Journalist, Political Reporter, Cultural Critic
Let’s Hear It For Jury Nullification: Say Hello to New Hampshire Law HB 146
By Alex Henderson
July 5, 2012
Many Americans are unfamiliar with the concept of jury nullification, which refers to jurors refusing to convict a defendant if they believe the charges to be unconstitutional. But thanks to a law that was recently passed in New Hampshire, more jurors in that state might become acquainted with the concept.
On June 18, New Hampshire Gov. John Lynch signed into law HB 146, which says that during a trial, defense attorneys in that state are allowed to inform jurors of their right to nullify a law. What are examples of jurors practicing jury nullification? Let’s say, for example, that a defendant is on trial for operating a prostitution ring, selling allegedly obscene adult films, or growing marijuana; a juror who considers prostitution laws, obscenity laws or drug laws to be unconstitutional and believes that the defendant never should have been arrested in the first place will refuse to convict him/her on the grounds that the charges are unconstitutional. With jury nullification, the juror is not trying to determine guilt or innocence, but rather, is judging the law itself. And while jury nullification won’t automatically result in an acquittal, it can result in a hung jury and a mistrial (which means that the prosecutor may or may not decide to re-try the case).
HB 146 is being applauded by some right-of-center libertarians; Tim Lynch of the Cato Institute, for example, has spoken out in favor of the law. Over the years, a long list of libertarians (including Rep. Ron Paul, Lew Rockwell, Walter E. Williams, talk show host Alex Jones and Libertarian Party presidential candidate Gary Johnson) have been proponents of jury nullification in drug cases. But one needn’t be a libertarian to support jury nullification; some liberals and progressives are proponents as well, including George Washington University law professor Paul Butler (author of the book Let's Get Free: A Hip-Hop Theory of Justice). Butler, who is African-American, has been quick to point out that the War on Drugs is not only bad policy—it is also racist, given how many people of color have suffered from it. And Butler has been encouraging African-American jurors to refuse to convict nonviolent African-American defendants in drug cases. In 2009, Butler wrote: “I have jury duty on July 2, and I can't wait. If I get put on a jury in a non-violent drug case, I'll vote ‘not guilty,’ based on my principles—even if I think the defendant actually did it.”
While liberal/progressives and right-wing libertarians have some sharp differences when it comes to economics, HB 146 is one thing they should agree on: jurors need to be aware of their option to nullify, especially in light of the fact that per capita, the United States incarcerates more people than any other developed country. One of the main reasons for that is the abovementioned War on Drugs, which has been an abysmal failure; people of color have been disproportionately affected by draconian anti-drug laws. And thanks to the disturbing growth of privatized for-profit prisons, the prison/industrial complex has an incentive to become even more vampiric.
Jury nullification has its critics, who argue that nullifying creates a state of anarchy in courtrooms. Some critics of jury nullification will point out that back in the 1950s and 1960s, all-white juries in the Deep South acquitted white defendants of violent crimes against African-American civil rights activists when they knew perfectly well that the defendants were guilty. So yes, jury nullification can be abused in some cases. But it’s important to look at the big picture, and the fact is that jury nullification, if properly applied, is a positive.
Before the Civil War, jury nullification was applied in opposition to the Fugitive Slave Act of 1850 (which said that one could face six months in prison and a $1000 fine for offering food and shelter to a runaway slave). The Fugitive Slave Act of 1850 was an appalling piece of legislation, and jury nullification occurred when abolitionist jurors refused to convict defendants who were on trial for helping runaway slaves.
During Prohibition, jury nullification occurred when jurors refused to convict defendants who were prosecuted under the Volstead Act of 1919 for the illegal distribution and sale of alcohol. Prohibition, of course, was a disaster—and jurors who hated Prohibition practiced jury nullification by refusing to help put people behind bars for selling beer (violations of the Volstead Act were punishable by a $1000 fine, imprisonment for up to six months and forfeiture of any vehicles used to distribute alcoholic beverages).
