In 2002, Bob Newland led a campaign for a constitutional amendment (Amendment A) to give defendants the right to argue the merits of the laws under which they are charged. Voters rejected this effort to formalize jury nullification by a vote of 22% for, 78% against. Newland says now might be a good time to revive that amendment:
A Case for Allowing an Accused Person to Impeach the Law
by Bob Newland
In light of Dobbs v. Jackson Women’s Health Organization, it might be appropriate for us to revisit a proposal offered to SoDak voters in 2002.
In 2002, after two years of petition circulation, Common Sense Justice, a SoDak political action group, achieved the ballot with a proposed amendment to Article VI, Section 7 of the SoDak constitution. The proposal was to add to defendants’ rights in criminal cases, which already guaranteed the rights of confronting one’s accusers, being able to view the prosecution’s evidence, and the right to trial by jury.
The addition consisted of fourteen words to be appended to the already-enumerated rights of accused persons: “…, and to argue the merits, validity, and applicability of the law, including sentencing laws.”
The vote tally in November of 2002 was 82% against, 18% for. We lost by an astounding margin. The language is so plain and common-sense that I still can’t comprehend why such a huge majority was opposed to it. What is the sense of having a jury of one’s peers if not to rule on the sensibility of the law under which someone’s life could possibly be ruined, along with the possibility that the accused is accused of doing something, that (s)he actually did, that really should not be illegal?
I was a principal in that effort, a member of a national group called “Fully-Informed Jury Association” (FIJA). FIJA endorsed our proposal, and a couple of its members donated a ton of time to obtaining the necessary 42000 signatures. They spent hundreds of hours at the courthouse in Sioux Falls.; a couple of comfortably-retired guys whose sensibilities had been offended by the swaths of ruined lives in the wake of the New Jim Crow, widely recognized as “drug” offenses.
I was attracted to the proposal because I immediately saw that, if a defense attorney were allowed to argue to a jury that his client’s at-home smoking of a joint was not a threat to public safety, and demonstrate that the prosecution’s only argument—“But it’s against the law”—was pure poultrypoop, prosecutions for possession or use of weed would disappear. This was at a time when there was a “marijuana”-related arrest occurring every 45 seconds in America and every two hours in SoDak. The result nationwide and in SoDak was a conviction for about half the arrests.
The results for the vast majority of those convicted was a fine and a conviction record. Both could be devastating. For many, the results crippled their lives. The numbers are astounding. Jack Herer, the Emperor of Hemp, estimated in 1980 that weed convictions had resulted in 20-million person-years of incarceration since US citizens had been prosecuted (beginning with the Marijuana Tax Act of 1937) for possession or sale of a useful, benign, sometimes-medicinal plant.
The attacks on Common Sense Justice were severe. The Southern Poverty Law Center, a group I endorse, labeled us a ‘hate group.” Their premise was that we wanted to return to the days when a white person could shoot a black person and argue to a jury “That’s legal here, ain’t it?”
We were aware that terrific injustices had been done in courts by juries, particularly in cases involving black folks being killed by white folks. We were also aware that these injustices were not being perpetrated by overt arguments to juries that suggested it was okay for whites to shoot blacks. Jim Crow was more sophisticated than that. We wanted injustices to stop being visited on folks who were being accused of trying to feel better by using a proven—if arbitrarily illegal—herbal remedy.
Tom Barnett, lobbyist for the SoDak Bar, said, “If they don’t like the drug laws, they should lobby the legislature for a change in the law. There is no place for people who want to change in the law in a courtroom.” This seemed rather egregious to me, since laws are regularly changed in courtrooms—when the law’s opponents are allowed to present arguments in opposition.
I wrote the proponents’ ballot issue voter-information argument published by the Secretary of State. If I had that to do over again, I believe I could do better. However, compared to the opponent’s argument, written by Robert Frieberg, a Beresford lawyer, it was a veritable Magna Charta.
