Will South Dakota Free the Jury?

Dennis Fox

September 2002

Voters in South Dakota have a chance to strike a blow for freedom and restore some common sense to the rigid rule of law. If they vote for Amendment A on the November ballot, political activists who break the law to make a point and individuals accused of victimless crimes would be allowed to tell jurors that their technical guilt does not merit punishment.

If defenders of the status quo have their way, though, South Dakotans will vote down the proposed constitutional amendment. Let's root for common sense.

Most Americans don't realize that every criminal jury already has the power to find a defendant not guilty even if the evidence points to guilt -- to "nullify the law" in legal parlance. Why don't they realize this? Because judges routinely refuse to let defense lawyers tell jurors this basic fact. Indeed, judges typically ask potential jurors if they agree to follow instructions and make a decision "based on the evidence," unswayed by "sympathy" or "sentiments." Any knowledgeable smart-ass who says "I understand that jurors can make up their own minds to acquit regardless of the evidence" will be thrown out of the room long before the first witness is called to the stand. No need to confuse the jury with the truth.

Why might jurors want to acquit someone who's clearly guilty?

Bob Newland, the South Dakota Libertarian Party's candidate for attorney general, and other Amendment A advocates in Common Sense Justice for South Dakota give several examples: parents convicted of child pornography for taking bathtub photos of their toddlers; a man convicted of cruelty to animals for fighting off a vicious dog with a cane; a quadriplegic convicted of marijuana possession for toking to relieve post-surgery muscle spasms. Amendment A would force judges to let defendants like these tell the jury something like this: "I did it, but you're allowed to go with your gut regardless of legal technicalities. You don't have to send me to prison. You can let me go home."

Apoplectic opponents of the proposed amendment warn against chaos in the courtroom. And, undeniably, jurors have not always used wisely their power to apply the law flexibly. In past decades, juries have sometimes freed white supremacists who lynched African Americans, men who beat their wives, and others whose aggression was too widely supported.

Yet those sorry examples have receded in time. On balance, the benefits of jurors understanding their actual power far outweigh the risks. Thus, the Fully Informed Jury Association has for years attracted members whose abstract concern for the jury's right to nullify is but one tool in their efforts to eliminate punishments for marijuana use, consensual adult-sex offenses, hunting and fishing violations, and other victimless crimes tolerated or even committed by large portions of the population.

Political activists charged with trespassing and other violations incidental to their political agenda also hope jurors realize that motives for political action are relevant despite judicial lies to the contrary. Historically, this political use has been the most controversial, from John Peter Zenger's libel case in Colonial New York to modern trials of anti-war and anti-globalization protestors.

Support for an informed jury is also generated from sadder cases. In mercy-killing trials, for example, jurors often find the defendant guilty but leave the courtroom crying, dismayed that they've sent an elderly defendant to prison for ending a spouse's misery. Jurors who know they can acquit despite the evidence find it easier to resist a prosecutor's demand for conviction.

Despite efforts to emasculate the jury's democratic power over the past two centuries, legal precedents make it clear that jurors have the power to nullify -- there's no punishment for jurors who acquit despite the evidence, and no appeal of their decision. So you'd think telling them the truth wouldn't be such a big deal. Yet FIJA members have been arrested on courthouse steps for handing out leaflets telling jurors they can make up their own minds. They're typically released later, though: It's not yet illegal to tell people the truth.

According to Common Sense Justice, the South Dakota amendment would let criminal defendants provide that information in court. They could argue that the applicable law is flawed, that it's being misapplied in the specific case, or that the sentence is too harsh for the harm done.

That jurors can sit in a room together and figure out what makes sense seems to some people a dangerous notion. But although judges may not like it, jurors can, and sometimes do, temper the harsh demands of law by acting as the "conscience of the community" and fulfilling their function as the final bulwark against state tyranny. Without the power to nullify, much of the jury's democratic function would be lost.

Will the 34,000 South Dakotans who signed petitions to place Amendment A on the ballot persuade enough of their peers to tell jurors they can think for themselves?

Although similar efforts have failed in other states, amendment backers are cautiously optimistic. The federal government is embracing ever more draconian measures in a punitive war on victimless drug crimes. More people then ever are aware of innocent citizens caught unfairly in Kafkaesque legal traps. Unease is growing about secret trials and other efforts to clamp down on individual rights. Under circumstances like these, making sure jurors know they can just say no doesn't seem like such a far-fetched idea.

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