Other than the completely baseless red herring about the Shepard-Byrd Act somehow threatening free speech, one of the most persistent criticisms of hate crime laws is that motivation does not, or should not, matter when it comes to criminal justice--that we should not establish special categories of prosecution for crimes that are motivated by specific factors. As Star Parker argues in the Dallas Morning News:

What could it possibly mean that the penalty for the same act of violence - for murder - may be different depending on what might be deemed to be the motivation?

Can you imagine a football game where the penalty for roughing the passer is 20 yards rather than 15 if the referee concludes that the violence perpetrated was motivated because the quarterback was [gay]?

That's a legitimate point of view, and the response to that argument is to describe the chilling effect that hate crimes can have on entire communities--an effect comparable to terrorism. The extra penalties, in other words, do not suggest that the victims' lives are worth more; they suggest that there are more victims involved.

This is also the rationale behind laws against rebellion and terrorism, which attach additional penalties to acts that are perpetrated with the objective of targeting the U.S. government or the country as a whole.

It's true that more categories may be added to the hate crimes law down the road. Personally, I would welcome additional protections for veterans, the elderly, children, and the homeless under the same terms as the Shepard-Byrd Act. All we are doing is stating that crimes that target communities need not pose a threat to the U.S. government, or to the country as a whole, in order to have a disproportionate effect on larger communities. The hate crime law, in other words, is not a statement that members of targeted groups are sacred; it is a statement that the government is not, and that every community terrorized by bias-motivated violence should be protected in a way that acknowledges the broader impact of such violence.

And if you still don't believe that LGBTs need special consideration, I would urge you to look at the Transgender Day of Remembrance web site--a record of anti-transgender violence, much of it unprosecuted, that serves as a threat against anyone who colors outside of the arbitrary lines of heternormativity. A country in which a gay couple can't hold hands in public without fear of violence is not a free country--regardless of whether the violence is perpetrated by the government itself, or by vigilantes who are deputized by local law enforcement agencies' selective unwillingness to prosecute.

See also: The Federal Local Law Enforcement Hate Crimes Prevention Act of 2009

Earlier this week, the Obama administration released a memo stating that prosecution of medical marijuana dispensaries and caregivers "is unlikely to be an efficient use of limited federal resources." This is, in effect, a weakened federal version of the "lowest law enforcement priority" statutes adopted in some U.S. cities. While a more strongly-worded memorandum would be ideal (there are far too many loopholes in this one), this will probably reduce, and may eliminate, elective raids on state-legal medical marijuana facilities.

But this is, make no mistake, a temporary accommodation--a limited stopgap measure. Why? Because:

1. The memo clearly states that the Department of Justice is still obligated to enforce federal law, even against medical marijuana dispensaries, and grants U.S. attorneys unlimited discretion to continue to do so.
2. A subsequent administration can change the policy at will. For that matter, the Obama administration can also change the policy at will.

What is really needed is congressional action to revise federal antidrug laws and create a loophole for medical marijuana dispensaries operating in states in which medical marijuana is legal. So far no such legislation has made it through Congress--and it won't, if the recent memo is interpreted as comparably effective.

The memo is a nice start, don't get me wrong. But the real work involved in ending the federal war on medical marijuana, and the real responsibility to do so, rests with Congress.

Related: History of the War on Drugs

Last Saturday, President Obama delivered what may have been the first significant presidential speech on gay rights in U.S. history. In it, he made some promises--some of which he can probably keep, some of which he probably can't. Read more...

Senator Patrick Leahy (D-VT) is usually considered solid on civil liberties issues, but nobody has been solid on the PATRIOT Act--with the exception of Senator Russ Feingold (D-WI), the only senator to vote against it when it first came up in 2001.

Last week, the Senate Judiciary Committee voted 11-8 to accept Leahy's USA PATRIOT Act Sunset Extension Act of 2009, rejecting Feingold's JUSTICE Act and leaving most of the PATRIOT Act's controversial provisions in place.

But the bill does make some modest changes, as the ACLU reports:

[T]here were two amendments included in the final bill - both offered by Senator Feingold - that are victories for privacy: The Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL and the government must notify suspects of "sneak and peek" searches within seven days instead of the thirty days currently outlined in the statute. "Sneak and peek" searches allow the government to search a home without notifying the resident immediately.

That said, it's clear that the Democratic Senate isn't much more committed to dealing with issues of government surveillance than the Republican Senate was. It's incrementally better--five Republicans actually voted against the bill because they felt that it gave too much deference to the Fourth Amendment--but this vote demonstrates, as the inevitable passage of Leahy's bill will demonstrate, that neither major party takes our civil liberties as seriously as it should.

