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.