Frieberg essentially ignored the issue at heart and lied while attacking his strawman. I include an excerpt:
Our personal liberty and private property rights remain secure only because we have laws that assure them.
Amendment A would erase those assurances and disrupt the stability on which we depend. It unmistakably and plainly says that a jury can ignore the Law – no matter what it provides, whom it protects, or how important it is to a civilized society. Amendment A establishes no standards. There is no assurance of fairness, no provision of due process, no guarantee of equality. A jury that chooses to ignore the law can do so without even giving a reason.
Amendment A would allow juries to be arbitrary, unreasonable, vindictive, mean spirited, ignorant, and unpatriotic. A jury could ignore treason. It could impose a trivial fine for murder. Arbitrarily, juries could decide at what age a child could consent to sex, which taxes a person had to pay, and when to excuse someone from selling a child alcohol or drugs [Robert Frieberg, con statement to 2002 Amendment A, South Dakota General Election Ballot Question Pamphlet, published by SD Secretary of State, fall 2002.].
Lie: “It unmistakably and plainly says that a jury can ignore the Law.” Amendment A actually proposed that defendants be able to present arguments about the laws themselves. There was, and is, no prohibition on a jury’s ignoring the law; juries do so regularly.
Lie: “[A jury] could impose a trivial fine for murder.” Juries don’t impose sentences on accused people. They rule on guilt or innocence. Judges impose sentences. It is impossible to garner the impression that we were proposing that juries impose sentences. Frieberg knew that.
Lie: “Amendment A would allow juries to be arbitrary, unreasonable, vindictive, mean spirited, ignorant, and unpatriotic. A jury could ignore treason. Arbitrarily, juries could decide at what age a child could consent to sex, which taxes a person had to pay, and when to excuse someone from selling a child alcohol or drugs.”
Amendment A would not have produced these effects, nor would a similar amendment today. They already existed; juries were and are regularly arbitrary, unreasonable, vindictive, mean spirited, ignorant, and “unpatriotic” (whatever that word means in the context).
Ironically, there was at that time a SoDak statute that created a misdemeanor for the act of lying in the course of making an official statement about a ballot issue. “A jury could impose a trivial fine…” was so blatantly a case of cognizant misrepresentation that I filed a criminal complaint with Mark Barnett, SoDak Attorney General at the time. Barnett refused to act on it. The law was subsequently repealed in a legislative session, making it legal to lie in the course of official statements. So much for another of Frieberg’s assertions in his public statement: “Voters, their elected officials, and an independent judiciary assure us of fairness.”
In a few words, we felt that the adoption of Amendment A would have allowed people accused of violations of SoDak cannabis prohibitions to present the truth about weed to juries, and, in the process, shred any argument of “merit” or of fair application of the law, including the sentencing laws.
Incidentally, the common-law precedent for Amendment A is found, at least partially, in the prosecution of William Penn, in 1670 in England, for preaching Quakerism on street corners. Penn did violate a law against such acts, and argued that the law was unjust.
The jury acquitted him. The judge imprisoned the jury, on bread and water, until they “should come to a proper verdict.” The jury held up under the torture and Penn was eventually exonerated.
That, and other cases, such as that, in 1733, of John Zenger in New York for publishing facts about the crown-appointed governor, led to rights guaranteed in the United States to accused people. He was tried for “seditious libel;” which amounted to anything uncomplimentary published about a representative of the crown. A New York jury suffered threats and oppression, but continued to hold Zenger not guilty, despite his admission to having broken the law.
About 100 years ago, the US Supreme Court held that, while a jury’s verdict was sacrosanct, defense attorneys could be prohibited from presenting evidence impeaching the merits of the law itself.
Were Amendment A in effect today, one can easily imagine its application in cases prosecuting women and their medical counsel for ridding themselves of unwanted growths in their abdomens. I rest my case, and await the arguments of the prosecution.
https://mtsu.edu/first-amendment/article/1235/john-peter-zenger
https://www.ushistory.org/us/7c.asp
https://ballotpedia.org/Article_VI,_South_Dakota_Constitution
Fully agreed, Mr. Newland. Courtroom evidentiary procedure can be meticulous and evidentiary procedure should be meticulous. Allowing a visitation of the merit of a law is absolutely valid.
