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South Dakota's Constitutional Amendment A: It deserves debate

By Paul M. Weyrich
web posted October 21, 2002

South Dakota is not a state usually considered to be a "trend-setter" in the way that California is generally regarded. But a constitutional amendment that is on the state's November ballot has the potential to spark a revolution in how criminal cases are considered. Indeed, the website of the amendment's sponsors has a message posted from a San Francisco attorney named David Michael that says: "We in California are just waiting to see the results to one of the most important initiatives in the history of this country."

Sponsors of "Constitutional Amendment A" label it the "Common Sense Justice Amendment." Its passage, say detractors, would permit what they call "jury nullification" and they obviously speak of the amendment in more derisive terms. One of Constitutional Amendment A's critics has called it "anarchy in the making." Constitutional Amendment A's proponents argue that until the late 19th Century, juries were expected to consider the law in reaching a verdict, but also the facts of the individual case and to use their consciences.

That might seem self-explanatory, but a Supreme Court decision in the mid-1890s called Sparf and Hansen vs. the United States determined that while juries have the power to ignore the judge's instructions regarding the law, they did not have to be advised of it because it was not defined by the court as a right. That thinking has now taken hold at the state and local level too. Several states -- Georgia, Maryland, and Georgia -- do say in their constitutions that juries have the right to consider both the facts and the law. However, Amendment A states the accused will have the right "to argue the merits, validity, and applicability of the law, including the sentencing laws." In Sparf, proponents claim, the court decision provided that states and localities could rely upon their own laws for guidance regarding the powers of the jury, and that is what Constitutional Amendment A's proponents say they desire too.

Constitutional Amendment A's proponents note that none other than John Adams, our second president, had said the juror "not only [has] his right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

What Constitutional Amendment A does, claims its proponents assert, is to simply "reinforce our right as Americans to a fair trial" and they view it as a check against bad laws. With Constitutional Amendment A, proponents say, they are rebuilding a link between juries and legislators, expecting that the decisions reached by juries can guide legislators in the drafting of laws.

Some of its leading proponents are libertarians and, while they are reluctant to predict winners and losers from its passage, some of the groups that might benefit from Constitutional Amendment A's passage are home schoolers, pro-life demonstrators, and gun owners.

For instance, there are school zones considered to be "firearm free" zones. But if a hunter was driving by a school and took out his weapon because he saw a student being assaulted by someone with a firearm, the hunter could end up being charged with a crime. That is why the South Dakota chapter of the Gun Owners of America backs Constitutional Amendment A.

However, if passed, Constitutional Amendment A's passage could be used in other "victimless" crimes such as gambling, prostitution, and growing marijuana that are bound to run against the values of social conservatives.

The amendment is supposed to apply only to criminal cases, and its proponents are compiling a list of horror stories of what they consider to be unfair prosecutions and posting them on their website. In one such case, a teenage girl describes the harassment she experienced from a gang of girls and the failure of school authorities to take action. Fed up, she opened a car door and became involved in a fight with the girls, only to find herself charged with a crime. After explaining the situation to the judge, some of the possible punishments were not included in the sentence. But she was stuck with paying $150 for an anger management assessment only to find the psychologist she visited say there was no problem. "I'm for amendment A because of what happened to me," writes the anonymous teenager.

The opponents of Amendment A include the South Dakota Bar Association, State Attorney General Mark Barnett, and the South Dakota Trial Lawyers Association. The critics argue that Constitutional Amendment A's passage could very easily permit a greater degree of relativism by juries in reaching decisions. For instance, Mike Moore, the president of the South Dakota State's Attorneys Association, is quoted by the Associated Press: "A jury could find a rich person guilty of theft but decide that a poor person had a good reason to steal."

It is the very arbitrariness of the decisions that could be reached by a jury under Constitutional Amendment A that ignites such heated controversy.

The "con" statement provided by Robert Frieberg, a former president of the State Bar Association of South Dakota, to the South Dakota voter guide, argues that the amendment's proponents say it would apply to "victimless crimes" and that they talk of "political crime cases." But the proponents, Frieberg charges, have failed to provide an adequate definition of what constitute such cases.

"Arbitrarily, juries could decide at what age a child could consent to sex, which taxes a person had to pay, and when to excuse someone from selling a child alcohol or drugs," asserts Frieberg.

While the concept of jury nullification has been used in cases involving the transportation of fugitive slaves and prohibition, the opponents of Constitutional Amendment A counter that it undermines the concept of equal justice under law. One of the very reasons cited by the colonists for declaring independence from England was the king's refusal to adhere to the law. The proponents of Constitutional Amendment A are willing to place their faith in the jurors to reach a wise decision.

Whether Constitutional Amendment A wins or loses, conservatives need to give careful thought to the thinking behind Constitutional Amendment A because I doubt its impact will be confined to South Dakota.

There are other reforms advocated by the Fully Informed Jury Association (one of Constitutional Amendment A's proponents had helped to find FIJA) that are more likely to engender much less controversy within the conservative movement and perhaps even prove to be more practical to implement. One reform is to ensure more diversity in the jurors that serve on juries, thereby eliminating the ability to have attorneys for the defense or prosecution "custom-design" juries in the hope that they will arrive at particular decisions. Another common sense reform is to allow jurors the right to take notes, even to ask questions of witnesses through the judge.

South Dakota's Constitutional Amendment A opens up the discussion of whether our jury system can work better. It's time we had this discussion. But we need prudent reform, not just reform for reform's sake. South Dakotans have a trying task awaiting them on Election Day. They will have to decide whether Constitutional Amendment A will deliver what its proponents claim it will and if it is needed. Or whether Constitutional Amendment A's passage will bring about something more that will have significant consequences for the system of justice -- unintended or not -- in their state. Let's hope Constitutional Amendment A receives a full and vigorous debate.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.

Other related stories: (open in a new window)

  • Jury nullification by Charles A. Morse (March 12, 2001)
    Charles A. Morse argues that says that a juror has a bigger role than to simply judge innocence or guilt. Judges and lawyers aren't real keen that you know that
  • Jury trials too costly...or just too hard to control? by Vin Suprynowicz (March 1999)
    Have you noticed a lot of media talk in America about eliminating or modifying jury trials? Vin Suprynowicz explains why and what it means
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