Related: More on Feingold's JUSTICE Act

Tomorrow, the Supreme Court will hear opening arguments in United States v. Stevens. At issue, as explained by About.com: Animal Rights guide Doris Lin, is 18 USC Section 48, which reads:

Title 18 USC, § 48. Depiction of animal cruelty

(a) Creation, Sale, or Possession.-- Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.-- Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions.-- In this section--
(1) the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

I would expect the Court to ask two questions: Does this law serve a compelling interest, and does it use the least restrictive means possible to meet that interest?

My suspicion is that the law will meet that standard, but a more interesting question to me is whether animal cruelty videos, marketed for obvious sexual purposes, would qualify as obscene.

I've been following the Roman Polanski situation lately, and in the course of my reading ran across this very wise statement from his late wife Sharon Tate:

I honestly don't understand the big fuss made over nudity and sex in films. It's silly. On TV, the children can watch people murdering each other, which is a very unnatural thing, but they can't watch two people in the very natural process of making love. Now, really, that doesn't make any sense, does it?

The Supreme Court's definition of obscenity has conventionally been limited to content of a sexual matter, while violent content, even violent content intended to appeal to twisted sexual impulses, has not historically been regarded as obscene. But the word "obscene" has to do with the way material is perceived, not sexual content; it comes from the Latin root obscaenus, meaning "ill-omened." And the Supreme Court has historically held that obscene content is not protected speech.

The trouble I see is that if we live in a world where graphically violent content intended and marketed to appeal to sexual sadism is not regarded as obscene, but video of two people having consensual sex is, then it's reasonable to question our priorities. The short-term answer the Supreme Court will most likely provide in the Stevens case is that the law is acceptable because it serves a compelling government interest. But the more long-term question is what content still qualifies as obscene rather than merely indecent, and how (or if) the Court should make a distinction between the two.

The current definition of obscenity, taken from Miller v. California (1972), holds that material that is not of a sexual nature cannot, by definition, be considered obscene--that violent content such as animal torture videos, for example, cannot be considered obscene even if it is created to appeal to a prurient interest. The Miller standard reads as follows:

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I find this unsatisfactory for many reasons. I'll suggest new wording in a later blog entry, but first I want to hear from you. In a paragraph or less, tell me: How would you define obscenity?

Related: The First Amendment: Text, Origins, and Meaning

Roman Polanski was finally arrested this weekend in Switzerland, and will face charges for drugging and raping a 13-year-old girl in 1977. Ordinarily I would say "allegedly," but I don't have to in this case; he pled guilty, and has never disputed the charges. (You can read the original grand jury testimony here, but I warn you that it is (a) graphic and (b) depressing.)

Much of the blogosphere is up in arms about the arrest. I'm not, because the fact that he has gotten away with what he did for decades is an example of reverse profiling; instead of being targeted for being poor, brown, and marginalized, he has been protected for being wealthy, fair-skinned, and popular.

And none of the arguments against Polanski's prosecution are particularly convincing from a civil liberties perspective. Yes, the survivor, now 45, has forgiven him. That is her right; nobody should criticize her for it. And this would be the end of the story if this were a civil proceeding, where she would be the plaintiff. But criminal trials are not based strictly on the idea of retribution and compensation, like civil trials are; they're based on restoration and deterrent effect. She should not be forced to participate in the trial, but if there is still a viable case, the criminal justice system is doing its job by prosecuting a sexual predator. One of the benefits of the way our criminal justice system handles domestic violence and sexual assault claims is that it does not force the survivor to stand as accuser. That role is filled by the state, acting in the state's interests, which provides a necessary buffer between the survivor and the assailant. The assailant stands condemned, in the parlance of the court, by "The People."

Another argument, featured in a recent Washington Post column by Anne Applebaum, is that "Polanski did not know [his target's] real age." Well, given that he had asked her mother for permission to conduct a photo shoot, he presumably knew she was a minor. But even if he somehow didn't, assuming her contemporaneous account of the assault is accurate (and, again, this has never been seriously disputed), he drugged her with alcohol and Quaaludes until she was unable to resist, ignored the fact that she verbally asked him to stop, and sexually assaulted her. This would have been horrific even if she were an adult, and it is difficult to see how Polanski could have believed that she was.

We're supposed to sympathize with Polanski because he led a very difficult life. As Applebaum puts it:

Polanski's mother died in Auschwitz. His father survived Mauthausen. He himself survived the Krakow ghetto, and later emigrated from communist Poland. His pregnant wife, Sharon Tate, was murdered in 1969 by the followers of Charles Manson...

That's hard to contemplate. That's hard to absorb. I can't imagine what going through all of that might do to somebody's mind. But we're all products of our biology and our environment. We all have things in our past, or in our makeup, that make up who we are and lead us to do the things we do. No human behavior, no matter how horrible, falls outside of this dynamic. These are explanations; they are not excuses. And the fact that Polanski's explanations are tragic, that any decent person will feel some sympathy for what he has had to go through, does not erase his crime.