Opponents of jury nullification will argue that instead of nullifying, civil libertarians should go about trying to change laws they disagree with. But until those unjust laws are changed, defenders of civil liberties need to use every tool that is available to them—and that includes jury nullification. One organization that has supported jury nullification as a means of combating unjust laws is the Montana-based Fully Informed Jury Association (FIJA), which was co-founded in 1989 by Larry Dodge (former head of the Montana Libertarian Party). Although co-founded by a libertarian, FIJA has a diverse membership that includes not only libertarians, but liberals and progressives as well.
The subject of jury nullification was examined by the U.S. Supreme Court in the 1895 case Sparf v. the United States. That year, the High Court acknowledged the constitutionality of jury nullification but ruled that judges were under no obligation to inform jurors of their right to nullify. However, the Sparf ruling did not say that judges couldn’t tell jurors about their right to nullify—only that they weren’t obligated to bring it up. Nor does Sparf specifically prohibit defense attorneys from mentioning it, which means that New Hampshire law HB 146 does not contradict the Sparf decision.
When jurors find themselves being asked to help imprison people for things that should not be illegal, they need to nullify.
If the defendant is on trial for running a call girl operation, nullify.
If someone operating a porn company is battling obscenity charges, nullify.
If someone is facing the possibility of a long prison sentence for growing marijuana plants in his/her back yard, nullify.
Let’s hear it for jury nullification. Let’s hear it for New Hampshire law HB 146.
Alex Henderson is a veteran journalist whose work has appeared in The L.A. Weekly, AlterNet, Billboard, Spin, XBIZ, Creem, Skin Two, The Pasadena Weekly, JazzTimes, Cash Box and a long list of other well-known publications. He can be followed on Twitter @alexvhenderson.
“Bon jour. Je m’appelle Mitt Romney”: Newt Gingrich Se Mette en Colère Parce Que Mitt Romney Parle Francais
By Alex Henderson
Republicans of the neocon/Christian Right persuasion are infamous for hating entire groups of people. They hate African-Americans, they hate Latinos, they hate gay men and lesbians, they hate Muslims, they hate atheists and agnostics, and of course, they hate the French. But if a recent political ad from Newt Gingrich is any indication, the group of people they hold in the lowest regard of all are rednecks.
The target of Gingrich’s ad (which ran in South Carolina) was former Massachusetts governor Mitt Romney, who Gingrich is running against in the GOP presidential primary. In the ad, Gingrich tried to paint Romney as a Massachusetts liberal who is masquerading as a conservative—and in a sloppy attempt to link Romney to Massachusetts Sen. John Kerry, the ad stated that Republicans voters should oppose Romney because, like Kerry, he speaks French. The Gingrich campaign comes up with some damning evidence: an old clip of Romney saying, “Bon jour. Je m’appelle Mitt Romney.” And the ad states, “Massachusetts moderate Mitt Romney—he’ll say anything to win. And just like John Kerry, he speaks French too.”
Mon dieu, quelle horreur! Mitt Romney parle beaucoup francais! Why, he’s probably been to the top of the Eiffel Tower. He’s probably a Brigitte Bardot fan. He probably owns a beret or two and knows all the lyrics to “Mon Legionnaire” and “La Vie en Rose.” If elected president, he would no doubt put a giant bust of Edith Piaf in the White House and change the name of Pennsylvania Avenue to La Rue St. Denis or L’Avenue de Clichy. Ooo la la!
Gingrich’s ad is offensive and bigoted on many levels. It promotes ignorance (there are many reasons to oppose Romney, but his ability to speak French is not one of them), and it sends out a message that education is a bad thing. But most offensive of all is what Gingrich is really saying to the GOP’s white evangelical southern base. Read between the lines, and Gingrich’s message to rednecks is as follows: you’re ignorant, you’re crude, you’re low-class, you’re bigoted, you’re white trash, you’re a knuckle-dragger. So why not vote for the candidate who not only tolerates your bigotry, but celebrates it? Vote for Newt Gingrich, rednecks; he’s one of you.
