Unfortunately, institutionalizing the power of jury nullification will only permit juries to dispense inconsistent justice on a more frequent basis. South Dakota: A State of Men, And Not Of Laws?

JUDGE (to the jury): Members of the jury, the instructions I gave you at the beginning of the trial and during the trial remain in effect. I now give you some additional instructions. …

It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law even if you thought the law was different or should be different. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. …

In conducting your deliberations and returning your verdict, there are certain rules you must follow. I shall list those rules for you now. …

[I]f the defendant is found guilty, the sentence to be imposed is my responsibility. You may not consider punishment in any way in deciding whether the Government has proved its case beyond a reasonable doubt. …

[Y]our verdict must be based solely on the evidence and on the law which I have given to you in my instructions. … Nothing I have said or done is intended to suggest what your verdict should be — that is entirely for you to decide.

— From the Eighth Circuit’s Model Criminal Jury Instructions.

Jurors in criminal cases hear similar instructions every day in courtrooms across this country — jurors are judges of the facts, not the law. But, next month, South Dakota voters will have the opportunity to change all that through a proposed amendment to the state constitution that grants juries the explicit power to judge not only the facts but also the laws themselves.

The proposed addition to South Dakota’s Constitution, known as Amendment A, states that criminal defendants have the right "to argue the merits, validity, and applicability of the law, including the sentencing laws." Thus, if approved, the amendment will enable a defendant and his lawyers to openly argue that jurors should ignore the law and vote to acquit for any variety of reasons, even if the facts show beyond a reasonable doubt that the defendant committed the crime. By allowing such an argument, the amendment would institutionalize the power of jury nullification in South Dakota’s Constitution.

That juries already possess the ad hoc power of nullification is an inherent feature of a criminal justice system that allows a jury to decide a defendant’s guilt in secret without explanation or review.

Proponents of the amendment herald it as a necessary countermeasure against a justice system that allows misguided prosecutions for technical offenses and imposes draconian punishments for victimless crimes.

Institutionalizing jury nullification would allow "jurors to get around mandatory minimums, drug laws, felony DUIs or any law that is being applied unjustly," according to University of South Dakota law professor Chris Hutton. "If this passes, it would be open season on the law."

The leading advocate of Amendment A and a peripheral candidate for state Attorney General, Bob Newland, agrees, and points to the marijuana possession conviction of a quadriplegic who used the drug to treat muscle spasms as the reason jury nullification needs to be written into the state constitution.

Unfortunately, institutionalizing the power of jury nullification will only permit juries to dispense inconsistent justice on a more frequent basis.

If juries are not only able to, but constitutionally instructed to question "the merits, validity, and applicability of the law" in each case, as to each defendant, for each jury deliberation, then "Equal Justice Under Law" will be entirely dependent upon the hearts and minds of the handful of jurors sitting in the jury box. Each verdict will be indelibly marked by the imprint of the selected jurors and their own personal thoughts about what the law should be.

The founders framed the Constitution and relied on the separation of powers to ensure against the "tyranny of the majority," but there will be no check on the "tyranny of the minority" available to each jury when states, like South Dakota, constitutionalize the power of jury nullification.

Criminal law will no longer reflect the will of the people expressed through their duly elected representative government. Instead, unelected, unaccountable jurors will decide case-by-case, jury-by-jury, whether to apply our laws at all.

Such a system is irreconcilably at odds with our "[nation] of laws, and not of men," as stated by John Adams and later adopted by the U.S. Supreme Court, because it substitutes the will of a few jurors for that of the people expressed through the laws enacted by their representatives.

South Dakota’s Amendment A must be defeated. If the rule of law means anything, it must mean that juries of our peers should not be instructed to selectively apply the laws legitimately enacted by the people as a whole.

[Posted October 25, 2002]


November 6, 2002
The Voters Answer: A State of Laws

The voters of South Dakota rejected the proposed constitutional amendment to institutionalize jury nullification by a margin of more than 55 percentage points.

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