Akademik

(JOOR.ee nul.uh.fuh.KAY.shun)

n.

The act of a jury finding a person not guilty because they believe the law under which the defendant was charged is unfair, misguided, or not applicable.

— jury nullifier n.

A measure on the South Dakota ballot this November would allow defendants to tell juries they can disregard a law if they don't like it — a prospect that has the legal profession aghast.

Amendment A would let people accused of crimes argue that a law should not apply to their circumstances or that is has no merit. The practice is known as jury nullification.

The proposed amendment to the South Dakota Constitution was put on the ballot after more than 34,000 signatures were gathered by a group that includes at least one advocate of legalizing marijuana use. The idea could also appeal to the libertarian right, tax protesters, gun owners and abortion foes. Opponents say the measure would cripple the legal system.

— Joe Kafka, "South Dakota ballot measure allow defendants to tell jury they can ignore the law," The Associated Press, September 22, 2002

The South Dakota initiative, known as Amendment A, is the next step in a centuries-old debate about the role of juries in deciding not just the facts of a case but also the wisdom of the law in question. The shorthand term for the complex subject is jury nullification. Proponents of the amendment say it is a necessary countermeasure.

"I'm concerned with the increasing criminalization of more and more behavior, of things that merely annoy other people," said Bob Newland, the Libertarian candidate for attorney general of South Dakota and the chief proponent of Amendment A.

Among recent misguided prosecutions in South Dakota, Mr. Newland said, were those of a man convicted of cruelty to animals for using his cane to fend off an attacking dog, and parents convicted of child pornography after taking pictures of their toddler in the tub. He said these people were guilty under the letter of the law but should have been able to argue to the jury that the laws in question made no sense.

— Adam Liptak, "A State Weighs Allowing Juries To Judge Laws," The New York Times, September 22, 2002

But no state authorizes jury nullification, and for good reason. Jury nullification undercuts the principle of equal treatment. A defendant before one jury might be convicted while a defendant in similar circumstances before a different jury might be acquitted. In essence, jury nullification says the law applies to some people, but not to others.

Nullification also is profoundly undemocratic, because it allows a minority of 12 people to overrule the state legislature that passed the law that the jury is refusing to apply. By extension, these 12 people are overruling the will of the voters who elected that legislature...

As for members of religious, gender or ethnic minorities who see a boon in jury nullification, Ohio attorney and Cincinnati City Council member David A. Pepper, who has written about the issue, has a warning: Throughout history, nullification has been a two-edged sword. While it has been used to free those accused of helping runaway slaves, it also has acquitted whites accused of lynching blacks.

Everyone would agree that jury nullification is good when it truly serves justice, but there is no way to ensure such an outcome.

— — "Null and void," The Columbus Dispatch, October 5, 2002

The concept of jury nullification isn't even remotely new. In 1734, John Peter Zenger, the publisher of the New York Weekly Journal, was arrested for breaking a law that forbade anyone from criticizing a public official. The jury, claiming that the law was unjust, acquitted the publisher. In the mid-19th century, juries regularly acquitted people accused of harboring runaway slaves.

What makes jury nullification noteworthy in 2002 is the ballot initiative faced by South Dakota voters in today's U.S. mid-term elections. This initiative, if passed, would amend the state's constitution to allow defendants "to argue the merits, validity and applicability of the law." In other words, the defense could say that, yes, the accused is guilty, but the law under which he is accused is a bad or improperly applied law. The jury, if it accepted this argument, could then acquit the defendant regardless of the other facts of the case.

This amendment has generated a fair amount of controversy not only in South Dakota, but all around the U.S. as over the past few months dozens of articles have appeared in newspapers and magazines arguing the merits and dangers of jury nullification. The debates have raised issues along some of the biggest fault lines of American society: race, tolerance, political correctness, even democracy itself:

• Is it just to acquit a person because he or she belongs to a group that is perceived to be treated unjustly under the law?

• Is it fair to apply the same law to all people in all situations?

• Is it democratic for twelve people to temporarily overturn a law crafted by the elected members of a legislature?

Juries have always considered such questions in their deliberations, and since their work is secret and not open to review, juries have often turned to nullification to free the unjustly accused. But if South Dakota's Amendment A (as it's called) passes, this will mark the first time that the ability to argue the merits of the law and its subsequent jury nullification have been given official status in a state's courts.

This ballot initiative was soundly defeated in the November 5 mid-term elections, with about 80 percent of voters rejecting the amendment.