Nullifying Dobbs

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Taniel
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Jury nulllification in the post-Dobbs world is a critical tool, and this fascinating essay makes the case that the very possibility of nullifications being in the air could force other actors to adjust their actions.

inquest.org
Nullifying Dobbs | Peter Salib & Guha Krishnamurthi | INQUEST
Jurors’ conscientious refusal to convict people charged for violating abortion bans is perfectly legal — and what justice demands.
9:47 AM · Sep 8, 2022

https://inquest.org/nullifying-dobbs/

The state of play for abortion rights should be well known by now. The Supreme Court of the United States has overruled Roe v. Wade, ending any recognition of a constitutional right to terminate a pregnancy. Several Republican-led states prepared in advance for this outcome, passing “trigger laws” that would make abortion illegal upon Roe’s demise. Other states have acted quickly since the court’s decision, making abortion a criminal offense. Others will follow soon. Many of these laws are draconian: Some ban abortion very early in pregnancy — sometimes from the outset. Some lack exceptions for rape, for incest, or for serious danger to the mother. The laws are also unpopular, as the politics of abortion are beginning to show. In recent weeks, reliably red Kansas voted in double digits against amending its state constitution to allow criminal bans on abortion.

Under conditions like these, we have recently argued, a legal avenue called jury nullification, also known as conscientious acquittals, may have a role to play in securing reproductive rights. Nullification occurs when a legal decisionmaker refuses to convict a defendant, despite factual evidence of the defendant’s guilt. The most common version is jury nullification, wherein at least some jurors take this approach. Consider a recent, real-life example: In 2019, federal authorities in Arizona prosecuted Scott Warren, a humanitarian aid worker, under a law forbidding the “harboring” of border-crossing migrants in the Arizona desert. There was no serious dispute that Warren had done exactly that — by sheltering and providing them with water. Yet the jury acquitted, presumably after coming to the conclusion that Warren’s actions, though illegal, were not unjust or deserving of punishment.

Most scholars regard jury nullification as a rare phenomenon in that it seldom happens. The law imposes barriers against it. Courts often forbid lawyers to inform jurors of their ability to nullify. They instruct jurors that their duty is to follow the law, regardless of their own moral commitments. And if a juror indicates that they plan to nullify, that juror is usually dismissed from service. Moreover, jurors might not want to nullify in many cases, even if they knew they could. Despite growing interest in criminal reform, most criminal prohibitions — and criminal penalties — remain quite popular. Nearly all drug prohibitions, for example, enjoy supermajority support.

Yet in prosecutions brought under this harsh new crop of abortion laws, we think nullification may have a larger role to play. Consider first that nullification only requires one juror to hold out. Criminal convictions must be unanimous, as the Supreme Court recently held in Ramos v. Louisiana. Thus, if even a single juror refuses to convict because they believe the law — as applied in the case before them — is unjust, nullification has occurred.

*snip*

[alwaysinasnit]

1. The thing I'm afraid of is, if this catches on and if the orange menace is ever brought to trial

on criminal charges, all it will require is for just 1 juror to hold out.

[ck4829]

2. K&R, women and doctors need to be protected from witch burning era-inspired laws