Roman Polanski is a convicted sex offender who has lived on the run for over three decades. A less wealthy and influential man might have spent those three decades in prison instead of making films that have been, by most accounts, some of the greatest of the twentieth century. That's a lucky break for the film industry, but a stain on our criminal justice system. He should be extradited to the United States, and he should spend some time in prison. He'll only get a slap on the wrist--that's one of the benefits of being Roman Polanski. But if the concept of equal justice means anything to us, he should at least get that much.

Related: Roman Polanski Arrested in Switzerland

Sen. Russ Feingold (D-WI), the only member of the U.S. Senate who voted against the PATRIOT Act in 2001, is now co-sponsoring a bill to revise both its excesses and the excesses of a bill passed last year to permit warrantless wiretapping. The new JUSTICE Act would:

• Put an end to the controversial Section 206 and Section 215 provisions of the PATRIOT Act, which allow for vague "roving wiretaps" and provide warrantless access to library records;
• Correct the FISA Amendments Act (FAA) passed last year, which created a mechanism by which the federal government could surveil international telephone calls with very few safeguards;
• Revise the National Security Letter statute, which allows the federal government warrantless access to financial records and permits them to impose a gag rule on any decision to obtain the records; and
• Revision of Section 6001 of the Intelligence Reform and Terrorism Prevention Act, which currently allows the government to secretly monitor the activities of an individual even if s/he is not affiliated with a terrorist organization.

There are procedures by which federal investigators can investigate possible terrorists with confidential judicial oversight, preserving the secrecy of investigations and ensuring that Fourth Amendment standards are met. The policies the JUSTICE Act would revise certainly make it easier for federal investigators to conduct their work, but they do so by cutting corners and granting broad powers that run afoul of privacy rights. Feingold's bill may or may not pass in its present form, but parts of the bill will make it to the president's desk--and if he signs even half of these reforms, it will represent the first meaningful and voluntary scaling-back of executive power since the Carter administration.

Related: A Short Illustrated History of the Foreign Intelligence Surveillance Act (FISA)

Teresa Wiltz writes on 9/11's eighth anniversary for TheRoot.com:

We lost ... something else, too: an opportunity to be expansive. To shed the fear, to look beyond our narrow borders and see others as we see ourselves. We've lost our civility. Instead, we've turned inward, tearing at each other with oft-times savage intensity, ripping up posters at town hall meetings and calling the president a liar in the middle of a joint address before Congress. After 9/11, there was a lot of talk about, "If we do this, then they will win." And now, looking at our bifurcated nation, I can't help but wonder if they did.

With only a few minor changes in wording, this could have been written by any number of Bush supporters from 2003 onward, when the honeymoon wore off and "irony is dead" no longer ruled the day. As I wrote in 2006, five years after the attacks:

Is nothing sacred? Not in America. Not since the Puritan era. The patriotism of World War I brought us suffrage and the ACLU; the patriotism of World War II brought us second-wave feminism and the civil rights movement. We have never been a nation in lockstep; that's not what the American experiment is about. As we look back on this national crisis, we should remember the qualities that have made America what it is--and we should be proud of those qualities.

This doesn't mean that we were wrong to grieve. It is entirely appropriate to respond to a national tragedy by lowering the flag to half mast. But when a suitable period of mourning is over, we need to raise the flag high again so that we, and the rest of the world, can see it.

People like to talk about how wonderful it was when Congress joined together and sang "God Bless America," but the truth is that self-serving partisan acrimony is the American way, going all the way back to John Adams' attempts to censor Jefferson supporters in 1798. There is no reason to be ashamed of that; self-serving partisan acrimony has made us the most powerful nation on Earth.

Now, it is true that right-wing extremism is on the rise. But it was also on the rise during the Clinton administration. Right-wing extremism is on the rise whenever right-wing extremists notice their influence over our national culture is dwindling. They've gotten angry. They may get angrier still.

But that's the American way. We can't praise anger when it comes from the left, and then condemn it when it comes from the right. If a Democratic congressman shouted "You lie!" during a Bush speech on the Iraq War, I wouldn't have minded, partly because Bush did in fact lie about the circumstances surrounding the Iraq War. It's Rep. Joe Wilson, disputing Obama's claim that the health care reform bill won't cover undocumented immigrants, who's lying this time around; an entire section of the health care bill is titled "No Federal Payment for Undocumented Aliens." That's an error of fact, not an error of methodology. "You lie!" doesn't mean the terrorists won.

Of course, the terrorists did win in one sense: for a time, they terrorized us. Mission accomplished on that front. That doesn't mean we did anything wrong; a country that doesn't respond to an act of violence on that scale with some degree of terror is a heartless country. But it does mean that terrorism initially generated the emotion that al-Qaeda probably wanted.

