Jurors should nullify forced birth laws
The history of jury nullification and how it can be used as a powerful tool in a post-Roe America.
In 1972, Dr. Henry Morgentaler defied Quebec’s anti-abortion laws by announcing that he had successfully performed more than 5,000 abortions in a number of illegal abortion clinics across the country. He was duly prosecuted, and there was no question he was in violation of the law.
But a jury refused to convict. The government tried him again, and that jury refused to convict, too. So did a third.
And that was the end of abortion prosecutions in Quebec, 12 years before Canada codified abortion rights. The law was on the books, but juries wouldn’t convict; it was unenforceable. As jurist and bioethicist Florence Ashley wrote on Twitter, forced birth ended in Quebec “[n]ot by legislation. Not by judicial fiat. But by a population that refused to recognize the legitimacy of an unjust law.”
When a juror decides that a law is unjust and therefore refuses to enforce it, it’s known as jury nullification. Jury nullification isn’t limited to Canada; it has a long, if somewhat checkered, history in the United States as well. And there’s good reason to believe that jurors of conscience can do a great deal to protect abortion rights here, as they did in Canada. They just need to know that they have the power to do so.
A brief history of jury nullification in the US
Jury nullification in the US is older than the country. Many colonial juries ignored British law in order to acquit protestors and rebels in the years leading up to the Revolution. John Jay, the first Chief Justice of the Supreme Court, affirmed in a 1794 decision that jurors have the right “to determine the law as well as the fact in controversy.” In other words, if a juror thinks the law is bad law, they don’t have to convict.
Sometimes this juror discretion has gone awry. White juries in the South refused to convict white people of crimes like lynching when their victims were Black. Civil liberties advocate Julian Heicklen argued that the problem here was in jury selection processes that seated all-white juries, not in the principle of jury nullification. But it’s clear that, as with most tools of advocacy and protest, jury nullification can be used for good or for ill.
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The Jim Crow history of nullification is often used as an excuse for opposing it, but the real anti-nullification impetus is probably the usual logic of mass incarceration: Prosecutors and politicians hate anything that interferes with their ability to pile more and more bodies behind bars.
In any case, there’s been a definite effort in recent years to make jurors think that jury nullification is morally wrong or even illegal — or to keep knowledge of it from them altogether. Jordan Paul, a public interest attorney writing at ballsandstrikes.org, notes that in the 1895 case Sparf and Hansen v. United States, the Supreme Court stated that judges did not need to instruct the jury that nullification was a possibility. Building on that, since the 70s, Paul says:
At various points, appeals court judges have ruled that a judge can prevent a defense attorney from even mentioning nullification to the jury; that judges have an affirmative duty to prevent nullification, and can remove potential jurors who indicate that they intend to nullify; that a judge can give instructions strongly hinting that juries don’t have the power to nullify; and even that a judge can tell a juror who asks about their nullification powers that “there is no such thing as valid jury nullification” without having to face meaningful consequences.
Even if judges are dead set against nullification, it’s virtually impossible to stop a juror who is set for it. Jurors aren’t interrogated under oath about their reasons for a verdict. They usually don’t have to supply reasons at all. If a juror decides that they think a law against abortion is unjust and they’re not going to vote to convict, there’s nothing a judge or a prosecutor or anyone can do to force them to rule on the facts rather than the law. An individual juror can force a hung jury, or convince the entire jury to protest the law and free the defendant.
One recent case affirmed the principle of nullification and the right of people to inform juries about nullification. In 2015, Eric Patrick Brandt and Mark Iannicelli stood outside a Denver courthouse and handed pamphlets about nullification to prospective jurors. The pamphlets included information such as “Juror nullification is your right to refuse to enforce bad laws and bad prosecutions.”
This information was all true, but the state charged them with seven counts of jury tampering under Colorado law. The court ruled in favor of Brandt and Iannicelli, and found that the prosecution had violated their First Amendment rights. It is illegal to try to influence juries in a specific case, but informing jurors that they have the right to nullify a law in accord with their conscience is, of course, protected speech.
In fact, you could argue that the First Amendment was designed for just such a case as this, in which individuals are informing people of their legal right to resist and protest government overreach. If the court had ruled against Brandt and Iannicelli, this article itself, or any discussion of jury nullification, might be subject to prosecution by any government body that didn’t like it.
Juries have already effectively nullified unpopular cannabis laws
There’s reason to think jury nullification has had a powerful effect on at least one set of prosecutions in recent years: Juries have probably effectively nullified a range of cannabis laws, according to a forthcoming paper in the Duke Law Journal by Peter Salib and Guha Krishamurthi.
Salib and Krishamurthi note that it’s difficult to track jury nullification since, again, jurors don’t have to explain the reasons for their decisions. But there’s strong circumstantial evidence that jurors stopped being willing to convict for cannabis violations, and that, consequently, prosecutors lost confidence in cases that might seem unjust to juries.
In 1999, about a third of Americans said that marijuana should be legal, according to Pew. By 2019, the number had doubled to two-thirds. In the same period, Salib and Krishamurthi point out, federal drug prosecutions for cannabis cratered, falling by 86 percent.
Other prosecutions did not fall anywhere near as steeply over the same period. One compelling explanation of the data, and the one law professors Salib and Krishnamurthi suggest, is that the massive public shift against marijuana laws led many jurors to resist convicting defendants for cannabis crimes. Prosecutors don’t like bringing cases if they think they’re going to lose them. So they stopped charging these crimes.
Salib and Krishamurthi suggest that jury nullification could also make it difficult to prosecute under state abortion laws, and for the same reason: Many of these abortion laws are extremely unpopular.
Americans oppose draconian abortion bans
In an NPR/PBS News Hour/Marist poll shortly after the Dobbs decision, 56 percent said the court had made the wrong decision; 45 percent strongly opposed it. Women opposed it 59 percent to 38 percent; independents opposed it 53 percent to 41 percent.
Some of the specific abortion laws now in effect or being considered have even less support. Fifteen states, including Alabama, Missouri, Tennessee, South Dakota, Texas, Michigan, and Arkansas, have or are working on putting in place abortion bans with no exceptions for rape or incest.
These laws are wildly unpopular. Fully 69 percent percent of those surveyed in a recent Pew poll said abortions should be legal in cases of rape. That included 56 percent of Republicans. Another 19 percent of Republicans said it would depend on the circumstance. Only 23 percent — less than a quarter — of Republicans, the party of forced birth, supported an abortion law with no exception in all circumstances for cases of rape. It doesn’t help that Republicans sound like monsters when they publicly defend these inhumane policies.
Laws without an exception for the mother’s life and health were even less popular. 73 percent of respondents believed abortions should be legal in cases where the mother’s life was threatened. That included 62 percent of Republicans. Only 16 percent of Republicans support abortion laws without exceptions for cases in which the mother’s life is threatened.
These numbers indicate that even in very red states, many jurors are going to be very uncomfortable convicting pregnant people or abortion providers under these draconian laws. In purple states like Texas and Michigan, most juries are going to include multiple people who think prosecuting people for seeking or receiving abortion care is wrong.
Salib and Krishamurthi point out that the effect of nullification is limited. An abortion clinic generally provides services for many people over time. Law enforcement can harass doctors and providers over and over again, and even if a jury nullifies some convictions, prosecutors are likely to get lucky eventually. And hospital lawyers are risk averse — they aren’t going to sign off on procedures in the hope that random jurors won’t convict their doctors and providers.
The power of juries only goes so far
Juror nullification can’t return us to a pre-Dobbs world, but it can help some people. And especially if nullification starts to become widespread, it can discourage prosecutors and politicians from testing and expanding their authority to torment and torture pregnant people and their doctors.
Our current paralyzed political landscape can make us feel powerless and hopeless. Democratic leaders urge us to vote. But we can’t vote out Supreme Court justices, and the electoral map is so tilted towards rural white voters that even when we vote in large numbers, we often lose. Activists urge us to protest. But even when people turn out in the streets, change at the local and national level is sluggish.
If you’re on a jury, though, you have unilateral, absolute power to follow your conscience and nullify the dictats of Sam Alito, Greg Abbott, and every Republican legislator everywhere in the country. If you are ever on a jury trying an abortion provider or a pregnant person, refuse to convict. Encourage others to refuse to convict. Forced birth laws are cruel, unjust, misogynist, and evil. Nullify them.
That’s it for today
Aaron is on a mini vacation this week but will be back with more Friday.