The appropriate time to argue the merits of the law is when it is passed. It would . just be a defense stunt to argue its merits every time someone is accused of breaking it.
Jad, it is, indeed, appropriate to argue the merits of a law during its consideration in a legislature. However, legislatures are comprised of a rather miniscule proportion of the population, and tend to pass laws based on paid lobbyists’ persuasion. This results in laws being passed to benefit a privileged segment of the population.
Over the nearly 100-year course of cannabis prohibition (it is STILL prohibited under federal law) its enforcement has resulted in a swath of social destruction with absolutely no benefit to anyone except cops, lawyers, prison guards and a wide array of businesses which have been able to operate without competition from a remarkably beneficial plant.
I lobbied the SoDak legislature for 15 years to amend SoDak law to more closely reflect sanity. I discovered that marijuana does, indeed, make people crazy. That effect was most noticeable if the person in question was also an elected official.
Were the defense teams, in Penn’s and Zenger’s cases, committing “stunts” when they argued that a person should have the right to promote unpopular philosophy, or that the truth should be a defense against libel?
Representative government is a big, fat disgrace when said ‘representatives’ are allowed to accept any material (bribes) from lobbyists. We the people consenting to be represented, allocate adequate payment for legislative duties. That compensation, along with the satisfaction of serving their people, should fairly suffice any family’s income. If our elected representatives receive payment from any other source, then they agree to represent those other sources, not the people. We are therefore governed by rich, old, fat, white dudes. Period. The laws imposed on us are downright against our will. Shouldn’t the laws we live under have our blessing to be legitimate? If we are free and claim liberty and all that, we have to be able to hold ourselves accountable to our own conscience, not the say of the guy who pays the harlot courts and lawmakers the most.
Under the current SCOTUS interpretation of the Double Jeopardy Clause if a jury acquits someone charged with a crime the government cannot appeal and the acquittal is final no matter what the jury’s reasoning. I have been unable to find any exception to this rule. For example, if a judge is bribed to acquit a defendant that can be overturned on the theory that a defendant was never in jeopardy. But if a jury is bribed and acquits the story seems to be different – the acquittal in final and not subject to appeal, collateral attack, nor any other legal action to set it aside. That is the origin of the concept of “jury nullification.” The jury has the implicit power to nullify the criminal law through an acquittal.
Thus, the notion exists that a “fully and fairly informed” jury should be told about this consequence of a verdict of acquittal so all options remain open to the jury including ignoring or disregarding any criminal statute, jury instruction, and even overwhelming evidence of guilt, even if the jurors do it for an illegal, unethical or improper reason. Some of the potential reasons apparently include disliking a law, thinking that the law is being applied unfairly, being bribed, being angry at the victim, if any, of the alleged crime, disliking the prosecutor, ignoring the overwhelming evidence, being in a hurry to get home, racial prejudice, political favoritism, along with any other reason that a vivid imagination might be able to conjure up.
Bob’s goal seems quite attractive on first blush and for years I too believed that a defense attorney should be able to argue jury nullification to the jury, probably based on reasons similar to Bob, namely, the absurd nature and unfairness of so many criminal drug laws, and I still believe that such laws are a travesty. Lately, however, I have been thinking about the unintended consequences of changing the law to permit arguing jury nullification in criminal cases.
In addressing Robert Frieberg’s arguments Bob makes several observations that seem to be worth exploring: For example, Bob writes:
Bob is correct about existing double jeopardy law, it matters not if a jury chooses to ignore the law and acquits, and Bob’s proposed change of law does not change that situation. Rather, the change would be that under current law, a jury is told that it must follow the law, while under Bob’s proposal, if I understand it correctly, the defense could tell a jury that any law in unfair for pretty much any reason and that the jury need not follow the law, or that if the jury disregards the law such a decision cannot be challenged.
