Collaborative Nullification: Bending or Ignoring the Law to Free the Over-Punished

The United States accounts for about 25% of the world’s prisoners but only about 5% of its population. It has the fifth- highest imprisonment rate—higher than China and Russia—with people of color disproportionately impacted. This racialized mass incarceration, and the lack of political will to meaningfully address it, demands bold remedies. Certainly, sentencing reform for low-level, non-violent offenders is needed, but contrary to popular belief, these offenders are not driving mass incarceration. Instead, the problem largely results from increasingly long sentences for violent offenders. This article proposes that the option, which I call “collaborative nullification,” can provide the over-punished needed relief, thereby diminishing our carceral state. Part I explores how previous authors have treated the separate but related concepts of prosecutorial nullification and judicial nullification. Drawing from my former work as an attorney with the Ohio Justice & Policy Center’s Beyond Guilt Project, Part II demonstrates how my real-world efforts at collaborative nullification succeeded and failed. Part III addresses the ethical issues my proposal raises and discusses how my collaborative model fits into our adversarial system. Finally, Part IV completes the story and shows that the pursuit of collaborative nullification can pay dividends even when it fails.