South Dakota is about to vote on a constitutional amendment permitting jury nullification. This means that juries could vote not guilty on the grounds that the relevant law was unfair or otherwise misguided. The supporters have a site, and the South Dakota State Bar has this to say.
The actual amendment would rewrite Article VI, Section 7 of the South Dakota Constitution as follows. The changes are marked in italics.
In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and the cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf; and to a speedy and public trial by an impartial jury of the county and district in which the offense is alleged to have been committed; and to argue the merits, validity, and applicability of the law, including the sentencing laws.
The supporters don’t actually do a very good job addressing the arguments against jury nullification; there is, in fact, an existing mechanism for allowing citizens input into the law, and it is reasonable to ask whether or not 12 jurors selected at random should have the ability to override a majority vote of the entire populace. I think the answer may be yes, but I dislike the arrogance of claiming that the question is irrelevant. “Common sense isn’t.”
And the lawyers of South Dakota are not universally evil people who rely on scare tactics. Claiming that “they are insulting your intelligence” is the worst kind of populist rhetoric. Sigh.
So the impression I get is that South Dakotans in favor of jury nullification are not in fact capable of constructing or analyzing legal arguments, or logical arguments of any kind. This does not convince me that it’s a good idea to let South Dakotan juries decide cases based on their opinions of the laws involved. Sorry, guys; if you can’t move beyond populist rhetoric, you shouldn’t be trusted with more complex decisions on a jury.