Why Is Everyone Talking About Jury Nullification in the Fight for Abortion?

Now that Roe v. Wade and Planned Parenthood v. Casey have been overturned by six unelected religious zealots in wizard robes, there’s a lot of fear over the current and possible future state of abortion care. That fear is not misplaced; this is a scary time. Many states already have “trigger laws” taking effect that ban getting, performing, or “aiding and abetting” (a deliberately vague concept) an abortion, and even more are being introduced every day. Some of the bans focus on civil charges and hefty fines, while others threaten decades-long prison sentences.

There’s no doubt that we’re about to enter an era of unhinged legal battles over abortion, and that can leave a lot of people feeling really helpless. After all, once things have reached this state, what can we do? Well, one interesting idea was getting a lot of attention on Twitter this weekend: jury nullification.

What jury nullification means

Basically, jury nullification is when a jury returns a not guilty verdict, even if they believe the defendent has committed the crime in question. It can be a way for the jury to say that while they don’t doubt the defendant committed that offense, they don’t believe the law should be enforceable, or at least not in the way prosecutors have brought before the court. The law, then, is essentially nullified in that case—and potentially beyond, if it becomes common enough.

One prominent example came in 2010, with the trial of Touray Cornell, a Montana man a Missoula, Montana man charged with possession of 1/16th of an ounce of marijuana. His county had passed a citizen initiative making marijuana offenses the lowest possible priority for law enforcement. (Something a number of cities, counties, and states’ attorneys general have already said will be the case with abortion-related offenses.)

The Fully Informed Jury Association [FIJA] writes:

Of 27 potential jurors questioned during voir dire, only five said they would vote to convict a person of possession of such a small amount of marijuana. Skeptical that it would even be possible to seat a jury, the judge in the case called a recess during which time the lawyers worked out a deal known as an “Alford plea” in which the defendant didn’t admit guilt.

This didn’t even get to the point of jury nullification because a jury that wouldn’t go that route in the end couldn’t be found even before trial.

Is jury nullification legal?

Emphatically, yes! If you find yourself on a jury in a case that you believe is immoral, you are within your rights to refuse to convict the person on trial. (A judge, however, is under no obligation to inform the jury of that right.) It’s also important to note that a juror cannot be punished for their verdict.

Jurors: if a prosecutor asks you to make a felon out of a woman seeking an abortion or someone who helps her to get one, or a mother trying to help her child get affirming care, stand up and say no. These laws may exist, but you do not have to enforce them. You have the power.

— Lara Bazelon (@larabazelon) July 9, 2022

In Cornell’s case, no one even made it onto a jury because everyone was honest up front and said they would not convict him of such a low-level offenses. Of course, it is possible, instead of stating that up front, for a person to try to get on a jury to basically bring it down from the inside. That is technically perjury, and a felony, so I would never endorse doing that here. I would possibly point out, though, that even in the case of Cornell’s jury selection, plenty of people and media outlets clutched their pearls and accused those potential jurors of having done something offensive. “A mutiny,” one attorney called it. The judge called the jury pool “militant” and “hardliner” pot advocates. So, if these jurors are going to be vilified either way, well …

Be like Paddington pic.twitter.com/Bh4vfo4tiH

— lil pom poko jerk (@rajandelman) July 10, 2022

Examples of jury nullification

Cornell’s case is a relatively recent one in the long history of jury nullification. The tactic was famously used during cases related to the Fugitive Slave Act, where northern juries refused to find defendants guilty of aiding the escape of enslaved people. “In refusing to convict for violating an immoral law, these juries […] found they had the innate power to declare that even though a defendant had violated the law, she should not be punished when the law itself violated a deeper principle of justice,” David Hall wrote in a 2020 paper for the University of Tennessee.

Jury nullification also became popular again during Prohibition—and it made a huge difference. According to the Washington Post, “As many as 60 percent of juries refused to enforce the Volstead Act, leading to the end of Prohibition.”

That wasn’t the only time mass nullification had an effect of policy. “Jury nullification led to recognition of battered spouse syndrome, and jury refusal to convict Vietnam War protesters helped bend public policy against that war,” writes the Post. “When these kinds of rejections of enforcement of laws stack up over time, the laws become unenforceable,” the FIJA explains. “Eventually, it is no longer worth the time or hassle or embarrassment for government officials to try to enforce these laws. They may be further nullified in a sense either remaining on the books but not being enforced or being repealed altogether.”

Too many jurors think they are in the box for one purpose: to convict. Especially if the facts match up with a law, however horrible the law is or how unfairly it is applied. But that’s not true. Jurors have all the power. They just need to exercise it by saying no.

— Lara Bazelon (@larabazelon) July 9, 2022

Of course, there is a darker side of jury nullification. This country has a long history of white juries refusing to convict their peers for lynching and other racist crimes they undoubtedly believed the defendants had committed. That is in no way a reason to advocate against nullification; it’s just part of the history that shouldn’t be ignored.

There’s also an argument that one of the biggest problems with nullification is its inherently selective application, and how that highlights huge gaps in criminal justice advocacy.

I agree wholeheartedly with people who are sharing information about jury nullification. I recognize that Roe v. Wade’s overturn has brought it into the discussion, but I would also encourage people to think about just how much we criminalize in the United States

— Alex Peter (@LolOverruled) July 10, 2022

“If we’re going to have a conversation about things like the Fugitive Slave Act and jury nullification in reference to it, we should also talk about the prison industrial complex and its direct descendance from slavery and the Jim Crow era,” writes Twitter and TikTok legal superstar Alex Peter. “We should recognize the system that exists in the US prosecutes crimes largely along lines of class and race. It is does not have a moral or ethical underpinning. Frankly we should be using jury nullification a whole lot more than we do.”

(featured image: Kevin Dietsch/Getty Images)