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A couple of years ago, there was a big brouhaha over at Suicidegirls due to the DOJ’s supposed new battle against obscenity - the SG admins took down a whole bunch of photosets in order to either protect themselves against the “wrath” of Alberto Gonzales, or to rile up some diehards to fight the good fight. After all, SG features female-only pictures, with no penetration or anything really explicit at all. At worst (or best, depending on how you look at it), I would characterize the photos as “racy,” with some relatively graphic female-parts shots and some suggestions of bondage and girl-on-girl sex. Then again, SG was at the peak of its popularity and no one really knew the extent to which the Bush administration would show its insanity. But eventually - or so I thought - the outcry died down, the pictures came back, the guidelines were once again relaxed. I had expected from the outset that this “war on porn” was an empty cry - after all, in this day and age, how could such a witch hunt possibly stand up to the First Amendment?

I thought it had all blown over and that everyone had come to their senses and focused on things that actually matter…until I read about the unbelievable obscenity trial starting in LA. The DOJ started out by threatening to bring the wrath on pin-up girls in collars and ended up with a single case involving fetish pictures so extreme as to make potential jurors nauseous.

I have a confession to make - I admittedly was not schooled thoroughly on the First Amendment and I did not even realize that the standard of “it’s not obscene if it has literary, artistic, political, or scientific value” was still in effect. I have heard tales of Supreme Court justices gathered with their clerks in a viewing room to screen porn in order to determine if it was obscene, but that was decades ago. In this age of the internet, mainstream porn stars, and pervasive sexuality, the concept of legal obscenity seems…quaint.

I actually laughed when I read about this trial, not only because it is actually happening, but because the defense is “performance art.” This brought to my mind images of shady men ducking into dark back rooms in order to ogle interpretive dance. I realize that “it’s art” has to be the defense with the legal standard being what it is, but no one is fooled by Ira Isaacs posturing himself as an artist on par with Marcel Duchamp. The guy was selling 1000 videos per month at $30 a pop - he’s a businessman who found a niche in the market and filled it quite handily. But it’s also ridiculous to counter that with the argument that child porn is a lucrative niche, but still indefensible as “art” - in the case of legit child porn, there is a victim, there is an actual person harmed by its production. No one here is arguing (as far as I am aware) that the people in these outlandish movies were participating against their will or that any actual, unconsented-to acts were committed. It’s porn. PORN. No one is sending it direct mail to schools or featuring it on the Yahoo homepage. It exists, but it’s easy to ignore. For all those reasons, I am laughing out of disgust that this is ACTUALLY an issue. There is actually a trial going on. There is actually a trial going on with its own scandal because the judge had some sexual images up on the internet.

Legal experts who had called on Kozinski to recuse himself from the Isaacs case said it wasn’t necessarily a problem that the judge had collected sexually explicit material but that he was reckless in allowing it to be discovered.

This may be my favorite part - it wasn’t that the judge was utilizing his freedom of speech or that he had questionable taste in humor (”One such item is a photo of two women seated in what appears to be a cafe with their skirts hiked up to reveal their pubic hair. Behind them is a sign reading ‘Bush for President.’” - Really?), it’s that he was too technologically-challenged to hide it. Somehow, I think it has more to do with the fact that Judge Kozinski has been a supporter of free speech issues:

“When he learned that there were filters banning pornography and other materials from computers in the appeals court’s Pasadena offices, he led a successful effort to have the filters removed.

“I did some rabble-rousing about it,” Kozinski said in a brief interview last week. He said he was made aware of the issue when a law clerk researching a case was banned from accessing a gay bookstore’s website.

“I didn’t think the bureaucrats in Washington should decide what the federal judiciary should have access to,” the judge said. “I thought that was incredibly arrogant for them to decide on their own.”

The Worcester County House of Correction in Massachusetts is facing a crisis - it is designed to hold 822 inmates, but the current population is more than 1500, “who are packed two to a single cell, and in the infirmary and the gymnasium.” One of those inmates, with the help of Massachusetts Correctional Legal Services, filed a civil rights lawsuit against the jail because of the overcrowding. And US District Court Judge Rya Zobel issued a decree that no more than 1251 individuals be held there at any time. The sheriff sued to vacate the decree, but lost. Then he tried to get more money from the state to expand the jail, but didn’t. So now (in what honestly seems like a move to spark community outcry), he has announced that he will release two inmates for every one that comes in, and will place a number of pre-trial individuals on GPS monitoring systems in lieu of holding them.

