SD proposing expanding jury powers to nullify unfair laws.
September 23, 2002 12:06 AM   Subscribe

SD proposing expanding jury powers to nullify unfair laws. South Dakota's proposed Amendment A would give juries the ability to accept a guilty verdit but let the offender go if it is shown that the law is either draconian or misguided - as is usually the case with victimless crimes like drug posession and 'in the bedroom' sex laws. Jury nullification: a necessary check on our over-legislated society or a potential breakdown of the modern justice system?
posted by skallas (21 comments total)
It's an interesting idea; a good one, I think. Just the fact that every civil-libertarian ideological group I can think of supports it makes a decent case in itself.
posted by Yelling At Nothing at 12:13 AM on September 23, 2002

As far as focusing on only the 'cool trials' criticism goes, what ever happened to the ethic behind this:

"Better that ten guilty persons escape than that one innocent suffer," - William Blackstone

Just because there is potential for abuse doesn't necessarily invalidate the proposal.
posted by skallas at 12:46 AM on September 23, 2002

Worth becoming a resident of South Dakota over, almost.

Washington state is pretty high up on the libertarian and/or socialist rankings - would be nice if we saw something like this.
posted by Ryvar at 12:47 AM on September 23, 2002

When juries think the law is stupid, they have a habit of aquitting anyway.
posted by salmacis at 12:54 AM on September 23, 2002

Jury nullification can have the effect of perpetuating and even exacerbating social problems like sexism and racism by letting people who perpetrate crimes against certain groups off the hook. On the other hand, it is a powerful check on bad laws, and even for good laws that are not written in such a way that they can take all the factors of a situation into account. While at its worst it can give prejudice some serious power in the courtroom, at its best it allows for a much more subtle application of the law, and can help prevent prosecutorial abuse. Not only that, but with units of government as large as ours (and all modern governments) are, many communities are not well served by the traditional democratic process, especially when it comes to powerful, top-down federal and state laws like drug laws. Even if only one percent of the country disagreed with the current drug laws that would be 2.6 million people. These people would not be spread evenly throughout the country; they would mostly be congregated in communities. These communities would have no power to change the federal drug laws through normal democratic means, as they are in the far minority over all, but jury nullification would let them interpret the laws in the spirit of their community.
posted by Nothing at 2:05 AM on September 23, 2002

Jury nullification can have the effect of perpetuating and even exacerbating social problems like sexism and racism by letting people who perpetrate crimes against certain groups off the hook

How, exactly? I mean, the law still has to be actually overturned through usual means. All jury nullification does is give the jury the opportunity to say "we don't like it, but this is how we gotta vote."
posted by Yelling At Nothing at 2:16 AM on September 23, 2002

Yelling At Nothing, I believe Nothing is referring to the historical fact as to how jury nullification has been used: like white juries not convicting white people of killing African or Native Americans; Juries who have decided that "she asked for it" in rape cases, though in rape law how the victim was dressed is not an acceptable excuse.

As many have said, unless the jury tattles on itself, no one will know why a jury has found "not guilty", so juries effectively have nullification power. Giving juries this =explicit= right can make a law be enforced even less consistently than it already has. Not every community would be happy to give a pass on illegal drug use, even if the user uses it to relieve pain -- and not every defendant will be considered sympathetic. Consider the jury case I was on earlier this year -- over half of the jury believed the defendant had actually done the crime, the defense lawyer was an ass, the defendant was not sympathetic.... and yet we acquitted, because the evidence presented by the prosecution did not prove the crime "beyond a reasonable doubt". We, as the jury, followed the judge's instructions - we didn't get to decide based on a "gut feeling" or what we felt about laws on auto theft and assault.

I think that there's indeed a great problem with explicit nullification vs. legislative change. Already there is great disparity racially with who gets put in jail for drug use and who gets to go to treatment -- jury nullification could possibly add to this injustice.
posted by meep at 4:20 AM on September 23, 2002

It was my understanding that juries always have this right. In fact, some people maintain that the jury is the ultimate law of the land.

Hell, just mentioning the above organization the one time I was in a jury pool got me excused by the guy in the robe.
posted by Dagobert at 4:48 AM on September 23, 2002

In the absence of regularly occurring legislative change, which I think is pretty much the case everywhere, I would think that explicit nullification is a pretty decent way of controlling the ever growing collection of outdated and/or bad and/or badly written laws on the books.

