Americans worried about the status of reproductive rights earned a breather last week when voters amended several state constitutions to protect access to abortion and turned away ballot proposals to criminalize the practice. In the wake of the U.S. Supreme Court's decision overturning federal protections for abortion access, those are incremental wins for pro-choicers. But the matter remains unresolved elsewhere. Among the tactics pro-choice advocates could adopt is one popular among champions of other controversial liberties: jury nullification.
In recent years, jury nullification, the judge-aggravating power of juries to bring "not guilty" verdicts even in defiance of the law, has been invoked in cases involving drugs, guns, political protest, and prosecutorial overreach. It was a common practice among jurors who disapproved of Prohibition. But it's best known for its antebellum use by abolitionist juries enraged by efforts under the Fugitive Slave Act to recapture people escaping bondage and fleeing to hoped-for freedom in northern states. That example is invoked by scholars who see the tactic as a promising shield for reproductive rights.
"Those fighting against the increased criminalization of abortion should seek inspiration from how abolitionists responded to the Fugitive Slave Act by not only waging a fearsome political battle to contest the legislation, but also by leveraging the power available to criminal juries—most notably juror nullification—to abrogate the power of unjust laws," Wesleyan University's Sonali Chakravarti, a professor of government, wrote last month in Boston Review. "Should heath care workers be charged under anti-abortion statutes such as the ones in Idaho and Texas, jurors should know that, alongside their oath to render a 'a true verdict according to the law and the evidence,' they always retain the power to issue a not guilty verdict."
Referencing the use of jury nullification to hobble the enforcement of other laws, Chakravarti added "a jury trial may reveal the boundaries of jurors' willingness to punish medical professionals for assisting with an abortion, even in states that have passed strong anti-abortion legislation."
Chakravarti isn't alone in her argument. In September, law professors Peter N. Salib, of the University of Houston, and Guha Krishnamurthi, of the University of Oklahoma, also suggested that "jury nullification, also known as conscientious acquittals, may have a role to play in securing reproductive rights."
Writing in Inquest, a publication devoted to reducing mass incarceration, they emphasized that jury nullification has effects beyond the specific cases in which jurors refuse to bring "guilty" verdicts.
"The possibility of nullification here is serious enough that it might in fact be exactly that—the possibility, not actual nullifications—that matters most. Prosecutors want to win their cases, and they adjust their strategies accordingly."
"Thus, we expect the effect of nullification on abortion prosecutions to be twofold," they add. "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."
Salib and Krishnamurthi point to plummeting federal marijuana prosecutions as the result of jury revolts, but there's evidence that the fear of nullification also changes police priorities. Several years ago, asked about evolving non-punitive approaches in the treatment of marijuana-law violators, El Paso, Texas, Police Chief Greg Allen said it's a waste of his officers' time to put hours into an "an arrest that has no end result of a conviction because of jury nullification."
In 2010, a Montana court couldn't even seat a jury after potential jurors said they wouldn't even consider convicting a defendant arrested for marijuana possession and distribution. Juror resistance in the case "is going to be something we're going to have to consider," the prosecutor told The Missoulian.
The federal government's difficulty in obtaining convictions in cases where people are charged with peacefully, but illegally, carrying firearms "may well be the product of jury nullification due to the public's confusion about our gun laws—such as they are, or are not—and the public's strongly held feelings toward guns," United States District Court Judge Frederic Block complained in 2009 (full text here). He referenced a juror in a case he tried "who candidly expressed his unwillingness to convict someone for merely possessing a gun" and cited other cases in which juries obviously ignored the law.
What jurors see as overreaching prosecution of protesters can evoke their sympathy, too. In 2017, a jury in upstate New York acquitted four defendants of charges related to a 2015 protest at the Hancock Field National Guard Base. The four opposed the piloting of Reaper drones from the base for bomb and missile missions that have frequently resulted in civilian deaths.
"Yesterday I spoke with one of the defendants found Not Guilty, and he confirmed that this was, indeed, a case of conscientious acquittal," Kirsten Tynan, executive director of the Fully Informed Jury Association, noted at the time.
"One of the things many people struggle with is that they don't want jurors exercising jury nullification in ways they don't like," FIJA's Tynan told me this week about the wide range of circumstances in which jury power can be used to spare defendants (FIJA advocates for jury power but takes no position on which issues should evoke juror mercy). "But jury nullification should not be dismissed or denigrated because it is not used perfectly in keeping with my, your, or any other particular individual's opinions. The option of voting not guilty based on conscience rather than strictly on the facts is meant to tilt the playing field in favor of erring on the side of liberty."
Abortion is one of many issues in which jurors can exercise their consciences. It's also controversial and many jurors will disagree that it's an appropriate exercise of mercy. But the same can be said of drugs, guns, political protests, and much more. Jurors who win over their colleagues will send defendants home free; those who don't will hang juries and prompt prosecutors to bring only the strongest cases.
"Nullification cannot and will not fix everything," concede Salib and Krishnamurthi. "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."
In this, as with all legal controversies, jury nullification allows an opportunity for regular people to exercise a veto over the power of the state and to spare intended targets from laws they consider unjust.