Queer Liberation and Jury Nullification

It’s June, and for the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community, that means it’s Pride month. All around the world throughout June, pride parades and pride festivals celebrate our identities, our lives, our culture, our progress in smashing stigmas, and our resistance to oppression.

That last part, resistance, is absolutely crucial. Pride is held in June in commemoration of the Stonewall Riots of 1969. After police raided the Stonewall Inn, a gay bar in New York’s Greenwich Village neighborhood, patrons fought back. At the time, homosexuality and gender non-conformity were overtly criminalized. Police inspected the genitals of bar patrons dressed in feminine attire, and arrested drag queens and cross dressers. The officers also frisked and groped lesbian patrons.

That night, the queer and trans people at the Stonewall Inn did not accept the coercion and abuse they faced from the police. They fought back. Their acts of defiant self-defense against unjust state violence that night sparked the modern gay liberation movement. Every pride festival and pride parade is a celebration of resistance to an unjust criminal justice system.

While queer and trans people are no longer explicitly criminalized under the letter of the law, they still face unjust state violence and criminalization. Officers profile transgender women of color as sex workers and frequently arrest them on charges of solicitation. Queer and trans people who defend themselves from hate crimes, such as CeCe McDonald and the New Jersey Four, are themselves charged with violent crimes and incarcerated. LGBTQ homeless youth find themselves arrested for “quality of life” crimes such as sleeping in public, panhandling, and a variety of other crimes that primarily exist to criminalize the poor.

Once they’re incarcerated, members of the LGBTQ community face outright brutality in prison. A 2007 study found that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent reporting being sexually assaulted.” This same study found that 67% of inmates who identified as LGBTQ reported being sexually assaulted while incarcerated, a rate 15 times more prevalent than that of the general inmate population. Transgender women are often incarcerated alongside male inmates and guards, who rape and abuse them. Supposedly to protect them from this violence, they can be sent to solitary confinement, which is widely recognized as a form of torture.

One tactic that can be used to impede this state violence against queer and trans people is jury nullification. Rather than merely evaluating the evidence to determine whether a defendant has violated a law, jurors can vote “not guilty” when they believe the law is unjust or unjustly applied. Jury nullification is exercising conscience rather than helping the state unjustly cage human beings.

Adrien Leavitt argues in Queering Jury Nullification that the LGBTQ community and our allies should use jury nullification “as a tool to subvert the criminal punishment system in order to fight against structural racism, protest the policing of deviant sexual and gender identities, and reduce the violence perpetrated against queer people by the criminal punishment system.” When queer homeless people are on trial for survival crimes, jurors can vote not guilty. When queer and trans people are charged with homicide for defending themselves from hate crimes, jurors can vote not guilty. When trans women of color are charged with solicitation, jurors can vote not guilty.

Most decisions in the criminal justice system are made by government employees such as police, judges, and prosecutors. They face perverse political incentives that push them to participate in state violence against the most marginalized people in our society. Jurors, on the other hand, are ordinary citizens. Their verdict does not determine whether they are reelected or whether they receive a promotion. The jury is where the people, the rabble, can disrupt the process of state violence.

It’s time for jurors to use their power to disrupt the criminalization of queer and trans people. At pride festivals throughout the world, we commemorate the Stonewall rioters for resisting such criminalization. As long as queer and trans people face criminalization, jurors should stand for queer liberation, with the spirit of Stonewall in their hearts.