I do admit that the practice of explicit nullification would carry some dangerous possibilities in situations of racism, sexism, and possibly other situations. So, my preferred solution to the reality of bad laws would be a way to get all laws periodically reconsidered by the legislature....but that carries with it a whole different set of problems: ie it's already difficult enough to get various types of reform legislation we really want to give powerful interest groups a regular opportunity to repeal them outright?

Perhaps the best solution to all this is to stop legislating some issues on a national or even state level. Then, if your local community passed a law you didn't like, moving to avoid it wouldn't be so painful. Ah, but that causes problems too...jeez...
posted by ruggles at 4:57 AM on September 23, 2002

Our legislative system is a pretty good one. Not perfect, but pretty good. We elect representatives from our district that we feel have good judgment, and collectively they vote (to smooth out the whims of any given individual) on potential laws. Often, instead of voting on them, they turn those laws directly over to the people for a decision, in the form of a ballot proposition.

The day that a random group of twelve can overturn the laws that you voted on, or that your elected officials voted on, is the day that democracy dies.

On that day, your voice will be replaced by the voice of someone you don't know and that you didn't vote for.

The checks and balances of the legislative process will be replaced by a system that was never intended to overturn laws.

I must disagree with those who claim that this is a brilliant idea for our civil liberties -- A closer inspection only shows that it's taking away our hard-won freedoms and giving them to a group of strangers chosen by some lawyers.
posted by oissubke at 6:00 AM on September 23, 2002

Jury nullification was associated largely a few years ago with fanatical anti-abortion groups who were caught by local judges distrubuting pamphlets to potential jurors in the district during the trial of some protestors who were arrested for forcibly blocking entrances to abortion clinics. The group's goal was to convince the jury that since abortion was a horrific and immoral action, they had the right by jury nullification to acquit the group members who were on trial for everything ranging from trying to prevent access to the clinics to making death threats over the phone to doctors. Simply because of this I can't support the idea of allowing jury nullification.
posted by XQUZYPHYR at 6:13 AM on September 23, 2002

From the third link: Yet to this day, trial jurors retain the right to veto, or "nullify" bad laws, though they are rarely told this by the courts.

Having pulled jury duty several months ago, I really don't buy this one. We were told several times (the judge read off of a script of what to say to jurors,btw) that you must be able to apply the law as the judge gives it to you. Not your interpretation of the law or what you think of the law. It was all part of the nice swearing-in process.
posted by dr_dank at 6:56 AM on September 23, 2002

"We elect representatives from our district that we feel have good judgment..."

I'm sorry, but that is sadly not the case. Most elected officials, especially local and regional ones, win based on popularity, which is usually generated by campaigning (money).

Therefore, whatever judgement such representative has is not necessarily representative of the people's judgment. Hence, this 'jury nullification' is perhaps more important now than ever.
posted by eas98 at 7:43 AM on September 23, 2002

Permitting jury nullification as a matter of statute violates the Federal Constitution, which requires each state to guaranty due process and equal protection of the law. When a jury is free to intepret the law, or reject the law altogether, in an individual case, that means that it is impossible to provide due process or equal protection.

The drug cases are a great example.

When a popular defendant (a spasmatic paraplegic) and unpopular defendant (a young Mexican drug dealer) are charged on the same charges (possessing x quantity of marijuana, with the same facts (officer testifies that he found defendant in possession of green vegetables, lab tech verifies that the green vegetables in the evidence bag are marijuana), and no defense is raised in either instance, the Constitution requires that both be convicted. If nullification would allow the former defendant to escape, but not the latter, than equal protection has been denied.
posted by MattD at 8:32 AM on September 23, 2002

A follow-up -- to my mind, a much better approach is to broadly expand the legal defense of "justification" or "necessity," which, presently, are very narrowly construed.

This means that the jury does not get to decide if the law is just or prudent (or not), but gets, in the individual case, to weigh evidence that the defendant had no choice, or was serving a good greater than the evil the law was intended to combat.
posted by MattD at 8:34 AM on September 23, 2002

Most elected officials, especially local and regional ones, win based on popularity, which is usually generated by campaigning (money).

We have a democracy. Whether we take advantage of it is another issue, but we have a *right* to do so. The fact that the majority of American "citizens" don't care about the political process, or that they can't be bothered the actually research their candidates, in no way means that we should simply give up on the principle of democracy.