Actually, millionaire Gingrich isn’t part of the white southern working class his ad is trying to appeal to. Gingrich, unlike millions of poor or lower middle class whites in the southern states, won’t have to worry about lacking health insurance, facing a foreclosure or working a dead-end minimum wage job anytime soon. But Gingrich wants them to think that he has stronger good ol’ boy credentials than a “RINO” like Romney, and according to Gingrich’s anti-Romney ad, being able to speak French (or presumably, any other foreign language) is a sure sign that one is a “RINO.” Gingrich’s ad, however, ends up insulting the GOP base even more than it insults Romney. Gingrich’s ad assumes the absolute worst about the white, conservative small-town Republicans he is trying to appeal to: he assumes that they are ass-backwards and proud of it. Republicans often speak of the “bigotry of low expectations,” and Gingrich’s are obviously quite low if one is white, rural, working class and politically right-of-center.
Attacks on Americans who can speak a foreign language are nothing new coming from neocons and the far right. In 2004, the far right attacked John Kerry for his proficiency in French; in 2007, far-right talk radio neocon Laura Ingraham went ballistic because Sen. Chris Dodd (a candidate in the Democratic presidential primary at the time) briefly spoke some Spanish to a young Latino man during a CNN debate. And when Barack Obama (who speaks some Indonesian) was on the campaign trail in 2008, he was demonized for saying that Americans should learn foreign languages instead of being monolingual. Obama was advocating something that Republicans claim to believe in: more skills, more knowledge and more education. But truth be told, the Newt Gingrichs of the world don’t want a smart, educated electorate; they believe that keeping your voters as dumbed down as possible is one sure-fire way to keep them under your boot.
Unfortunately for the Republican Party, bigotry, divisiveness and anti-intellectualism have their limitations. The more groups of people that GOP politicians alienate—the more the GOP offends African-Americans, Latinos, Jews, gay men and lesbians, non-evangelicals or anyone who can speak a foreign language—the smaller the GOP base will inevitably become in the future. That doesn’t mean that people the GOP alienates will automatically become card-carrying Democrats. A right-of-center American who resents being told that he/she is un-American for learning to speak French, Spanish or German might turn to the Libertarian Party, and even though that doesn’t mean more votes for the Democratic Party, it does mean fewer voters for Republicans.
It’s ironic that as much as Romney has been pandering to the Christian Right extremists on social issues, he still isn’t far enough to the right for them. And equally ironic is the fact that the same Newt Gingrich who attacks Romney for his French-speaking skills has also attacked Sen. Ron Paul for being an “isolationist.” It’s a total contradiction: if “isolationism” is bad, as Gingrich and other neocons claim, then it makes sense for Americans to learn as many foreign languages as possible. Gingrich knows damn well that being multi-lingual is considered a major plus if one would like to work for the CIA, but he is hoping that the good ol’ boys south of the Mason Dixon don’t know that. And the fact that Gingrich does know better makes his attack on French-speaking Americans all the more buffoonish and idiotic.
Gingrich might be contemptuous of liberals and progressives as well as libertarians, but as his anti-Romney ad demonstrates, he reserves his greatest contempt for the white rural Republican base he claims to represent.
Alex Henderson is a veteran journalist whose work has appeared in The L.A. Weekly, AlterNet, Billboard, Spin, XBIZ, Creem, The Pasadena Weekly and a long list of other well-known publications.
The Log Cabin Republicans and the Gay Marriage Debate
By Alex Henderson
When the Log Cabin Republicans set up an informational booth at gay pride events, they know they’ll have some explaining to do. Members of Log Cabin, the United States’ largest organization of gay and lesbian Republicans, expect the usual questions: why would you join a party that, in many cases, is so hostile to gay rights? Why would you ally yourself with the party of Jerry Falwell, Gary Bauer, Pat Robertson and the Christian Coalition?
