A tenet of criminal law, and more broadly the American justice system, is that an individual may not be tried for an act that was not a crime at the time that he or she committed the alleged offense. The concept of fair notice teaches that it would be fundamentally unfair to be punished for something one had no warning was illegal conduct. The Constitution expressly forbids the passing of ex post facto laws—that is, punishing someone in a retroactive manner—to limit the caprice that might otherwise befall government, if it were left to govern in the arbitrary manner of authoritarian rule. Everyone must know the rules. Everyone must play by the same rules. The rules must apply in the same way to each participant of civilized society. So says the law.
In this way, the Constitution and the concept of fair notice are a wide departure from the type of justice we see doled out in the Book of Genesis. Think of Cain. As far as the biblical record shows, Cain had no idea what was permitted or prohibited conduct. The simplistic conception of fair and equal justice presumably developed by the Babylonians, i.e. “an eye for an eye” or any other civilizational example that followed punishment proportional to the crime (with a balancing for class status, of course), was not known to Cain or Abel. Adam and Eve had already gotten a taste, at the very least, for action and reaction—or more appropriately, for decision and consequence—but we cannot know how much of their own failing they shared with their sons. Admitting and revealing one’s mistakes is not something we’re particularly known for as an intelligent species, even now.
God treated Cain unfairly, according to the American justice system. Cain did not know that murder was a bad thing. Murder hadn’t yet been defined. The Abrahamic people wouldn’t have a rudimentary definition until they received the Ten Commandments. All God told Cain was that he must do what is right, “[b]ut if you do not do what is right, sin is crouching at your door ” Genesis 4:6. This vague directive invites exactly the type of arbitrary and discriminatory decision-making that American law detests. To put it simply, God simply had too much discretionary authority to decide what was right and what the proper punishment would be for committing a wrong. Worse, he was Judge, Jury, and Executioner, a violation of another principle of natural justice: nemo judex in causa sua, or “no one is judge in his own cause.” A sentence to wander through the Earth for eternity seems like a violation of the Eighth Amendment against cruel and unusual punishment.
But I digress.
Fair notice requires one to know that murder is the unlawful killing with malice of another human being. Of course, ignorance is not a valid defense to any crime. This is why I find it curious that, if we are to live in a just and more or less equitable society, people aren’t told, or at the very least given, however brief an overview, what they can and cannot do as members of civilized society. Ignorance is not a valid defense to any crime, but it sure seems to be promoted as preferable to the alternative of an informed society. A “woke” individual sometimes gets too much credit when the knowledge they purport to know is readily available in some university syllabus. Literacy and intellectual curiosity aside, there are some concepts, like fairness, that are readily understandable to the lay people and which would invite healthy discussion as to its meaning and application.
What is fairness, at its most basic level? Fairness presumes equal treatment. No matter your place in society, a billionaire who commits murder should be subject to the same rules, scrutiny, and presumption of innocence as a pauper who commits the same crime. One should not be advantaged by what they can buy, who they can influence, or the knowledge their connections and experience impart to them. Why not? Because then we’d operating under different standards based on disparate lived experiences. The billionaire may be given a lighter sentence because of his contributions to the economy, while the pauper may be given a lengthy sentence to serve as a deterrent for future “unproductive” vagabonds. Fairness presumes an equal playing field.
It would be fair, then—if we are to operate under the assumption that the playing field is equal for everyone—to tell everyone who is summoned for jury duty what jury nullification means. It would be fair if every jury member, in all cases, knew the full extent of their powers as members of the jury.
So you know, jury nullification occurs when members of a jury acquit the defendant, despite evidence, overwhelming or otherwise, that the defendant is guilty. To see how this might play out for any one jury member, find the Dave Chappelle skit where he is testifying as to whether he believes Michael Jackson, Robert Blake, and R. Kelly committed the crimes they were alleged to have committed. Particularly relevant is the R. Kelly section of the skit, because there Chappelle provides some reasons why a jury member might favor acquittal, such as the belief that the justice system, the laws, or their application is not objectively fair. To state it differently, jury nullification is state-sanctioned anarchy. A juror is allowed to act contrary to expectation and contrary to the rules society dictates must be followed.
Chaos is necessary to order. Entropy has its place in scientific formulas. The effect of jury nullification can itself be nullified in two ways, one much easier to accomplish than the next. First, jurisdictions may require only a majority vote, rather than unanimity, to convict. Or, and this would be a larger undertaking, society and the legislature can address the inequalities that a particular juror feels continues to contribute to the inequitable dispensing of justice.
Jury nullification was a problem in the Reconstruction Era, when all white juries acquitted white defendants of lynching black people, or burning black churches, or committing all manner of heinous and obvious crimes against African Americans. It seems a fair inference that those white jurors knew about jury nullification. It is unfair to share knowledge only for the select few, rather than sharing it with all those entitled to know it as well. All jury trials are fundamentally unfair if one set of jurors knows about jury nullification, while the other set feels they must convict because that is what they are told they must do, and have no intimation that they, in fact, may not do what they’re told. The playing field is simply not equal because all are not playing with the same cards—but this is exactly what justice and fairness seek to accomplish.
If it is preferable for society that juries not act in a capricious manner, the obvious question is, preferable for which members of society, or which facet of society? The follow-up question then becomes, Why is this part of society more worthy of protection than the equal dispensation of justice? It seems a mistake to punish the defendant who, in fact, does not have the strongest defense and presumption of innocence to which he or she is entitled to, since part of that defense includes potential acquittal by the jury. If the effect of jury nullification is undesirable, keeping it secret contributes to the very inequality a juror feels pervades through society. Which, then, is the more perverse outcome?