We choose the people who make the laws. If we choose stupid ones, it's our own fault.
posted by oissubke at 8:35 AM on September 23, 2002

eas, I'm sure you feel that way, and I'm sure I'd agree with you on certain days. But what you've stated is merely a cynical truism that is not provable in any logical sense.

For my money, Nothing's point is the crux of the matter. Sure, juries can bollix up prosecution of unpopular laws -- but then they are seizing the domain of the legislature, and in the US at least, there are important reasons the government is divided between three equal branches. If the people believe a law is bad or unfair, then they should change it, or challenge it directly through the court's appeals process. A nullification of a drug prosecution would go over well on MeFi; a nullification of an Enron prosecution (for sake of argument) wouldn't. Even where a majority agrees about the laws (murder, say, and equal justice), nullification can permit a minority to acquit violators. The nullification acquittal is absolute; it has no check, because the state has no appeal of a jury verdict. (Yes, I know there are specific exceptions.)

At the same time I recognize that a juror, like any individual, has the ultimate right and moral authority to stand on principle. I don't propose restrictions on nullification to the point where a principled stand (the legendary one objecting juror, for instance) is made impossible. (Yes, I know not all juries require unanimity. They're not always 12, either!)

It's like the principle that certain rights are held by the people, unless the state has an overriding interest, i.e. Rastafarian firefighters can't wear dreadlocks. Similarly, unless there is an overriding moral principle, I think jury nullification should be considered suspect.
posted by dhartung at 9:30 AM on September 23, 2002

The debate here is not about "allowing jury nullification;" since it happens, can happen, and will continue to happen. What is up for discussion is whether or not the defendant can actually argue for jury nullification. It's more or less a question of trial procedure, since right now most if not all judges will forbid counsel from making explicit references to the jury's (inherent) power to nullify.
posted by norm at 9:34 AM on September 23, 2002

I'd just like to point out, having recently waited through "voir dire" (jury selection), that the set of people selected for a jury is by no means random, and quite unlikely to include many people I would consider peers.

The reason for that is quite simple - the judge basically demands that you apply only the rules and "facts" which are presented at trial while excluding your morals and critical thinking facilities, including your past experiences which may be applicable to the matter at hand. Morally, I couldn't possibly suspend my knowledge and beliefs to swallow what some cooked-up "expert witness" had to say. And I can't see myself sending anyone to prison for years over possession of small quantities of marijuana, either.
posted by gkostolny at 9:58 AM on September 23, 2002

The day that a random group of twelve can overturn the laws that you voted on, or that your elected officials voted on, is the day that democracy dies.

A bit dramatic don't you think? Many feel that they're not represented very well. The democratic element in the US has to do with voting and voting only. Once your rep is elected they have no obligation to keep promises or replying to your letters and faxes. My GOP senator tends to ignore half the letters I send to him. Democracy is a small and somewhat unimportant practical element in the US. Your typical voter interacts only with a campaign for election not directly with his or her rep. There is absolutly no legal requirement for polticians to keep their promises, which only further corrupts whatever connection you may have with your rep.

Then we have the senate. How two people can actually represent a state is beyond me. As dhartung mentioned the best way to do out with an unfair law is to appeal it. Oh Dan, how many more state initiatives does one have to see crushed by the federal government to stop buying the 'everything is ok' party-line? Not enough for you it seems.

Jury nullification isn't pretty, but its practical. This is where I think the states' rights crowd gets it right. Its a check against the lack of representation and brings back the democractic process to the individual. Sadly, a lot of the complaints here can be summarized as "Oh but they will do something that is against my own personal politics!" What a shameful way to look at things. If jury nullification serves the greater good then its mortally acceptable to deal with its potential abuses.

Practically speaking, its a tough act to pull. The defendant more or less throws himself on the mercy of the jury in hopes of a nullification. Who the jury consists of is a pretty complex equation. If they consistantly throw out drug posession cases or support anti-abortion protestors then perhaps its time to do something about that legislation on all levels of government.
posted by skallas at 12:19 PM on September 23, 2002

skallas: ...then perhaps its time to do something about that legislation on all levels of government.

Ay, there's the rub: getting information about the nullifications that do occur into the hands of the legislature(s) and, ideally, seeing to it that they respond appropriately.

Study of this information could potentially reveal patterns of prejudice within US communities which could be used to guide the educational (read: enlightenment) efforts.
posted by theRegent at 12:01 PM on September 24, 2002

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