- The Washington Times - Saturday, October 12, 2002

Someone once said that the best thing to do with bad laws is to enforce them vigorously thus exposing their flaws and speeding their repeal. But South Dakotans are pondering another possibility. On their November ballot is a measure that would try to remedy bad laws by encouraging juries to chuck them out the window.
That may not sound like a bad idea. South Dakota is just one of many states with draconian drug laws that make criminals out of sick people who smoke marijuana to treat their symptoms. Recently a quadriplegic named Matthew Ducheneaux was prosecuted for possession of the drug, which he says he needs to ease muscle spasms. A jury convicted him even though, by his lawyer's account, "All of them conclusively said afterward that they didn't want to find him guilty."
Supporters of Amendment A, as it is known, say his case is exactly the type in which a jury should be free to decide that even if he broke the law, it's a stupid law that deserves to be ignored. They'd like to see this option, known as jury nullification, adopted not only in South Dakota but everywhere.
Advocates could do more to publicize that the measure would let juries effectively suspend not only bad laws but good laws, and not just in rare cases but in common ones. Prosecutors say it could be invoked in up to half of all criminal trials and might offer a refuge not only for those defendants charged with "victimless" offenses like drug use and prostitution but also domestic abuse, drunk driving and statutory rape.
As the puckish legal scholar Herbert Wexler once put it in reference to jury nullification, "What's sauce for the goose depends on whose ox is being gored." If you allow juries to acquit pot-smoking invalids, you have to let them give a pass to husbands who slap the missus around or good old boys who fail roadside sobriety tests. Good laws and bad laws alike can be overridden.
Supporters of jury nullification say the measure would merely tell juries about a right they already have. As Texas attorney Clay Conrad puts it in his book on the subject, withholding this information "is like trying to keep teenagers from finding out about sex: If they do not learn about it from a responsible source, they are likely to learn about it on the streets." Under Amendment A, defendants would be allowed to acknowledge technical guilt while arguing that the law they broke shouldn't be applied to them. And juries could then proceed to toss it aside.
It's true that juries already have the freedom to acquit even if the defendant is indisputably guilty. That verdict is final, and they may not be punished for it. But they also have the option of convicting a defendant whom they know is innocent. The fact that juries may freely abuse their power is no reason to invite them to do so.
This option is supposed to serve as a check on the decisions of police and prosecutors. It would also restrain the power of legislatures, which may pass laws without giving sufficient attention to the damage they may inflict on harmless individuals. The jury, in the view of Amendment A supporters, ought to be free to express the will of the community when exercising its judgment. As Mr. Conrad puts it, the nullification power "exists to prevent oppression by the government, allowing private citizens to veto government overreaching."
But private citizens can already veto government overreaching a process known as elections. We can vote out lawmakers who pass bills that authorize government overreaching. We have elections to assure that the government's laws and policies reflect as accurately as possible the preferences of the people.
There is no reason to think juries are more representative of community sentiment than legislatures. Juries may just as easily reflect minority views. If South Dakotans think medical need should be a defense for marijuana possession, they can demand that the legislature pass a law to that effect.
Juries are an important part of our system of law and justice. But they are also the only part that is totally unaccountable to the people. If legislators vote for bad laws, their constituents can vote them out. Likewise with prosecutors who bring unwarranted indictments. Police answer to their superiors, who answer to elected officials. But juries answer to no one. They can abuse their powers by spurning the will of the people, and the people have no recourse.
For a jury to overrule a law passed by an elected legislature is not a triumph for democracy, as supporters of Amendment A insist. It's the opposite of democracy.

Sign up for Daily Newsletters

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide