In Praise of Quiet Resistance

Flying under the radar is underrated.

Photo by GR Stocks on Unsplash

A prosecutor in Florida announced that he would not prosecute women for having abortions or doctors for providing them. Then Gov. DeSantis promptly removed him.

I appreciate — no, I love — the sentiment of the prosecutor, but he’s no good to anyone if he isn’t in office.

Imagine a different scenario. What if that prosecutor had decided, without any fanfare or announcements, that he would never prosecute an abortion case, but kept this idea to himself? And what if — instead of some grand announcement — each and every time a case was brought to him, he simply declined to prosecute, by claiming there wasn’t enough evidence to secure a conviction?

Let’s say that he got away with this for some time, until someone noticed and asked why he wasn’t prosecuting abortion cases. What if he said something like “I know how important these cases are to the people of Florida, and I need to make sure we can win.” In saying this, the prosecutor pretends that he’s on board to prosecute these cases. In fact, he cares so much about upholding the law criminalizing abortion, he wants to be discerning about which ones he prosecutes, lest he start losing these important cases.

Of course, he’s being dishonest. He acts as if he’s declining to prosecute these cases because he wants to win each and every case, when the opposite is true. He’s flying under the radar.

Who is more powerful? The prosecutor removed by DeSantis, or the fictional one who pretends to go along with this new criminal framework, but throws a monkey wrench into the whole apparatus, grinding it to a halt? I vote for the second one.

Quietly using the tools created by unfair systems to dismantle unfair systems isn’t a new or original idea. Paul Butler, a law professor at Georgetown and commentator, has been talking about this type of power for a long time. He is an advocate of jury nullification, a tool used by jurors who, despite believing that the defendant is guilty of the criminal charge, acquit them anyway. In the 1800s, jury nullification was used during prosecutions under the Fugitive Slave Act, often rendering it meaningless. Butler believes that jury nullification can be used today undermine systemically racist…