Is a Law Unjust? One State May Allow Juries to Decide

VERMILLION, S.D. —  Bob Newland calls them his “horror stories,” and they are coming in by the dozen -- unconfirmed, one-sided, passionate.

A quadriplegic writes of his conviction on drug charges for smoking a marijuana cigarette -- the only relief, he says, for his violent tremors. A teenager writes of her conviction on assault charges for standing up to local bullies. A mother writes of her son’s two-year prison sentence for violating a restraining order by putting a rose and a teddy bear in his former girlfriend’s car.

To Newland, a Libertarian activist, such stories prove that America has become a police state -- prosecuting without reason, punishing without mercy.

His radical proposal to restore balance: Let juries determine not just guilt or innocence, but whether the laws of the land are fair, and whether those laws should apply to any given defendant on any given day.

South Dakotans will vote Tuesday on a measure that would enshrine those reforms in the state Constitution. The initiative could upend the state’s legal system -- and stir similar revolts around the nation.

Newland, a long-shot candidate for attorney general, is the prime force behind the measure. But the concept, broadly known as “jury nullification,” has attracted an eclectic bunch of backers -- among them, folks infuriated by tough drug laws, gun laws, tax laws, motorcycle helmet laws, even traffic laws.

“The laws have to be applied in context. That’s the issue. That’s the principle that lawyers have forgotten about,” said Jorge Vicuna, 52, a farm manager in Huron who believes he was wrongly convicted under animal abuse statutes for trying to fend off a chained dog with a hockey stick.

The text of Amendment A sounds mild enough. If it passes, defendants in criminal cases would have the right “to argue the merits, validity and applicability of the law, including the sentencing laws.”

In practice, that means a drunk driver would be allowed to tell a jury: Yes, I drove while intoxicated. But state law setting a 0.08% blood-alcohol content limit is unfair. The federal government forced that standard down our lawmakers’ throats. And in any case, it shouldn’t apply to me, because though I was legally drunk, I drove safely.

Antiabortion activists could argue that the laws against threatening clinics are invalid because it’s everybody’s moral duty to prevent abortions. Pot smokers could press for acquittal on the grounds that sentences for drug possession are too harsh. A batterer could claim that domestic violence laws should not apply because the spouse was asking for trouble.

In short, it would allow a defendant to argue that, although he broke the law, he does not deserve to be prosecuted. “You should be allowed to tell a jury: ‘Yes, I committed these actions, but ... this is a stupid law,’ ” Newland said.

Opponents -- including virtually all the state’s legal establishment -- contend that Amendment A will make a mockery of due process, equal protection and democracy itself.

It’s dangerous, they argue, to allow 12 randomly selected citizens to nullify laws that elected officials have enacted. They warn of courtrooms turning into “popularity contests,” where sympathetic defendants get off because they convince jurors that the rules should not apply to them.

They point out too that because prosecutors cannot appeal acquittals, there is no mechanism for reviewing or overturning verdicts based on sentiment rather than law.

“It will become a lawless society,” said Mike Moore, a prosecutor in Huron.

“Anytime a law is not going to be applied across the board, that’s frightening,” said Jeff Larson, a public defender in Sioux Falls.

The California Supreme Court made just such an argument last year in rejecting the principle of jury nullification. The court unanimously held that a juror who said he could not convict as a matter of conscience -- he disagreed with the statutory rape law at issue in the case -- should be removed from the panel. The U.S. Supreme Court also has discouraged nullification, as have judges in state courts nationwide.

In South Dakota, it’s hard to gauge voter support for Amendment A, as there has been no statewide polling on the issue.

To get it on the ballot, proponents collected 34,000 signatures, representing about 8% of the registered voters in this sparsely populated state. They have been handing out balloons and brochures at fairs, festivals and forums across South Dakota.

They also launched a contest for the “best courtroom horror story,” promising more than $4,000 in prizes. Newland said he has received at least 80 entries so far -- and while all the contestants support his proposed reforms, not all will be able to vote for Amendment A. A number sent in their stories from the state penitentiary.

Opponents, meanwhile, have been afraid to do much public campaigning. Lawyers have debated the amendment at forums across the state -- including one here last week at the University of South Dakota law school. They worry that advertising might backfire. Voters tend to be suspicious of attorneys -- so they might reason that if the state bar opposes Amendment A, it must be good.

“There’s a tremendous amount of fear in the legal community,” Larson said.

Amendment A represents a new tactic in the long history of jury nullification drives.

For the last 13 years, a group called the Fully Informed Jury Assn. has been peddling the concept to politicians, lobbying for legislation in Oklahoma, Arizona, Montana and elsewhere. That hasn’t worked. So the group’s founder, Larry Dodge, decided to go directly to the voters. Newland agreed to sponsor the fight in South Dakota, and the two raised $100,000 to get the issue on the ballot. If it works, both men are eager to try the approach elsewhere.

“This is the key to getting control of the government back in the hands of the citizens,” said Dodge, a photographer.

Both sides in the campaign agree that juries do sometimes ignore the law -- and will continue to do so with or without Amendment A.

A famous case of jury nullification took place nearly 270 years ago, when publisher John Peter Zenger was accused of printing “seditious libel” against the colonial governor of New York. His newspaper articles were, in fact, seditious by the standards of the time -- but they were accurate, and a jury acquitted Zenger, helping establish the principle of a free press.

In the mid-19th century, Northern juries often refused to convict men and women who harbored runaway slaves. Later, Southern juries sometimes refused to convict those who lynched blacks or prevented them from voting.

More recently, former federal prosecutor Paul Butler noticed that jurors in Washington, D.C. -- most of them black -- were refusing to convict black defendants on minor drug charges, even when the evidence was overwhelming. The experience pushed him to study nullification -- and he now supports initiatives such as Amendment A.

“If 12 citizens are saying that a certain law is being unfairly applied, then I trust that judgment,” said Butler, now a law professor at George Washington University. “This is why juries were established. We wanted human beings to bring their judgment to these situations.”

Andrew Liepold, a law professor at the University of Illinois, disagrees. He has studied jury nullification too. His conclusion: Just because jurors sometimes ignore the law does not mean they should be encouraged to do so.

“Trials aren’t designed to make policy judgments,” he said.

Folks who don’t like a law, he added, should work through the political process to change it.

That’s not good enough for Jason Koistinen, 23, a first-year law student at the University of South Dakota. “It takes too long,” he said, declaring his intention to vote for Amendment A. “Also, a lot of the legislators are old and conservative. They don’t necessarily reflect the views of the voters.”

Both sides in the debate agree on one point: With or without Amendment A, justice is at times arbitrary -- and at times, elusive. The question is whether the measure will make the system work better or worse.

“People get wrongly convicted based on false identifications, on dishonest testimony, on incomplete evidence,” said Mike Butler, an attorney in Sioux Falls. “This amendment does not do anything to correct those injustices.”