Even before the Supreme Court overturned Roe v. Wade in June, it was clear that losing the right to abortion would implicate not only homes and hospitals, but jail cells. In April, a district attorney in Texas charged a woman who had suffered a miscarriage with murder (the case was subsequently dismissed). Twenty-two states had laws–mostly unenforceable at the time–that punished abortion with incarceration ranging from several months to life in prison. Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, many of those laws are now going into effect, along with new ones that state legislatures are racing to enact. Some states are already planning to criminalize out-of-state abortions obtained by their residents. And, where local prosecutors choose not to charge abortion-related offenses, proposed state legislation will empower prosecutors from elsewhere to assume control and prosecute the cases themselves.
While this post-Dobbs wave of criminalization has started with abortion, it will not end there. As underscored by Justice Clarence Thomas’s concurrence (as well as the three justices in dissent), Dobbs’ reasoning invites the court to “reconsider all of this Court’s substantive due process precedents, including Griswold [and] Lawrence,” the cases recognizing a right to contraception and same-sex romantic relationships. If it does, we may soon return to a time when individuals risked jailtime for activities like distributing condoms and having private, consensual sex.
Restoring the rights lost in Dobbs will require massive political mobilization–far more than any one person could possibly achieve. But one person is all it takes to stave off at least some of the most devastating harms of criminalization. A single juror’s vote of “not guilty” can spare a defendant—any potential parent, doctor, friend, or anyone else prosecuted and brought to trial—from criminal conviction. Regardless of the strength of the evidence. Regardless of what the judge believes. Regardless of how many other jurors disagree. It’s every juror’s super-power.
Jury nullification–or the power of jurors to vote to acquit even in the face of overwhelming evidence–is rooted in English common law and has been an American tradition since before the nation’s founding. For instance, in 1735, a journalist and printer named John Peter Zenger was charged with libel for publishing articles critical of New York’s colonial governor. Zenger did not deny publishing the articles. Instead, he argued that they were true. Although “truth” was not a valid defense to libel at the time, he asked the jury to acquit him on that ground nonetheless. They did. Other examples of nullification abound. Juries nullified prosecutions of abolitionists charged under the Fugitive Slave Act and businesspeople charged with alcohol-trafficking during Prohibition.
The courts have consistently upheld jurors’ “undisputed power” to nullify. In 1895, Supreme Court Justice Marshall Harlan ruled in Sparf v. United States, “[Jurors] receive the instructions of the judge; but they are not obliged to follow his instructions.” Twenty-five years later, in Horning v. District of Columbia, the high court again affirmed jurors’ “power to bring in a verdict in the teeth of both law and facts.” In United States v. Dougherty, the D.C. Circuit lauded nullification “as a necessary counter to case hardened judges and arbitrary prosecutors.” The Seventh Circuit agreed, noting, “tacit toleration of jury verdicts of innocence, in apparent contradiction to clear proof of guilt, affords adequate protection to the ‘conscience’ function of the jury.” As criminal prosecutions continue to swell in Dobbs’ wake, jurors’ willingness to exercise their “conscience function” will be as important as ever.
Nullification is not easy. Judges may remove jurors who openly acknowledge that they may not apply the law as instructed. Prosecutors peremptorily strike those whom they believe are likely to acquit. And, even as courts confirm jurors’ power to nullify, they condone judges’ refusal to educate jurors about it. As the D.C. Circuit explained, the fact that the jury retains the power to nullify “does not establish as an imperative that the jury must be informed by the judge of that power.” Instead, the court continued, “the jury must feel … so strongly that it must itself … independently initiate and undertake an act in contravention of the established instructions.” In other words, jurors have the power, but not the right to know about it.
Nor is nullification alone a solution to the widespread, systemic harm caused by criminalization. Jurors can only nullify cases that actually make it to trial. Yet the overwhelming majority of people charged with crimes never see a jury. More than 90 percent of people charged with crimes plead guilty and give up their right to a trial, including many who are demonstrably innocent. Nullification does not undo the trauma of arrest, enmeshed penalties of a pending prosecution, or the months, if not years, spent in pretrial incarceration, isolated from homes, jobs, and families.
And yet, for those who do receive a trial, nullification can prevent the harms of conviction and sentencing. Outright acquittal–and the resultant double jeopardy bar against further prosecution–requires unanimity, but a single juror’s vote of “not guilty” is enough to deadlock the jury and trigger a mistrial. While prosecutors may re-try the case before a new jury, mistrials commonly lead them to make more lenient plea offers or even to dismiss cases entirely. Over time, patterns of mistrials and acquittals can lead prosecutors to stop pursuing certain types of cases, or to make more favorable plea deals to avoid trials they anticipate losing.
Nullification is also ironclad. Unlike civil jury verdicts, which may be overturned, judicial rulings, which may be reversed, or even Supreme Court precedent, which—as Dobbs itself demonstrates—may be overruled, a juror’s vote to acquit is ineffable. It’s the strongest veto power in the American legal system.
In states across the country, Dobbs transformed the constitutionally protected to the criminal, virtually overnight. An increasingly polarized electorate and paralyzed federal government has rendered the prospect of large-scale political change both urgent and distant. In the meantime, jurors should remember that they each have the independent power to cast a vote that cannot be overridden, overruled, or gerrymandered away. When asked to condemn a human being to an inhumane system, they can vote their conscience. They can take direct, consequential, and lawful action. They can simply say, “not guilty.”