In a marijuana case, for example, the defense could argue that the jury should disregard the judge’s instructions about what the marijuana prohibition law requires and acquit the defendant because the marijuana laws are unjust or are being applied unfairly. It would seem that in a murder case, the defendant should have the same right to argue to the jury that it should disregard the judge’s instructions about what the murder law requires and acquit the defendant because the law against murder is this situation is unjust or is being applied unfairly. And it would seem such an argument should be available an any and all cases, no matter what the charge.
So Bob is correct, the double jeopardy prohibition supports a jury’s verdict even if it violates the law and the proposed nullification statute does not change that. It only changes what the defense can argue.
Next Bob observes:
Bob is correct for the most part, although in a capital murder case the jury does decide the sentence if the defendant makes that request. Under current SD law a judge cannot sentence a defendant to death without a unanimous jury recommendation (unless the defendant waives the jury determination of the sentence), and if that jury recommends a death sentence the SD law requires judge to impose a death sentence.
I note that perhaps Frieberg’s response was based on the language of the proposal that he was addressing, which according to Bob read: “The addition consisted of fourteen words to be appended to the already-enumerated rights of accused persons: “…, and to argue the merits, validity, and applicability of the law, including sentencing laws.” (bolding and italics in original). The reference to “sentencing laws” seemed to indicate that the proposed change might give a jury some say over sentences imposed.
Again Bob is correct that under existing double jeopardy law it matters not if an acquittal is based on “arbitrary, unreasonable, vindictive, mean spirited, ignorant, and unpatriotic” reasons. The difference is that without the change in law a jury must be told in appropriate circumstances that none of those reasons for acquittal are permissible. As the law currently stands jurors that disclose such views are to be regularly weeded out in a jury selection proceeding called voir dire.
With the proposed change in law, once jurors are informed that they may disregard the judge’s instructions on the relevant criminal law because they think that law is unfair, it would seem that a defense attorney could then argue that the juror may acquit based on any reasons, including the juror’s personal “arbitrary, unreasonable, vindictive, mean spirited, ignorant, and unpatriotic” reasons for believing that a law is unfair since, just like a decision based on a good faith belief that a law is unfair or being applied unfairly, an acquittal motivated by any belief, no matter how absurd or unfair, that a law is unfair is insulated from review by the Double Jeopardy Clause.
Here is a terrible hypothetical that seems to fall within the scope of Bob’s proposal. A woman is charged with murder for killing her husband. She says he beat her regularly and she only killed him for that reason, although at the time of the killing the wife beater was asleep and no threat. The prosecution bases its case on evidence that the woman could easily have left while the man slept, reported his abuse to the police and had him arrested, so the killing was factually unnecessary and legally unjustified. Should the defense attorney be able argue that it matters not whether the woman could have simply left rather than killing the perpetrator in his sleep, because any law making it crime to kill someone that has previously committed domestic violence is unfair? If so should this same argument be made any time a defendant kills someone for other reasons? Where should the line be drawn, if at all, as to what a jury made be told?
This seems to be a case of “be careful of what you ask for.”
Interesting. I remember this, but I had moved out of SD and didn’t get to vote on it. I would generally oppose this, but I’m not so sure now that I would. In South Dakota citizens have the initiative and referendum, which allows public votes on laws. So, I would say, that is the route to take if you don’t like what the law says, and the Legislature refuses to enact changes to that law, . On the other hand, the Republicans are determined to throw every roadblock they can in the way of the people having a say in the law. I would think normally that a jury is too few people to decide on the law, but it’s also true that judges insert themselves into the people’s right to change the laws. So, my dilemma is that Legislators are taking away the rights of citizens and judges are taking away the rights of citizens. It would be nice if judges and legislators would stay in their own goddamn lane. It may be time for citizens to take away the powers of the legislature and the judges, until they can respect the will of the people.
