NCPA - National Center for Policy Analysis

South Dakotans to Vote on "Jury Nullification"

August 27, 2002

A voter initiative on South Dakota's ballot this fall would authorize every criminal defendant in the state to challenge "the merits, validity and applicability of the law, including the sentencing laws." Should the measure pass, it could launch a wave of similar measures in other states where zero-tolerance law enforcement and harsh mandatory sentencing rules have bred distrust of the justice system.

Essentially, Amendment A would allow jury nullification. A jury that doesn't agree with the law can vote to acquit a defendant who has clearly broken the law -- and the judge can't do anything about it.

  • Introduction of the measure, known as Constitutional Amendment A, was prompted by the case of Matthew Ducheneaux, a Sioux Indian who lives on the Cheyenne Reservation, who was arrested for smoking marijuana.
  • A quadriplegic confined to a wheelchair, Ducheneaux claims that only marijuana will control his muscle spasms.
  • Although nine states have authorized medical marijuana use since 1996, South Dakota isn't one of them.
  • And although a federal research program has granted him the right to use marijuana, he couldn't locate a pharmacy willing to jump through the hoops of federal procedures.

Passage of Amendment A is not confined to marijuana cases. It could be applied to prostitution and other vice cases, as well as domestic assault.

While some dismiss the 15-word measure as a long shot, its fate is far from certain. "In South Dakota , you never can tell," says Frank Pommersheim, a University of South Dakota law professor. A key factor, he predicts, is Native Americans, "who often feel they get railroaded" by the justice system. They are 8.3 percent of the state's population, but 24.5 percent of its prison inmates.

Source: Jess Bravin, "Initiative Puts South Dakota Law on Trial," Wall Street Journal, August 27, 2002.


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