Pubdate: Sat, 12 Oct 2002
Source: Washington Times (DC)
Copyright: 2002 News World Communications, Inc.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Steve Chapman

EMPOWERED JURIES, WEAKENED DEMOCRACY

That may not sound like a bad idea. South Dakota is just one of many states 
with draconian drug laws that make criminals out of sick people who smoke 
marijuana to treat their symptoms. Recently a quadriplegic named Matthew 
Ducheneaux was prosecuted for possession of the drug, which he says he 
needs to ease muscle spasms. A jury convicted him - even though, by his 
lawyer's account, "All of them conclusively said afterward that they didn't 
want to find him guilty."

Supporters of Amendment A, as it is known, say his case is exactly the type 
in which a jury should be free to decide that even if he broke the law, 
it's a stupid law that deserves to be ignored. They'd like to see this 
option, known as jury nullification, adopted not only in South Dakota but 
everywhere.

Advocates could do more to publicize that the measure would let juries 
effectively suspend not only bad laws but good laws, and not just in rare 
cases but in common ones. Prosecutors say it could be invoked in up to half 
of all criminal trials - and might offer a refuge not only for those 
defendants charged with "victimless" offenses like drug use and 
prostitution but also domestic abuse, drunk driving and statutory rape.

As the puckish legal scholar Herbert Wexler once put it in reference to 
jury nullification, "What's sauce for the goose depends on whose ox is 
being gored." If you allow juries to acquit pot-smoking invalids, you have 
to let them give a pass to husbands who slap the missus around or good old 
boys who fail roadside sobriety tests. Good laws and bad laws alike can be 
overridden.

Supporters of jury nullification say the measure would merely tell juries 
about a right they already have. As Texas attorney Clay Conrad puts it in 
his book on the subject, withholding this information "is like trying to 
keep teenagers from finding out about sex: If they do not learn about it 
from a responsible source, they are likely to learn about it on the 
streets." Under Amendment A, defendants would be allowed to acknowledge 
technical guilt while arguing that the law they broke shouldn't be applied 
to them. And juries could then proceed to toss it aside.

It's true that juries already have the freedom to acquit even if the 
defendant is indisputably guilty. That verdict is final, and they may not 
be punished for it. But they also have the option of convicting a defendant 
whom they know is innocent. The fact that juries may freely abuse their 
power is no reason to invite them to do so.

This option is supposed to serve as a check on the decisions of police and 
prosecutors. It would also restrain the power of legislatures, which may 
pass laws without giving sufficient attention to the damage they may 
inflict on harmless individuals. The jury, in the view of Amendment A 
supporters, ought to be free to express the will of the community when 
exercising its judgment. As Mr. Conrad puts it, the nullification power 
"exists to prevent oppression by the government, allowing private citizens 
to veto government overreaching."

But private citizens can already veto government overreaching - a process 
known as elections. We can vote out lawmakers who pass bills that authorize 
government overreaching. We have elections to assure that the government's 
laws and policies reflect as accurately as possible the preferences of the 
people.

There is no reason to think juries are more representative of community 
sentiment than legislatures. Juries may just as easily reflect minority 
views. If South Dakotans think medical need should be a defense for 
marijuana possession, they can demand that the legislature pass a law to 
that effect.

Juries are an important part of our system of law and justice. But they are 
also the only part that is totally unaccountable to the people. If 
legislators vote for bad laws, their constituents can vote them out. 
Likewise with prosecutors who bring unwarranted indictments. Police answer 
to their superiors, who answer to elected officials. But juries answer to 
no one. They can abuse their powers by spurning the will of the people, and 
the people have no recourse.

For a jury to overrule a law passed by an elected legislature is not a 
triumph for democracy, as supporters of Amendment A insist. It's the 
opposite of democracy.
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MAP posted-by: Jay Bergstrom