In the long run, though? Rather than turning into the permanent hawkish, xenophobic political climate that some predicted, in 2008 voters elected a moderately anti-war Democrat, with the middle name of Hussein no less, by the largest margin of any Democratic candidate since 1964.

No, the terrorists didn't win. They didn't terrorize us into becoming a nation of right-wingers, and they didn't terrorize us into permanent, complacent civility either. As a nation, we moved on. The trajectory from members of Congress singing "God Bless America" together on the front steps of the Capitol to Rep. Wilson shouting "You lie!" in a presidential address is a proud one, reflecting a return to the most basic principles of our system of democracy: divisiveness, acrimony, and a profound lack of respect for authority. Yes, God bless America.

See also: "Never Forget"

According to the Innocence Project, 135 death row inmates have been exonerated since the death penalty was reinstated in 1976. But how many people weren't exonerated in time?

We'll never know for sure, but here are two that we know of. Cameron Todd Willingham was executed in 2004 for killing three children in a 1991 fire that had been determined, at the time, to be arson.

A report released earlier this year revealed that the original investigation had gotten it wrong; the fire was accidentally set. Willingham, who had already lost his children, was arrested and imprisoned for over a decade, then killed by lethal injection--and he had done absolutely nothing to deserve his fate.

Also innocent was Carlos De Luna, executed in 1989 for stabbing Wanda Lopez to death despite flimsy evidence. The real culprit, Carlos Hernandez, had been fingered by De Luna but got off scot-free:

Police photographs of the scene reveal (1) a shoe heel print framed in blood (the victim was barefoot when she was killed; De Luna's shoes had no blood on them); (2) a partially smoked cigarette butt near the location of the stabbing (the assailant brought a Winston cigarette pack to the counter before attacking the victim; Winston was Hernandez's brand); (3) a dark red button (Baker told police the killer was wearing a red flannel shirt; according to friends, Hernandez's "winter uniform" was a red flannel shirt); and (4) the murder weapon, an 8-inch buck knife smeared with blood ...

Absent blood, fingerprints, or other physical links to the crime, prosecutors rested their case against De Luna on three things. First was the 911 audio tape of the brutal killing. The tape incensed the jury but gave no hint of who killed Lopez except that it was a Hispanic male. Second was Kevan Baker's night-time identification of De Luna. Baker was prompted by police and shown only a single suspect, not the line-up that standard procedure required. Mug shots reveal that De Luna and Hernandez look strikingly similar. Both were 5'8" tall, 160 pounds, with wavy black hair. Shown pictures of the two men, relatives of both repeatedly mistook one for the other. The only difference was in the two Carloses' m.o. De Luna had many arrests but was never found to have possessed or used a weapon. Hernandez committed most of his crimes with a large knife.

Third, prosecutors said De Luna was a liar. De Luna identified "Carlos Hernandez" as the killer, but - argued the lead prosecutor - Hernandez was "a phantom." In fact, the untruth was the state's. Hernandez was known and notorious to police and prosecutors. Just two months after Lopez was killed, police arrested Hernandez behind a 7-11 Store at night, a knife in his pocket. Around the same time, police informants told Detective Garza that Hernandez had told them he killed Wanda Lopez. When given this information, the lead detective on the Lopez case ignored it. Still worse, one of the prosecutors at De Luna's trial admitted that he knew Hernandez personally. Only three years earlier, he had interviewed Hernandez on suspicion of knifing a young Hispanic woman to death. When arrested for that crime, Hernandez was carrying a buck knife.

In the 10 years between De Luna's execution in 1989 and Hernandez' death in 1999, he stabbed at least two other victims with the same type of knife used to stab Wanda Lopez. One of them--also a woman--nearly died from her injuries.

Proving the innocence of a suspect who has already been executed is difficult, but the Innocence Project has managed to save a few before their execution dates.

Related: Christianity and the Death Penalty

Sometime around 1980, the word "liberal" became an expletive. Now we're witnessing the same thing happening to the word "conservative," and folks on the right are starting to switch to the "libertarian" label instead.

The trouble is that in order to be a libertarian, you have to actually be interested in preserving personal liberties--more interested, at any rate, than either liberals or conservatives are. And this is where things can get tricky, as one DailyKos contributor put it in his
"Top 10 Signs You Might Not Be a Libertarian." My personal favorite:

9. If you believe you have an inalienable right to attend Presidential townhalls brandishing a loaded assault rifle, but that arresting participants inside for wearing a pink shirt is an important public safety precaution, there's a chance you're dangerously unbalanced, but no chance you're a Libertarian.

What are some other signs that you might not be a real libertarian? Post your suggestions in the comments field below.

Related: What is a Libertarian?