I have long felt the concept had some merit. OTOH, it could be trouble. What's your two cents?
http://www.nytimes.com/2002/09/22/national...04&partner=UNTD
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South Dakota to Vote on Extending Jury Rights
By ADAM LIPTAK
In November, voters in South Dakota will decide whether to give tax protesters, medical marijuana users and other criminal defendants a new right. A proposed constitutional amendment would allow defendants there to concede their guilt but nonetheless argue for acquittal on the grounds that the law under which they were charged is misguided or draconian.
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Paul Butler, a former federal prosecutor in Washington who is now a professor at George Washington University Law School, supports the initiative. He said no one disputes the idea that juries have the practical power to nullify laws in given prosecutions, because their deliberations are secret and unreviewable.
"I have always thought that the current state of the law is perverse," Professor Butler said. "It's sort of like a secret power. To the extent these initiatives tell juries about a power they have, I'm in favor of them."
In his academic writing, Professor Butler has encouraged jury nullification in some drug possession cases as a sort of protest against what he says are draconian drug laws that disproportionately affect African-American men. He says he has mixed feelings about drug distribution cases and opposes nullification in cases involving violent crime.
Professor Leipold of the University of Illinois said creating a right to jury nullification while hoping it will be applied sensibly was wishful thinking.
"It's like giving someone a credit card with no limit on it and saying, `Be very careful how you spend it,' " he said.
In colonial times and in the early days of the Republic, American juries played a more active role in interpreting and applying the law. In the libel trial of John Peter Zenger in 1735, for instance, Mr. Zenger conceded that he had printed defamatory matter, which under the law at the time required conviction. His lawyer urged the jury to interpret the law to allow proof of truth as a defense. Mr. Zenger was acquitted.
Professor Leipold said it was a mistake to draw too many lessons from the Zenger case. "All we do is look back on the cool cases," he said. "We don't look back at the cases where juries refused to convict the killers of Native Americans."
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