October 31, 2002

I’VE MENTIONED SOUTH DAKOTA’S PROPOSED CONSTITUTIONAL AMENDMENT ON JURY NULLIFICATION BEFORE, but here’s an article by Stephanie Simon in the Los Angeles Times on the subject. I think that this is the most telling passage:

Opponents, meanwhile, have been afraid to do much public campaigning. Lawyers have debated the amendment at forums across the state—including one here last week at the University of South Dakota law school. They worry that advertising might backfire. Voters tend to be suspicious of attorneys—so they might reason that if the state bar opposes Amendment A, it must be good.

With all due respect to my own profession, this states a serious problem. The article is pretty balanced overall, but omits the single biggest issue in my opinion: people get exercised at the idea of giving a jury unreviewable discretion to let someone go when they’ve violated the law, but police and prosecutors do that all the time. The question is, is there any reason to trust juries less? I haven’t seen anyone address that, much less answer it satisfactorily. And given that the criminal law has become so complex and unpredictable that prosecutors can almost always find something to charge someone with, there’s a lot of unsupervised discretion on that end, too. It only seems fair to give juries authority to police this exercise of prosecutorial discretion, especially as courts are basically unwilling to do so.

The answer the legal establishment gives to charges that prosecutors might misbehave is basically: “trust us.” But they don’t trust juries, and they haven’t given any very persuasive reasons why they’re more trustworthy than juries are. And there are some good institutional reasons to suggest that they’re less so. For more on this, you can read my review of Clay Conrad’s book, here.