I am nervous about the idea of jury nullification. All Mammal asks if laws ought to have the blessing fo the people, but I might contend that we give sufficient blessing when we vote for the lawmakers and when we choose not to repeal bad laws through initiative and referendum. If we have full access to the ballot box, perhaps we shouldn’t need jury nullification.
But interestingly, Amendment A appears not to have dealt with whether juries ought to have the power to nullify laws—it appears from the discussion that they do. Amendment A simply sought to allow defense attorneys to inform juries of that power and invite them to use it. That seems odd—it’s like banning attorneys from telling defendants they have a right to remain silent. If a power is so dangerous to law and order that we don’t dare remind jurors they have it, shouldn’t opponents of 2002 Amendment A propose a constitutional amendment to outlaw jury nullification?
Plea agreements are legal coercion especially where judges and prosecutors conspire to make bail for non-white offenders out of reach by design.
https://www.aclu.org/news/free-speech/its-perfectly-constitutional-talk-about-jury-nullification
Every once in a while somebody with a little knowledge gets missed in voir dire, and a real jury is empaneled. Every once in a while, that juror recognizes the injustice of convicting the accused in the case, because the law itself is BS or because the likely sentence after conviction is inhumane. The one juror can prevent a conviction. The prosecutor can then either retry or not.
Most accused people committed the act for which they are prosecuted. Sometimes, often i fact, the law is BS and it carries an inhumane punishment for its violation. Those cases are, I believe, the very reason for our jury system. That system is operating blindfolded and handcuffed when a defense, based on an argument that the law itself is more dangerous than the act of violating it, is denied.
Your state outlaw’s marijuana but allows sales of kratom. Are y’all crazy!! Or just ignorant?
Judging your group think model of, “Deriving enjoyment by denying ourselves enjoyment.”, I think just ignorant.
If people are getting high and enjoying themselves by ingesting kratom, “It must be stopped!!”
– Kratom is not a sheltered herb in South Dakota. You will be able to find legal kratom in many local stores including vape shops, smoke shops, and specialty shops. Here are some to try when you are in the area. Thrifty Smoke Shop Discount retailer of cigarettes, cigars, and other tobacco products. Known for their prices and great customer service.
Cory’s observation that: “Amendment A simply sought to allow defense attorneys to inform juries of that power [nullification] and invite them to use it. . . .” seems to be consistent with the idea that a jury should be fully informed. Back when I first considered the idea that a defense attorney should be able to inform the jury about jury nullification and argue that the jury should disregard the law the defendant allegedly violated because that law is unfair, it seemed to make a lot of sense on the surface, especially in the situation where defendants were accused of violating unfair and stupid drug laws. If a juror is expected to decide guilt or innocence, which can have the effect of upending and possibly destroying the life of someone accused of a crime, shouldn’t the jury be fully informed about their options in finding facts and applying the law, including that they cannot be forced to respect or obey laws they think might be unfair or stupid under the circumstances?
Much like the laws that require a juror to base its decision on the facts found rather that whether they agree with the law, however, there are many other laws designed to make sure the jury only decides the case on the facts, and not whether they disagree with a relevant law. While the law deems such exclusionay rules to be necessary for a fair trial, perhaps jurors will think differently. Thus, if the juror is told they may disregard the criminal law allegedly violated by the defendant, shouldn’t the jury also be told about relevant evidence obtained by the prosecution in violation of specific laws so the jury can decide for themselves whether to consider that evidence if they decide laws restricting that evidence are unfair or stupid? For example should the jury also be told that:
– The Defendant confessed during an unconstitutional interrogation? Perhaps the jurors will think the Miranda requirements are unfair?
– The police found significant evidence of guilt when they conducted a search contrary to the restrictions of the 4th Amendment? Perhaps the jurors will conclude it is unfair to exclude evidence seized contrary to whatever the 4th Amendment rules otherwise apply?