And their responses are usually along these lines: “Well, Log Cabin is trying to push the Republican Party away from the Christian Right and in a more socially moderate, gay-friendly direction. Yes, Falwell, Bauer and Robertson are part of the GOP, but so are Colin Powell, Rudy Giuliani, Arlen Specter, Christy Todd Whitman, George Pataki and Richard Reardon. Also, we believe that the economic interests of the gay community are better served by the GOP than by the Democratic Party, which taxes Americans excessively.”
There is some validity in those arguments. Yes, the GOP has some politicians who are socially moderate, if not socially liberal--Republicans who support gay rights, abortion rights, sex education and stem cell research. And yes, excessive taxation does penalize financial success in the gay community, which tends to be entrepreneurial, ambitious and upwardly mobile; it’s no coincidence that heavily gay areas like West Hollywood in Los Angeles and Chicago’s Lakeview section have high property values.
But the fact remains that most Republicans--not all, but most--are very much in bed with the blatantly anti-gay Christian Right. And that includes President George W. Bush, who is making the Falwell/Bauer/Robertson crowd ecstatic by calling for a constitutional amendment that would outlaw same-sex marriage nationally--a proposal that has received vehement criticism from Log Cabin.
It remains to be seen whether or not Log Cabin will endorse Bush for reelection; Patrick Guerriero, Log Cabin’s executive director, has stated that the organization will not make that decision until after the Republican Convention in August. Chris Barron, Log Cabin’s political director, has adamantly stated that if Log Cabin doesn’t endorse Bush, it won’t endorse Democratic presidential candidate John Kerry or anyone else (which would include Libertarian candidate Michael Badnarik). Log Cabin is under no obligation to endorse Kerry or Badnarik, but unless Bush quits pandering to the Christian Right--which is unlikely--it certainly isn’t in their best interests to endorse him.
Guerriero hasn’t minced words when attacking Bush’s constitutional amendment proposal, which he angrily denounced as an “attempt to write discrimination into our sacred Constitution” and “an abuse of the Constitutional process.” Guerriero deserves applause for being so outspoken on this issue--especially in light of the fact that Log Cabin members have, in the past, been in denial about Bush’s love affair with the Christian Right. Log Cabin members have been quick to point out that Bush has included centrists like Gen. Colin Powell and Christy Todd Whitman in his administration, but Bush showed his true colors when he campaigned at the militantly fundamentalist Bob Jones University in 2000 and made fundamentalist poster child John Ashcroft his attorney general--and he continues to show them by trying to use the U.S. Constitution to promote an anti-gay agenda.
Quite often, Republicans call for “states’ rights,” but when it comes to gay marriage, Bush hypocritically makes an exception. And ironically, Democrat Kerry is the real supporter of states’ rights on this issue. Although Kerry opposes same-sex marriage, he does support civil unions for gay couples and opposes any efforts to prohibit gay marriage nationally. For gay Democrats, Kerry’s position falls short of ideal but is certainly preferable to Bush’s.
Of course, gay marriage is not the only issue that concerns the gay community. There are plenty of other reasons why the centrist and Libertarian-like Republicans of Log Cabin should oppose Bush’s reelection; the gay marriage issue is only the tip of the iceberg. Many of the things Bush represents--opposition to abortion rights and stem cell research, undermining the separation of church and state--are at odds with the centrist and Libertarian values that Log Cabin espouses. And if Log Cabin members truly believe in fiscal conservatism, they would do well to examine Bush’s record as a reckless spender; for 2004, the White House is looking at a staggering federal deficit of at least $521 billion. Bush, the so-called “compassionate conservative,” has expanded the federal government in a way that would make Lyndon B. Johnson and the Great Society proud.
