SOUTH DAKOTA TO VOTE ON NEW CRIMINAL-PLEA OPTION JURY NULLIFICATION

South Dakota citizens will cast their vote this November on legislation to
give criminal defendants the right to plead guilty while arguing for
acquittal on the grounds that the law is misguided or being misapplied.

The initiative, known as Amendment A, is at the center of a heated debate
over democratic principles. Many feel that, if passed, Amendment A would
allow juries to decide whether a law or set of laws is just. This jury
power is commonly referred to as jury nullification.

Proponents of the bill say that it would empower the citizen-government
that is the jury, while adversaries of the bill feel that it would be
anti-democratic to such a small group of people to decide the fairness of a
law.

Joseph Thome, emeritus professor of law at the University of Wisconsin,
said the bill would go against some democratic principles.

"I haven't read the specific statute [Amendment A], but I would say I would
disagree with it in principle," Thome said. "It gives too much power to
those 12 people."

South Dakota has had a recent string of controversial jury trials: a man
convicted of cruelty to animals for using a cane to fight off an attacking
dog, parents convicted of child pornography for taking pictures of their
child in the bathtub, and a quadriplegic convicted for using medicinal
marijuana. In these cases, the juries found the defendants were in fact
guilty of breaking the law, however the wisdom of the law and its
application in these cases was still unclear.

Herbert Kritzer, a professor of law and political science at UW, says that
currently the jury does have the power of nullification, but it is not
outlined specifically in their instructions.

"Jury nullification already exists and happens fairly regularly," Kritzer
said. "Regardless if the jury thinks the defendant is guilty, they can
still acquit."

Once a defendant is acquitted, they cannot be tried again on the same
charge because of the tradition of double jeopardy.

"In cases of mercy killings, routinely, this sort of thing happens,"
Kritzer said. "Jack Kevorkian, for example, didn't deny he assisted these
individuals to commit suicide, and the jury still acquitted."

Thome says that in cases where the law seems to be misapplied, they fall
under the jurisdiction of the prosecutors.

"People don't realize that district attorneys have a lot of discretion on
when to prosecute," Thome said.

Kritzer agrees that the bill would allow "the jury to check the power of a
prosecution-happy district attorney."

Kritzer says in the past the same question arose with regard to the 1957
Civil Rights Act, which made racial discrimination illegal.

"There was a question whether a person who violated the act was even
entitled to a jury trial, because no white Southern jury would convict
anyone of discrimination," Kritzer said.

"Jury nullification is a double-edged sword," Kritzer said. "A jury could
be biased and just not like the law, or it could be making provisions for
circumstances the lawmakers didn't forsee."

"Juries can be extremely biased," Thome agreed. "Its better to put the
pressure on the legislature."

Thome said ideally it is the legislature's job to clarify laws that are
misguided or being misrepresented.

It is unclear whether or not Amendment A will pass. The petition to have
the bill voted on in November was signed by some 34,000 people, which is
more than 10 percent of the people who voted in the last statewide election.