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.