Log Cabin members have a decision to make. Do they endorse a fiscally irresponsible, socially oppressive president in the name of “party unity?” Or do they take a firm stand against Bush’s alliance with the Christian Right and withhold their endorsement? Log Cabin's credibility and integrity are on the line; if they endorse Bush, their credibility can only suffer. But if they withhold their endorsement, the Log Cabin Republicans will demonstrate that they are, in fact, a principled organization--one that should continue to be a part of the sociopolitical dialogue in the gay community.♦
Arlen Specter's 2004 Campaign
By Alex Henderson
Republican Arlen Specter has been one of the more enduring figures in American politics. Over the years, the four-term Pennsylvania senator, who is running against Democrat Joe Hoeffel in November, has experienced his share of attacks from both the left and the right. Specter angered the far right when he opposed giving Robert Bork a seat on the Supreme Court in 1987 and voted not to oust President Bill Clinton in 1999; he infuriated the National Organization for Women (NOW) when he aggressively attacked Anita Hill’s credibility in 1991. Specter, now 74, has weathered countless political jokes because of his bizarre Single Bullet Theory, which claims that President John F. Kennedy and Texas Gov. John Connally were struck by the same bullet on November 22,1963; Specter survived a tough challenge from Democrat Lynn Yeakel in 1992, winning a third term by only three percentage points.
But the toughest challenge of Sen. Specter’s political career didn’t come from a Democrat or a liberal; it came from fellow Republican Pat Toomey, whom Specter narrowly defeated in the 2004 primary. Toomey, a far-right ideologue from Allentown who had been elected to three terms in the House of Representatives, claimed that the stubbornly centrist/moderate Specter was much too liberal on social issues--that Pennsylvania needed a staunch, unwavering social conservative in the Senate, not someone who “represents the Ted Kennedy wing of the Republican Party.”
When Toomey first announced that he was challenging Specter, pundits underestimated him. How could Toomey (whom the Philadelphia Daily News’ editorial board correctly described as “more of a loony conservative than even Sen. Rick Santorum”) possibly defeat someone with Specter’s seniority, clout and financial resources? But the race turned out to be surprisingly close: 51% of the registered Republicans who voted in that primary decided to give Specter the possibility of a fifth term, while 49% went with Toomey.
It was a Pennsylvania race that had serious national implications and became a referendum on two divergent visions of the Republican Party: the centrist, generally pro-choice and pro-gay rights GOP of Rudy Giuliani, Colin Powell, George Pataki, Richard Reardon, Arnold Schwarzenegger, Olympia J. Snowe and Christy Todd Whitman versus the militant social conservatism of Pat Robertson, Gary Bauer, Alan Keyes and the Christian Right. Toomey’s campaign was praised by far-right ideologues ranging from Bauer to columnist Ann Coulter to Focus on the Family’s James Dobson, and the Club for Growth, a political action committee that supports “starve-the-beast” tax policy, pumped close to $2 million into Toomey’s campaign. As Club for Growth President Stephen Moore saw it, Toomey’s campaign was a stern warning that “Rockefeller Republicans” would no longer be tolerated in the GOP.
Specter, who spent an estimated $12 million during the primary, came out bruised and battered but still alive and ready to take on his next challenge: battling Democrat Joe Hoeffel in November’s general election. By funding the Toomey campaign, the far right unintentionally did Hoeffel a favor: the time, energy, resources and money that Specter put into fighting Toomey could have been spent planning a strategy to defeat Hoeffel. And if Hoeffel wins the general election, Toomey may have--by weakening Specter--helped pave the way for the victory of a generally liberal Democrat over a centrist Republican with a semi-liberal, semi-conservative voting record. But recent polls point to Specter’s resilient nature and show him with a double-digit lead over Hoeffel.
