Abstract

Excerpted From: David A. Singleton, Collaborative Nullification: Bending or Ignoring the Law to Free the Over-Punished, 78 Ark. L. Rev. 633 (2026) (246 Footnotes) (Full Document)

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 Russia3--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.

Unfortunately, such offenders have few avenues for relief. Executive clemency, rarely exercised, offers little hope, because most governors and parole boards fear the political repercussions of releasing a “violent criminal.” Furthermore, while “[j]udges have great power to shape sentencing” at the front end, many jurisdictions limit their ability to later modify sentences. Only twenty-four states, the District of Columbia, and the federal government have some form of a “second look” statute allowing review of unjust sentences, and most of those jurisdictions limit who is eligible. The inconsistent availability of “second look” relief leads to seemingly arbitrary results.

For example, take William Christian, who was among the individuals charged with and convicted of murder as part of the 1973 Hanafi Muslim Massacre, which resulted in seven deaths, including five children. William received a life sentence, and lost his appeal. In 2021, William sought compassionate release under the COVID-19 Response Supplemental Emergency Act of 2020. Citing his “nearly spotless” disciplinary record, his “advanced age” of seventy-seven, and his “frail physical condition,” the court concluded that he was “very unlikely to commit an act of violence” and released him.

Now consider my client Patricia Wernert. Pat entered the Ohio prison system in 1976. She and her husband hired a man to kill her mother- and grandmother-in-law, and she was sentenced to death. Fortunately, the United States Supreme Court in 1978 held unconstitutional the capital punishment statute under which she was sentenced. As a result, she became eligible for parole after serving twenty years, but despite numerous petitions and an exemplary prison record, the Parole Board would not release her.

Unlike D.C., Ohio has no “second look” mechanism. So, despite their similar circumstances, William was released, while Pat stayed imprisoned.

So, what should attorneys do for clients like Pat when no viable release mechanisms remain: concede defeat and move on, or collaborate with those who are willing to ignore the law and grant release anyway? This article proposes that the second 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 Pat’s story and shows that the pursuit of collaborative nullification can pay dividends even when it fails.

I.
Prosecutorial nullification and judicial nullification have received previous scholarly attention. Most prosecutorial nullification scholarship explores a prosecutor’s declination to bring charges supported by the facts. Scholars are more varied in describing judicial nullification, observing that judges nullify by denying search warrants where probable cause clearly exists; through their findings of fact, which are rarely disturbed on appeal; by providing incomprehensible instructions that juries cannot follow; by imposing lighter sentences if they disagree with the verdict; or on appeal by “deliberately ignor[ing] inconvenient facts and even settled rules of law in order to obtain the desired result.”

Because both judges and prosecutors operate with enormous discretion, one may question what separates a legitimate exercise of that discretion from nullification. The question of legitimacy boils down to whether one adopts a “rule of law” model, which requires “those who exercise government authority to conform strictly to the rules” even if they create and perpetuate injustice, or a “recourse” model, which allows the actor to disregard the law when doing so would better serve his or her interest in remedying injustice. On this point, Professor Stuntz notes that “the story of American criminal law is a story of tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes[.]” The end result of our “pathological” criminal law politics is, to Stuntz, a system where harsh sentences are inevitable, so judges should have broad power to nullify.

Regarding legitimacy, scholars also note the importance of the actor’s state of mind. For example, Professor Fairfax defines “prosecutorial nullification” as “those circumstances in which a prosecutor has sufficient evidence to secure a conviction ... but declines prosecution” because he or she disagrees with the law or believes that applying it in a particular case would be “unwise or unfair.” This would not include a prosecutor’s declination due to genuine concerns about, e.g., the sufficiency of the evidence or “systemic costs.” Regarding judicial nullification, Professor Butler distinguishes between “creative” and “subversive” judges; the former viewing themselves as acting within the law, the latter being well aware that they are not.

I subscribe to the recourse model, so I wholeheartedly endorse nullification where necessary and encourage like-minded attorneys to partner with prosecutors and judges who are willing to ignore the law in compelling cases. As the following cases show, however, the success of collaborative nullification depends on how far the relevant actors are willing to go.

II.
One prominent example of collaborative nullification occurred in United States v. Holloway. There, Holloway received a sentence of nearly sixty years after rejecting a plea offer for no more than twelve. Twenty years later, “[r]ecognizing that there were ... no legal avenues or bases for vacating” Holloway’s sentence, the district judge urged the prosecutor to vacate at least two of his convictions so he could be resentenced more justly, and the prosecutor agreed.

I found Holloway inspirational. So, beginning in 2019, I began exploring new ways to get my clients released. These efforts involved convincing the prosecutor to support release, devising creative workarounds to limits on the court’s authority, and then jointly approaching the court to request my client’s release. The following case studies illustrate both the benefits and the challenges of my collaborative approach.

[ . . . ]

The lessons I learned from Pat, Angelo, and Jerome are three-fold. First, collaborative nullification, as I define it in this article, is possible. This is important because too many of us who represent people who have committed serious offenses view the prosecutor and the judge as unwilling to bend the rules. If this article accomplishes nothing else, I hope it will inspire attorneys to not give up on persuading the prosecutor and the judge to find a remedy where no clear avenue exists.

Second, there is value in counsel attempting to collaborate with unusual allies even where it does not initially yield the desired outcome. Even though Jerome’s judge would not release him until after PISA became law, the relationship Jerome and I formed with the prosecutor and Ms. Jones paid dividends during the commutation hearing. Likewise, while the trial court refused to release Pat, the relationship I formed with the prosecutor helped lead to her release.

Third, these cases have taught me the importance of hope, or more specifically, never abandoning it. Some say we should never give our clients “false hope,” but I disagree. Hope is sometimes all that those serving life sentences have. Without it, there may be no reason to live.

Pat’s case was one of the most challenging I have handled. Unlike Jerome, she had no sympathetic story to tell. Unlike Angelo, she did not have the victim’s family on her side. And other than her orphaned son, who did not oppose release but wanted nothing to do with her, she had no family members remaining. Yet in one of her darkest moments, Pat refused to give up. Our collaboration with the prosecutor, even though it failed to persuade the judge, imbued Pat with the hope she needed to keep going.

Professor of Law, University of the District of Columbia David A. Clarke School of Law; Former Executive Director, Ohio Justice & Policy Center; A.B., Duke University; J.D., Harvard Law School.