The Common Sense Justice Amendment (or Constitutional Amendment A on the November ballot), a simply-worded effort to throw a giant monkey wrench into South Dakota's version of the drug war, saw its logic highlighted in a Sioux Falls court case last week even as the two major party candidates battling to be the next state Attorney General came together long enough to denounce the proposed measure. Amendment A, which was drafted by South Dakota Libertarian activist Bob Newland and Fully Informed Jury Association co-founder Larry Dodge, would allow defendants in criminal cases to argue "the merits, validity and applicability of the law, including the sentencing laws."
Matthew Ducheneaux, a paraplegic Lakota who had been arrested in Yankton while smoking marijuana to soothe muscle spasms and who was first granted and then denied the right to offer a "medical necessity" defense by the South Dakota courts, was found guilty of marijuana possession in a Sioux Falls court August 27. The verdict came one day after the Wall Street Journal highlighted Amendment A and one day before attorney general candidates Republican Larry Long and Democrat Ron Volesky warned that Amendment A "would permit a juror to reject a law with which he or she may disagree or to decide that a particular defendant should not be subject to the law."
If Amendment A had been in place, Newland told DRCNet, Ducheneaux could have argued that he should not have been convicted despite the law. "He could have basically said, 'Yeah, I did it, but I didn't hurt anyone, the law is stupid, and you should not convict me,'" Newland said.
"The effort to pass Amendment A comes out of reaction to a particularly stupid drug law, which the Ducheneaux case illustrates," said University of South Dakota political science Professor John Fremstad. "And despite the nightmare scenarios about how it might be applied, it seems like it would mostly be used in drug cases, which is where we have some of our stupidest laws," he told DRCNet. "But Amendment A sends chills down the spine of any judge and any lawyer. I'm guessing that all the respectable opinion in South Dakota is horrified," Fremstad added, expressing no surprise at the bipartisan collaboration by the top cop candidates in denouncing the measure.
And the two lawyers and legislators who are vying to control the state's criminal justice apparatus mustered their best arguments for their four-paragraph press release. A single juror could subvert the law, they wrote. The amendment would "turn the clock back 300 years to European justice," they wrote, raising the specter of one law for the rich and one for the poor. And it would be expensive, they added, because prosecutors would have to retry cases. Lastly, "Amendment A has been rejected in every state where it has been considered, and it should be rejected in South Dakota," Volesky and Long informed the South Dakota electorate.
"Where to begin?" laughed Newland when asked to respond. "First of all, the Common Sense Justice Amendment has not been rejected in every state where it has been considered -- for the simple reason that it has not been considered anywhere before. And what is this stuff about one law for the rich?" Newland asked. "Isn't that what we have now? If Matthew Ducheneaux were a rich man, he could have bought justice. This amendment gives a poor man the chance to argue his case. And how much money has the state of South Dakota already spent prosecuting Matthew Ducheneaux?"
Despite the announced opposition of the South Dakota Bar Association, the South Dakota Trial Lawyers Association, Democratic gubernatorial candidate Jim Abbott, who pronounced it "a terrible idea," and the two attorney general candidates, organized opposition has been slow to appear. "The lawyers haven't done much more than issue statements, and we know of no group not composed entirely of lawyers that has any opinion whatsoever on Amendment A," said Newland.
"This issue has had a low profile," agreed Fremstad. "But the more publicity this gets, the more clear it will be that 98% of the powers that be in both parties say it goes too far. Still, this could be a Jesse Ventura kind of thing. There may well be a lot of people in South Dakota who think the judge shouldn't be able to tell you to enforce a law even if it's a bad law," he said.
Amendment supporters intend to do all they can in the next eight weeks to achieve victory, said Newland, but the treasury is empty. "We've got enough money to get through one more week," he said. "We've received some donations from a few well-known players, as well as a bunch of $10 and $20 donations, but we're running on fumes as we come down to the wire," he said. But Newland is also a master at appearing on op-ed pages in newspapers across the state, as well as an energetic campaigner. (He is running as the Libertarian Party nominee for attorney general, a campaign designed primarily to boost support for Amendment A.)
And there may be support in unexpected quarters. "My wife told me this morning that she was going to vote for it," said USD's Fremstad, "and I just might, too."
Visit http://www.CommonSenseJustice.Us for the Common Sense Justice Amendment home page. Visit http://www.state.sd.us/sos/2002/02GBQpamphlet.htm for the South Dakota Secretary of State's pro and con pages on Amendment A.