While Toomey tried to paint Specter (who has described himself as a “fiscal-economic conservative and social libertarian”) as ultra-left, some Hoeffel supporters have characterized the incumbent as a staunch right-winger; in September, a letter from the Liberty City Democrats (a gay Philadelphia-based group that is supporting Hoeffel) stated that a vote for Hoeffel would be “a powerful statement against the extreme Bush-Cheney-Santorum policies that Arlen Specter keeps supporting with his Senate votes.” But the evidence suggests that Specter is neither the ultra-liberal that Toomey described nor the ultra-conservative depicted in pro-Hoeffel literature. The American Conservative Union gives Specter a lifetime rating of 43% in contrast to 96% for Toomey, 87% for Rick Santorum and 8% for Hoeffel. Specter received a 60% rating from the ACLU in 2002, compared to 87% for Hoeffel and 13% for Toomey. Those figures underscore Specter’s centrist nature, but to the Christian Right fanatics who backed Toomey, a centrist Republican is no less an infidel than a Democrat, a Libertarian or a French pastry chef.
Not everyone on the right endorsed Toomey during the primary; much to the dismay of the Christian Right, President George W. Bush and even Pennsylvania’s blatantly anti-gay Santorum also campaigned on Specter’s behalf. Both seemed to feel that Specter would have an easier time defeating Hoeffel in the general election, and that a Hoeffel victory could tip the balance to Democratic control of the Senate. And Philadelphia talk show host/columnist Michael Smerconish--generally one of the more reasonable and fair-minded Republican conservatives in talk radio--also endorsed Specter over Toomey, describing the senator as “a guy who might vote a more liberal line than some Republicans would like, but whose intellect, integrity and Senate seniority more than makes up for those votes in which he disappoints.”
Some of Specter’s admirers see the Bush and Santorum endorsements as cause for concern. The day after Specter narrowly defeated Toomey, the Philadelphia Daily News’ liberal-leaning editorial board (which had urged Pennsylvania Republicans to vote for Specter in the primary) asserted (in an effluvium of mixed metaphors), “With Bush credited with pulling Specter across the finish line--and the party contributing big money to his campaign--Specter now owes his soul to the Company Store. And don't think the bill won't come due should Specter win a fifth term.”
But not all friends of the Democratic Party necessarily see it that way. A long list of Pennsylvania Democrats and Democrat-leaning organizations have endorsed Specter over Hoeffel, including Sister Mary Scullion (a Catholic nun/activist who is well known in Philly for her work with the homeless), former Rep. Ron Klink, the Pennsylvania AFL-CIO, the Pennsylvania Federation of Teachers and the Black Clergy of Philadelphia. One of the most interesting Democratic endorsements of all has come from Allegheny County Coroner Cyril H. Wecht, a blistering critic of Specter’s Single Bullet Theory (which Wecht once denounced as “absolute nonsense” and an “asinine pseudoscientific sham”). But despite those attacks in the past, Wecht obviously admires Specter’s work in Congress and asserted: “You don't have to be a good forensic scientist to be a strong U.S. senator."
All those Democratic endorsements of Specter have been troubling to Rep. Bob Brady, chairman of the Philadelphia Democratic Party. Knowing that Specter has been aggressively seeking the support of Democratic ward leaders in Philly, Brady warned that there could be “consequences” for any ward leaders who support Specter over Hoeffel.
Without question, 2004 has been a rough year for Specter. But if the senator does win a fifth term, it will be much more than a victory over Joe Hoeffel; it will also be a symbolic victory for moderate Republicans in general--a victory for Giuliani, Pataki, Colin Powell, Gary Johnson and other voices of reason in the Grand Old Party. A fifth term for Arlen Specter will send out a message that even though pro-choice, pro-gay rights, pro-stem cell research Republicans are a minority in their party, they aren’t extinct just yet.♦
SeXXXandPolitics.com 2012 (Let’s Hear It For Jury Nullification: Say Hello to New Hampshire Law HB 146)
SeXXXandPolitics.com 2012 (“Bon jour. Je m’appelle Mitt Romney”: Newt Gingrich Se Mette en Colère Parce Que Mitt Romney Parle Francais)
Pasadena Weekly, 2004 (The Log Cabin Republicans and the Gay Marriage Debate)
Pulp Syndicate, 2004 (Arlen Specter's 2004 Campaign)