A RIGHT OF JURY NULLIFICATION IN SOUTH DAKOTA?
Why Amendment A Should Be Rejected

By SHERRY F. COLB

Wednesday, Oct. 09, 2002

On next month's ballot, the voters of South Dakota will have the opportunity to amend a portion of their state constitution. Amendment A, if adopted, will permit a defendant in a criminal case to make a novel argument to her jury. She can, if she chooses, admit that she is guilty as charged but ask the jury to acquit her anyway, because the law that she violated is wrong or unduly harsh.

This Amendment might seem attractive or relatively minor at first blush. But upon closer examination, it is quite pernicious and should be rejected by the citizens of South Dakota.

Juries Judge Facts, Not Law

At the end of a criminal trial, a judge ordinarily tells the jury to bring back a guilty verdict if, but only if, it finds beyond a reasonable doubt that the defendant violated the law in question.

Most of the time, we lawyers focus on the part that tells the jury to acquit if the evidence falls short. That's the portion that protects innocent people from being mistakenly convicted, even at the cost of acquitting some guilty people. The jury may find that a particular witness is not credible, for example, and acquit accordingly - even if it suspects that the defendant is actually guilty.

But another part of the instruction deserves attention as well. This portion tells jurors of their obligation to convict the defendant if the evidence convinces them beyond a reasonable doubt that he is guilty. If jurors believe in guilt beyond a reasonable doubt, they do not have the right to acquit. Whether they like it or not, jurors must apply the law as instructed.

Amendment A would relieve jurors of this obligation.

Jury Nullification: Nothing New

In one respect, Amendment A would merely formalize a power that all U.S. juries already have.

The jury normally receives an order from the court telling it to accept the laws as they are. Nonetheless, it retains the power to judge those laws, a power sometimes known as jury nullification.

The reason it has this power is that no one can force a jury to convict a defendant. No matter how convinced the jurors are of a defendant's guilt, in other words, they can choose - in violation of the law - to acquit him anyway, and nobody can do anything about that. Nullification is a byproduct of the robust right of criminal defendants to a trial by jury.

The proposed Amendment A to the South Dakota constitution would permit a criminal defendant to inform her jurors explicitly of their power to nullify the law and would permit the defense to invite them to exercise this power. It would thus transform the de facto power to nullify the criminal law into an express right to do so - one that could be argued by counsel and referred to in court.

What a Right to Nullify Would Look Like In Practice

Under a regime in which jurors have the right to nullify, a judge could no longer tell them that they must convict a defendant they find guilty of an offense. To ignore the law would no longer constitute an abuse of the jury's power, as long as that disregard inured to the benefit of the defendant.

Under these circumstances, the jury instruction about convicting people when the prosecution proves every element of the offense would become a recommendation rather than an order. If the jury likes the criminal law at issue, it can apply it to the defendant. If it does not, it can acquit the defendant without even considering the evidence.

Sometimes, in an individual case, nullification could yield the best possible result. When a law is patently unjust, but a prosecutor nonetheless chooses to apply it, a jury can use its power to protect a particular defendant from injustice.

Prior to the Civil War in this country, for example, a jury believing the fugitive slave law to be morally repugnant could acquit a defendant charged with its violation, no matter how overwhelming the evidence. It might have been desirable for a defendant to be able to ask explicitly for such an acquittal, rather than having to hope that the jury would, on its own, reject an unjust law.

But consider a much more common scenario involving nullification in the antebellum period. A white man would murder a black man. An unusual prosecutor might charge the white man with the crime and present his evidence to an all-white (and all-male) jury. The jurors - white supremacists who believe that white men should not be prosecuted for killing black men - would find the white defendant not guilty.

Imagine an Amendment A antebellum regime. The defense lawyer could now explicitly say to the jury that it is unduly harsh and draconian to convict a white man of "murder" when he kills a black man. Instead of representing an abuse of its absolute discretion to acquit, the jury's disregard for the law would have become an officially sanctioned act of condoning interracial homicide.

Why the Legal Status of Nullification Matters

Though a judge's order to convict a guilty defendant is ultimately unenforceable, most jurors who receive such an order feel obligated to follow it. Indeed, over the years, some jurors have reported that although they felt uncomfortable about convicting a sympathetic defendant, they did not feel they had a choice: the injustice of the law was a matter for judges and legislators, not for them.

Inviting nullification, however, would liberate such jurors to nullify those laws that they did not like, and the phenomenon would become more common. Many people, for example, feel that drug laws are unjust, and would acquit defendants charged with such offenses, regardless of the evidence. Others approve of the drug laws and would gladly convict a guilty defendant.

Rather than turning on the strength of a prosecutor's case, the outcome of a drug trial would begin to turn primarily on the ideological commitments of the particular jurors. The same would hold true for gun control laws and laws against the harassment of people entering abortion clinics.

In general, fairness dictates that criminal prohibitions should be the same for everyone. Routine acquittals of obviously guilty people would quickly breed contempt for the law. Indeed, because much of the population perceived the O.J. Simpson acquittal as a product of jury nullification, the verdict triggered disrespect from many quarters and yielded racial tension between those who liked the outcome and those who did not.

To make jury nullification an explicit right would be to embrace a species of vigilantism within the halls of justice.

Even though the law tells us not to commit crimes, there are and always will be people who disregard that command and who manage to evade capture. Under these circumstances, they exercise a power that is partly a byproduct of living in a free society where much of our behavior escapes the notice of the government.

But just because we have the power to violate the law does not mean that we should be invited to do so. The invitation to follow only those laws of which we approve could increase the crime rate, because many individuals disapprove of laws that a majority of the population supports.

A jury's right to decide, on a case by case basis, that some laws are not worthy of respect, sends the message that every law is up for grabs and that each individual is entitled to decide for himself or herself whether to follow the law. Official nullification, in other words, condones and propagates vigilantism.

Independent of its practical consequences, moreover, the invitation for jurors to be a law unto themselves runs contrary to the long-held ideal in this country of a government of laws, not of men. A law that people are invited to disregard is no law at all.


Sherry F. Colb is a professor at Rutgers Law School. She teaches and writes about criminal procedure, along with other subjects. Her OpEd pieces on related topics may be found in the archive of her columns on this site.

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