The concept of jury nullification goes back to the Gospel of John, where the Pharisees brought a woman charged with adultery before Jesus Christ. Adultery was punishable by stoning under the law, and the woman was guilty. Therefore, under the law, she should have been stoned to death. However, Jesus confronted the mob, stating, “He that is without sin among you, let him cast the first stone at her.”
Thus, Jesus nullified the jury by forcing the mob to balance its own human frailty against the utter absurdity and cruelty of the punishment imposed by the law. Over the years, from the seventeenth century in England to the present day in the United States, jury nullification has gone through many permutations. The essence of it, though, is that justice demands that you walk a mile in the defendant’s moccasins before you judge him or her and mete out punishment. The Golden Rule, right: “Do unto others as you would have them do unto you.”
Today, however, with the exception of death penalty cases, the jury never knows about the defendant’s humanizing factors or the irrationally harsh penalties the law inflicts upon people. Take a moment to consider that many people spent decades in prison over marijuana possession, and just imagine what has happened in this country and others in the past, as well as right now: the death penalty, for example, has been applied, and is applied, to Jews, Muslims, blacks, gays, etc., simply because of their status.
The argument is that an understanding of facts that would engender sympathy would be unfair to the prosecution. In fact, jurors are told that they must not pass judgment based upon sympathy for, or prejudice against, either the defendant or the prosecution. After all, a passionate mob is unlikely to follow law or reason. It makes sense on a superficial level, but only if applied equally to both sides; and therein lies the rub.
Presumptively innocent criminal defendants are institutionally dehumanized. In Contra Costa County, for example, they are frequently marched right through jury assembly rooms in belly chains and shackles, “perp walked,” as it were, made to look like criminals, before the jurors who will determine their fates. Some judges even prevent defense counsel from referring to their clients by their first names, as though that would somehow unfairly tip the balance; yet these same judges give the the prosecution carte blanche to disparage the defendant based upon his nicknames, who he associates with, his familial relations, the songs he listens to, his haircut, his personal pictures, etc.
In other words, jury nullification is alive and well, in the hands of the prosecution, the courts, and the legislature. They dehumanize defendants in the eyes of the jury so that the jury will not follow the law. Where it once furthered justice, jury nullification now impedes it. In today’s courts, many judges and prosecutors engage in jury nullification by arousing hatred toward defendants so that the jury will convict on less than proof beyond a reasonable doubt. Every defense lawyer must recognize this perversion and combat it in every case.
Prosecutors do this for obvious reasons. The courts and legislature in the United States, and in other countries, however, enact and impose laws for the public good but also for more insidious reasons: to ensure the status quo, which favors themselves and their constituents, often to the detriment of the poor. Countries like Norway have demonstrated that crime is a social problem; and they have largely eradicated it. However, those countries understand that public interest is self-interest; whereas we are stuck in a zero sum game.