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September 11, 2022

Making the case for jury nullification in response to criminalization of abortion

LawProfs Peter Sali and Guha Krishnamurthi have this notable new Inquest piece talking up jury nullification as having "a role to play in securing reproductive rights" in the wake of the Supreme Court reversal of Roe.  The piece is fully titled "Nullifying Dobbs: Jurors’ conscientious refusal to convict people charged for violating abortion bans is perfectly legal — and what justice demands." (The Inquest piece is a shorter exposition of this essay on SSRN titled "Nullification in Abortion Prosecutions: An Equilibrium Theory.")  Here is an excerpt:

[W]e expect the effect of nullification on abortion prosecutions to be twofold.  First, it will reduce the range of cases that will be brought.  Prosecutors fearing the possibility of objectors on the jury will avoid bringing the most unpopular charges.  Second, when instances where prosecutors do bring charges, nullification may change the outcome of some cases.  This becomes more likely as criminal penalties become more obviously unjust.

There is some evidence beyond idle speculation of the above potential for nullification.  Marijuana prosecutions are a relevant precedent.  In roughly the past decade, public support for the criminal prohibition of marijuana has cratered — dropping by nearly half.  Today, only about a third of Americans approve of such laws.  Over the same period, federal prosecutions of marijuana cases likewise collapsed — dropping by over 86%.  We think that this was not a coincidence.  As with abortions, most of the possible prosecutions for marijuana possession simply became extremely unpopular.  Perhaps understanding this, prosecutors chose to devote their resources elsewhere, rather than risk losing factually solid cases because of the jury’s hostility to the law itself....

Nullification cannot and will not fix everything.  Nullification itself comes at the end of the criminal process.  The stress, anxiety, and fear of the criminal process can be overwhelming for defendants, and the consequences of being investigated and prosecuted — such as stigmatization and financial stress — can be devastating.  Nullification cannot directly alleviate those harms.  Thus, in some instances, prosecutors may bring charges despite the potential for nullification precisely to send a message through the harsh criminal process.  But we think that the equilibrium effect of nullification will be to reduce the number of cases prosecutors bring. And when unpopular cases are brought, nullification can avert the harshest part of the criminal process — the punishment....

Nullification is, at best, a shield against the most outrageous state actions — a way for the community to stand in the way of punishment.  The case of abortion is no different. Yet in this arena, unlike in other areas of criminal law, state lawmakers seem committed to outrageous acts — as evaluated by the standards of ordinary Americans.  Here, then, nullification may make a difference, at least until law moderates to reflect the values of the governed.

I have flagged the passage here discussing declining federal marijuana prosecutions in part because I co-wrote an article last year on this topic, "How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition."   As explained in that article, a sharp decline in marijuana seizures at the southern US border (as states have legalized local grows) likely most directly explains the sharp decline of federal marijuana prosecutions.  Still, the disinclination of federal prosecutors to go after state-legalized marijuana activities — especially during the Trump Administration when many DOJ officials were clearly not so keen on marijuana reform — likely has reflected the reality that more and more citizens may be less and less likely to support using criminal laws to punish "responsible" marijuana activity.

A few prior related posts:

September 11, 2022 at 11:39 AM | Permalink


This is a good test case for whether those favoring nullification are principled or merely partisan. The test is this: Would they be equally enthusiastic for the "right" of nullification if we had a jury of 12 pro-Trump enthusiasts and the prosecution were for a thoroughly proven Jan. 6 trespass? If so, I'd at least give them credit for being principled (although the principle would still be wrong). If not -- if juries are nullifying simply because they agree with the ideology of the defendant -- then they are just a bunch of opportunistic partisans.

Posted by: Bill Otis | Sep 11, 2022 7:41:18 PM

Don't even need 12, Bill. One (per jury) will do.

If this starts happening on a regular basis because jurors disagree with the law, it will quickly get out of control in our polarized culture. You better believe portions of the right will start talking about getting on juries and nullifying to support police officer defendants and the like. And for it to have many of the effects the authors laud, people have to know it is happening or at least have strong reasons to believe it would.

Posted by: Jason | Sep 12, 2022 9:38:32 PM

Jason --

As you correctly imply, we can have partisanship or we can have the neutral and faithful application of law, but we can't have both.

Posted by: Bill Otis | Sep 12, 2022 10:32:22 PM

I’m questioning the word “legal” when discussing jury nullification. Wouldn’t it require lying during voir dire?

Posted by: TarlsQtr | Sep 13, 2022 10:27:07 AM

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