SABOTAGING THE RULE OF LAW

In contrast to Newton's Laws of Motion, every legal misstep creates an
overreaction fraught with greater peril. Watergate begot the monstrous
independent counsel statute. O.J. Simpson's murder acquittals occasioned
clamor for non-unanimous jury verdicts. And in South Dakota, a few
questionable prosecutions have sparked Amendment A, an initiative up for
popular approval in November that would crown juries with a right to acquit
for any reason irrespective of the evidence. In other words, criminals
could go free because the jury despised their victims or sympathized with
their motivations, no matter how ugly.

Bob Newland, the Libertarian candidate for attorney general of South
Dakota, is the Amendment's chief exponent. But his reasons are unconvincing
and worrisome. As quoted in the New York Times (Sept. 22, 2002), Mr.
Newland laments: "I'm concerned with the increasing criminalization of more
and more behavior, of things that merely annoy other people." Those laws,
however, were passed by elected majorities according to democratic methods.

Opponents were free to oppose. They may seek repeal through the legislature
or popular referenda. But until the likes of Mr. Newland succeed in
capturing the majority, the rule of law cannot tolerate the pardoning of
law violations by the law's opponents through jury acquittals.

To do so would be to deny the right of the majority to pass laws binding on
dissenters, and each man would become a law unto himself.

It speaks volumes that the prime champions of jury supremacy over the law
are groups that have suffered political defeats. This odd tableau features
drug legalization proponents, gun control detractors, pro-life
organizations, and, defenders of a pristine environment from the onslaughts
of civilization. But suppose the law prohibited all abortions, would
Operation Rescue urge jury nullification to pardon abortion providers?

Suppose the law prohibited restricting the sale of handguns. Do you think
the National Rifle Association would celebrate jury nullification for
members of Handgun Control Inc. to pardon attacks on firearms dealers? If
marijuana were legalized, who believes NORMAL would applaud jury pardons of
anti-drug zealots who vandalized marijuana shops like Carrie A. Nation's
took the hatchet to saloons? The questions answer themselves, and strongly
suggest that Amendment A is largely a circumvention of democracy by
ideological groups momentarily frustrated at their inability to persuade
the majority.

Mr. Newland summons in his defense of jury nullification what he
characterizes as misguided prosecutions for unblameworthy conduct: a
conviction for cruelty to animals based on caning an attacking dog; and, a
child pornography guilty verdict based on parental photos of their nude
toddler in the tub. According to Newland, the defendants in both cases
should have been permitted to urge the jury to acquit by ignoring the law
and invoking their personal sense of justice and equity. But the pardon
power of South Dakota's politically accountable executive is designed to
cure miscarriages of justice. Juries, in contrast, speak for only
themselves, act in secrecy, and are not required to justify their verdicts
to the public.

The marquee prosecution that begot Amendment A concerned the ailing Mathhew
Ducheneaux, a quadriplegic beset by leg spasms. He was convicted of smoking
marijuana, which he maintained was medically appropriate to alleviate pain.
His sentence was milder than Sancho Panza's simulated flagellations: a
suspended sentence of five days in jail. And Mr. Ducheneaux is entitled to
seek a pardon. Where is the monumental injustice in his case that cries out
for jury nullification?

Amendment A, moreover, is not confined to petty offenses. Juries could
acquit for vile crimes, like the despicable murder of young Emmett Till by
white racists or the mob killing of Leo Frank. The worst prejudices would
be exploited by defendants to triumph over justice.

Jurors who would categorically refuse to consider a defendant's plea for
nullification authorized by law would be excluded, just as categorical
opponents of the death penalty cannot sit in capital cases. Qualified
jurors would thus be inclined toward sympathy for the defense. Suppose in
the immediate aftermath of Pearl Harbor, a Californian man was accused of
torching the home of a citizen of Japanese ancestry. Jury nullification
would have permitted the defendant to urge a not-guilty verdict to avenge
the "date which will live in infamy," or to prevent a dilution of
Anglo-Saxon blood, or to retaliate for the imagined disloyalty of the
victim or his race. The pro-defense jury would probably have acquitted, and
sent an official message that havoc against Japanese-Americans risked no
punishment.

Jury nullification enthusiasts retort that juries de facto enjoy that
power, despite instructions to follow the law, because their deliberations
are secret and acquittals are final under the double jeopardy clause of the
Fifth Amendment. The antisocial ramifications of unauthorized jury bigotry,
while deplorable, are nevertheless confined because the voice of the law
still condemns the not guilty verdicts. Amendment A, in contrast, gives
government sanction to loathsome jury instincts and lawlessness. By
sponsoring lawbreaking, government would invite a breakdown of the social
order. Nothing in contemporary prosecutorial excesses comes close to
justifying this grim peril of jury nullification.