Rea bill. That bill and Senator Nicely’s are not comparable because the latter applies to all defendants and the former only applies to defendants who could plausibly claim they had no knowledge or intention of wrongdoing.

  6. RedditLaw

    I don’t know if I will ever understand this lust for punishing all of the nice white boys with glowing futures ahead of them that exists amongst the woke.

    No state has yet enacted Sen. Niceley’s proposed jury instruction, so we lack any longitudinal demographic data regarding which subcultural group will benefit more than others. However, some data exists for another law reviled by the woke, “Stand Your Ground”. It doesn’t appear that nice white boys with glowing futures ahead of them are the primary beneficiaries of those laws.

    In fact, out here in the far hinterlands, the legislature passed a Stand Your Ground law last year. The first Stand Your Ground hearing took place in these parts last week, and the judge dismissed the murder case in question. There is a large picture of the defendant on the website of our local newspaper. Here’s a hint: he is not one of those nice white boys reviled by the woke.

    On the other hand, the pyres in the Valley of Hinnom stoked by the woke are always open to everyone, not just the nice white boys with glowing futures ahead of them, especially if it prevents bad-thinkers from passing a good law.

    1. SHG Post author

      There’s an image in some heads that jurors will swoon over Brock Turner and acquit, but feel no similar love for a black defendant. My experience, having chatted with a few juries here and there after trial, is that only someone deluded would make such an assumption. Sure, a nice white boy may benefit. So too will many others. Either way, there are fewer convictions. Blackstone would be smiling.

      1. RedditLaw

        My experience with jurors is that they are very serious about their duties, but sometimes seriously wrong, so any instruction that gives them to option to exercise some clemency in the appropriate circumstance is welcome. I also don’t get the impression that race plays an overriding role in deliberations (but it certainly does at the penalty phase).

        As for jury nullification, I had two juries nullify last year. Yay, jury nullification! We’re now appealing both cases. Only one client had to go to prison.

        1. SHG Post author

          Would you be shocked to learn that your experience with jurors isn’t exactly new to anyone here (other than Jake)? Because, you know, we’re lawyers too (not to mention it’s been the subject of numerous posts over the years)?

          1. RedditLaw

            Precisely. I am here to educate Jake. I am hoping that we can get him to apply to law school and that he will fit in so well there that they will slap a mortarboard on his head at graduation and make him stay to teach.

          2. Zack T

            Hang on a second. Some of us are young civil attorneys who are likely years away from seeing a jury that we’re not serving on. Ok, gotta get back to billing.

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