South Dakota Amendment Would Give Criminal Defendants Right to Argue Merits, Applicability and Validity of Laws 5/3/02

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This November, voters in South Dakota will have the opportunity to pass judgment on what could potentially be the most radical criminal justice reform seen in this country in decades. The potential amendment to the South Dakota constitution, known as the Common Sense Justice Amendment (CJSA-Amendment A), would allow criminal defendants in state courts the right to "argue the merits, validity and applicability of the law, including the sentencing laws."

The South Dakota legal establishment is less than enthused. South Dakota Attorney General Mark Barnett opposes the amendment, as does the South Dakota Bar Association, the South Dakota Trial Lawyers Association and the Unified Judicial System.

Mike Day, head of the state bar, declared war on the amendment in an editorial in the April issue of the bar journal, but did so in a way that must have left readers scratching their heads. Calling the amendment a form of jury nullification, Day cited its use against unjust laws in the past, noting in particular the Volstead Act (alcohol prohibition) and the Fugitive Slave Act. He then noted that, "Advocates suggest that the jury has a role to play by refusing to enforce laws which do not command the support of its citizens."

But then Day argued that legislators are so infallible that jurors who would acquit defendants who attacked the justness of a law would be committing a sin against democracy. "Advocating the right of a jury of 12 non-elected citizens chosen at random to disregard a law passed on by our elected representatives and signed by our elected governor is almost as anti-democratic as one can get," Day wrote. "Amendment A must be defeated. We must preserve the rule of the law in South Dakota," he concluded. Day did not state whether he also considered jurors' resistance to the Fugitive Slave Act to have been anti-democratic.

Attorneys and legislators have reason to be worried, said University of South Dakota law professor Chris Hutton. "This is a form of jury nullification that allows jurors to get around mandatory minimums, drug laws, felony DUIs or any law that is being applied unjustly," she told DRCNet. "If this passes, it could be a political and legal earthquake," she said. "If this passes, it would be open season on the law."

Hermosa, SD, resident Bob Newland is working to make it so. Newland, a one-man wrecking crew who also heads the South Dakota Industrial Hemp Council and South Dakota NORML, told DRCNet the CSJA would allow South Dakotans to get bad laws off the books. "It's tough to get a bad law repealed," he said. "Every year, someone moves to repeal a law, and every year the police, the sheriffs, and the Highway Patrol come to the capitol and say 'yes, there are too many laws, but we really need this one,' and the law remains."

Law professor Hutton implicitly backed Newland. "The laws are not always applied justly," she said, "and our legislators should respond to popular concerns and enact laws that are fairly applied, but that doesn't always happen."

CSJA would force a response, said Newland. "If jury after jury refuses to convict people on certain charges, the prosecutors will eventually quit filing those cases, and they will go the legislature and tell it to fix or repeal those laws. That is hardly anti-democratic."

South Dakota's drug laws are the primary, but not the only, target of the CSJA. "There are a whole range of crimes that create no victims," said Newland. "Since the courts don't allow defendants to argue the merits of those laws at trial, that prevents people from saying 'yes, I smoked a joint, but there was no harm and thus no crime, and this is a stupid law -- you should not convict me.'" Drug offenders are the largest group who might take advantage of the CSJA, said Newland, because "that's the majority of arrests these days." But he added, there is a case in South Dakota of a woman accused of practicing midwifery without a license. There are home-schoolers whom some counties require to register their kids with the school district. There are naturopaths and homeopaths accused of practicing medicine without a license, he added. "Another possible class of defendant is people who don't believe citizens need a permit to carry a concealed weapon," he continued. "In fact, Gunowners of South Dakota has endorsed the CSJA," he said.

Although the campaign is being run on a shoestring and has not been able to pay for statewide polling, Newland evinces a fair degree of confidence. "We're getting support from everyone who isn't a cop, a prosecutor, or a lawyer," he laughed. "Even Rapid City businessmen who distrust me because of my marijuana advocacy understand they could be brought in on bogus charges. This is not a left-right issue," he said.

While opposition has so far been low-key, Newland expects things to heat up as election-day draws near. "We're looking to fund some radio advertising and raise our profile," he said. "And this will be the hottest issue on the ballot as we get close to the election, because no one will give a shit about the candidates by then," he said.

Visit to check out CJSA online.

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Issue #235, 5/3/02 Editorial: Return of the Drug Czars | Former British Drug Policy Head Says Legalize it All | Thai Police Death Squads Accused of Killing Drug Dealers | South Dakota Amendment Would Give Criminal Defendants Right to Argue Merits, Applicability and Validity of Laws | Summer Concert Bust Season Gets Early Start in Alabama -- Rockers Can Take Steps to Protect Themselves, Say Advocates | It's National Drug Court Month -- Do You Know What You're Getting for Your Money? The Government Doesn't, Says GAO | Newsbrief: Washington Says Colombian Military Meets Human Rights Conditions, Frees More Money | Newsbrief: Japan to Outlaw Magic Mushrooms, Loophole Slams Shut | Newsbrief: China Faces Plague of Yuppie Dopers as Disposable Income in Cities Rises | Newsbrief: Prospects Dimming For Vermont Medical Marijuana Bill | Newsbrief: Italian Legislative Body Asks for Medical Marijuana | Newsbrief: BC Marijuana Party Head to Run for Vancouver Mayor | Newsbrief: Eleven House Pages Fired for Marijuana Use -- NORML Offers Them Jobs | Newsbrief: Connecticut Carpenters Strike Over Wages, Drug Testing | Web Scan: De Greiff, Blumenson, Weitzel, GAO, Canada | Errata: Drug War Race | The Reformer's Calendar

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