– The defendant has a history of behavior that makes it likely he or she committed the charged crime? Perhaps the jurors will think that it matters not whether the evidence shows the defendant to be guilty in this case, he or she is a bad person and deserves to be punished based on evidence of prior conduct so rules prohibiting consideration of that prior conduct and finding guilt on that evidence are unfair?
– There are several individuals, although without first hand knowledge of what happened, that can tell the jury what other individuals told them happened? Perhaps the jurors will think hearsay rules are unfair as are rules requiring the right to cross examination so that if one witness will say someone else told him or her that defendant did it, that should be enough to convict?
These are just some of the existing rules that prevent jurors from being fully informed. If the jury is given information that they can disregard the rule of law that limits them to deciding whether the State has shown beyond a reasonable doubt that the defendant committed the acts charged, then it would seem that jurors should be told they can disregard any other rules of law that they find to be unfair, such as 4th Amendment restrictions on searches, or 5th Amendment violations of the right to remain silent, or hearsay rules that are based on the right to cross examine adverse witnesses.
It seems arbitrary to tell a jury that there are some laews it can disregard as unfair but that it must respect other laws it might also find unfair. Thus, fully informing jurors and permitting lawyers to argue that the jurors should disregard laws they find to be unfair or stupid seems to be a slippery slope.
There seems another arbitrary feature of this idea: One jury might acquit Defendant A of violating a criminal law only because that jury thinks the law to be unfair, while another jury convicts Defendant B for the exact same violation, but thinks that same law is just fine. While this problem can happen under our current system, encouraging such a result by enabling law nullification arguments to jurys would seem to compound the problem.
BCB’s reasoning seems to be similar to that of people who think that keeping marijuana illegal also keeps people from using it.
BCB’s list of what-ifs is a little over-the-top. I agree that some rules of evidence might have to be devised to prevent ridiculous defense arguments about the merits, validity and applicability of the law, but I think sound minds can do that, while allowing reasonable arguments.
Bob, FWIW I know that keeping marijuana illegal does not keep all, or even most, people from using it. I also know that, as you observed’ some folks, both people who are aware of jury nullification and people who have not a clue about jury nullification, serve on juries and vote for acquittals and convictions for many different unlawful reasons, including from time to time because they believe a law is unfair.
For example, when a prosecutor submits improper evidence, and the defense counsel objects, the judge will tell the jurors to disregard that unfair evidence, yet some jurors that might think the judge’s ruling is unfair are inclined to disregard the judge’s orders and decide inadmissble evidence should be considered, which then is exactly what sways that juror to vote guilty.
Given that circumstance, are you contending that because some jurors will disregard the law that lawyers should be able to encourage all jurors to disregard the law? If so, would that include all laws, such as the examples I gave? If not, how do you propose deciding which laws the lawyer may argue should be disregarded and which laws should be followed?
It would be interesting to see a Venn diagram of issues most visible through the Overton window using Hallin’s spheres of the jury nullification opinion corridor.
BCB, I admire your apparently-insider parsing of legal issues. I also appreciate your incisive critique of the proposed-and-defeated Amendment A. And you gain crediblity by being an obvious opponent of at least a significant portion of the laws prohibiting people from feeling better except by use of governmentally-approved dietetics.
I have written legislators, including evidence that weed does not make you gay. I received replies that avoided addressing the questions I posed. I have lobbied legislators with evidence that weed does not make you crazy, only to find that it obviously makes people crazy–the people to whom I was presenting a sane argument. I helped put issues on ballots. They were defeated by people telling lies; lies we could not refute adequately because we lacked the resources.
If we can not inform juries that weed is the least of their worries, and present evidence to that effect, then really, what good is a trial by jury? Your what-ifs are all valid until one compares the damage that might be done in your scenarios with the damage that has been done and is being done by the “drug” laws. I doubt that I will change anyone’s opinion on this issue, but there must come an end to ANYONE being imprisoned or fined for the “crime” of attempting to feel better.
BCB: We’re involved in an experiment, involving experimental forays in to a wide variety of socially-relevant issues. Legislatures are tightening their control over the issues the general public can influence. Dontcha think there is a possibility of allowing some argument which impeaches the law itself in a relevant case? I mean, really, Dred Scott?
When Republicans with a supermajority have unlimited financing to make the god under whom the people rule no amount of nuance and parsing can alter that.
Dred Scott, Bud May, and that funny looking Attorney General fellow.
Sometimes there’s just no explaining the wheels of “punishment,” Bob.
Bob Newland, I remember back in the 60s, a leading men’s magazine had a short article proving pot smoking leads to violence and then it showed cops busting Hippie heads for smoking weed. I guess it was true about the cause and effect of imbibing cannabis.
BTW, whatever happened to NORML ( National Organization For The Reform Of Marijuana Laws) and R Keith Stroup, its spokesman?
platy: We aged out.
Snow and cold weather are a choice.
Illegal marijuana is also a choice.
Why are you making this choice, Mr. Newland?
Is there a need within you to frustrate yourself?
Amen Porter. I’ve offered Bob and Loy a respite from the nuclear winter that is South Dakota but suffering seems far more like comfort food.
Aitch, your analogy is so leaky that I am going against my better judgment in replying. In whose estimation are snow and cold weather a “choice.”
Then you go grudznutz with a stupid pair of questions.
Gaslighting by creamed-corn interrogation.
Larry, let’s go over the terms of your “offer of respite” again.
We’ve got two furnished houses without guests until the Ides of March so if you need to escape for a while contact me at my site.
Larry, I can go anywhere for a coupla weeks of warmer weather and relief from SoDak oppression. Whatcha got that actually offers “respite,” like from having to pay bills and stuff?
Ass, gas or grass as they say, Bob. The dispensary is thirty minutes away.
Two houses, you say?
Dispensary? We don’t need no stinking dispensary!
Never mind you old grumpy f*ck.
My kids who just moved to Florida tell me every storm that, “Snow and cold are a choice.” They’re right. I could easily move to Florida or Arizona or California or Mexico. It’s my choice to live through this blizzard that’s coming tomorrow and disrupting my daughter in laws flight up from Tampa to DIA.
Bob, I am in total agreement about the damage caused by our illogical drug laws and frankly will cheer any time that a juror decides against convicting someone because the law and punishment are simply inhumane. My concern is that opening the legal door to such arguments to a jury will do even more harm to defendants, including those people charged with drug crimes. I can just imagine a prosecutor telling jurors they can ignore the Judge’s instructions not to consider some incriminating statement obtain by police in violation of the Constitution – that just because the police used illegal unreasonable force and failed to Mirandize some kid doesn’t mean the confession is not true and the kid shouldn’t be put away for life. Maybe I’m seeing bogeymen where there are none, but I have seen prosecutors use questionable tactics many times, which under current law often lead to a mistrial. If passing your nullification Amendment allowed lawyers to argue a juror can ignore unfair rules and laws I believe it could make matters much more unfair than they already are, since there are many such rules that are designed to protect individual rights.
Lawyers can and do argue to courts, rather than juries, that laws are unfair or unconstitutional and from time to time are able to open the eyes of judges and either get a law set aside, or obtain leniency in sentencing for client that becomes the victim of an unfair law, so yes I think that possibility exists. Indeed, I thought this would have happened in the Gonzales v. Raich case, naively expecting Scalia to actually walk the walk that he often talked, but he showed his articulated ideology was bunk and revealed his true fascist colors by ruling that Congress had the authority to make a criminal out of a sick woman for merely ingesting something to alleviate her suffering.
Ultimately in SD, the current continued efforts of those seeking justice by working their tails off to get Initiatives on the ballot, which at least keeps the injustice out in light, might be the best bet for trying to correct that injustice, rather than the legislature or courts in SD’s ultra-regressive political environment.