“The purpose of the consent decree is to address overcrowding at the Worcester County House of Correction, which is beyond critical,” said Peter J. Costanza, a staff lawyer for the prisoners’ rights group who has worked on the consent decree with the sheriff’s chief legal adviser, Deputy Superintendent Jeffrey R. Turco. “It’s going to be several years before they can get more space at Worcester. In the meantime, something has to be done.”

The district attorney said he is deeply concerned about the release of pretrial detainees and the “one-in, two-out” provision, though he sees no problem in off-loading inmates to other county jails.

Obviously, I am all for letting people out of jail, particularly because there are so damn many of them that are held for ridiculous reasons (like a 19-year-old held for 30 days on a charge of driving after a suspended license - which carries a max 10 days - because he couldn’t post $250 bail). And I am theoretically against the “build more jails” line of thought because it is generally espoused as part of the “lock ‘em all up” cry. But even with a cap of 1251, that’s 400+ above the jail’s capacity. So if building an expansion means that anyone held there would be able to sleep a little better, I am in favor of that too.

I think there just needs to be a fundamental re-evaluation that includes the sheriff, the inmates, and the judges who are setting bail and deciding sentences. It needs to go beyond the DA issuing the trite required press statement and the public just hearing “criminals on the streets!”

There are times when I absolutely adore being from and in Massachusetts - like the moment I found out (while sitting in 1L Contracts class) that the Supreme Judicial Court had legalized gay marriage, and the few minutes last night sitting in the bleachers at Fenway Park and watching my beloved Red Sox hit FOUR home runs in a row against the Yankees. And then there are times when I am saddened - no, ashamed - to see what goes on in this state, such as this tale about Rommel Jones, a man held in prison for FOUR years after his release date.

Mr. Jones was a victim of the complicated rules of parole and good time in the Massachusetts correctional system, specifically the rule stating that consecutive sentences (such as Mr. Jones’s 20 years plus 10 years on-and-after) automatically convert to concurrent sentences once the inmate is placed on parole. This is not something that is easy understood or even widely known, which explains why Mr. Jones didn’t know (despite asking several times) when he was supposed to be released. But you would think that the people in charge of knowing these things would know it. They didn’t. And Mr. Jones, who admits that he has been a “hoodlum” and knows that he suffers from significant mental illnesses, was robbed of four years of his freedom.

On top of that, the Department of Corrections (when they realized their mistake) told him they had only miscalculated by one week. And then they rationalized the lie by saying the release would have had “little or no practical effect on his quality of life” and that telling would even have been cruel because “we could be criticized for explaining this to someone . . . with the history of mental illness that this individual has.”

Pardon my language, but are you EFFING KIDDING ME?

In the four years he was mistakenly detained, Jones missed his mother’s wake, lost contact with his teenage daughter, and endured the daily perils of life behind bars. where his mental illness meant a ping-pong existence between life in a prison cell and the psychiatric wards of Bridgewater State Hospital.

“She doesn’t know me,” Jones said softly over a recent lunch at the Prudential Center, referring to [outgoing DoC commissioner Kathleen] Dennehy. “She’s saying they made a decision not even to say anything because they didn’t think that I would be intelligent enough to understand. That’s horrible. That’s one of the saddest excuses that I’ve ever heard. All she had to do is just try me. I’m more intelligent than they know.”

Mr. Jones didn’t even know about the extent of his over-incarceration until reporters at the Boston Globe contacted him while researching this issue. The research prompted the DoC to actually examine what was going on behind their bars and claimed that they found 25 inmates with miscalculated release dates, none of which had been reached yet. But then they had to admit the full (?) truth, revealing that 13 more people in the last four years had been held from a low of one to a high of 515 days past their release dates.

James R. Pingeon of Massachusetts Correctional Legal Services called this “stunning incompetence.” I’m not even sure that covers it.

I was honestly surprised that now-Governor Deval Patrick made reforming the Massachusetts criminal record system a platform of his campaign - when politicians are obsessed with seeming “tough on crime,” this could have easily been interpreted as “soft on crime.” But, of course, he was highlighting the fact that individuals with criminal records, no matter how minimal, face near impossible barriers to getting jobs, housing, and education, thus only encouraging a cycle of recidivism when there’s no opportunity to truly become a so-called “productive member of society.”

Currently, a person’s record (called a CORI, for the Criminal Offender Record Information) reflects a felony for at least 15 years and a misdemeanor for 10. This is true even if there was no jail sentence, but only probation, community service, or even a dismissal. If he picks up a new charge, the count starts all over again. And then a person has to petition to expunge the record, a system that presents a whole new slew of barriers and red tape. On top of that, CORIs are filled with difficult-to-read code and shorthand. I look at several CORIs everyday and I still come across abbreviations that I have to look up.

Let’s say, for example, that you have just decided to invest in some real estate. You buy an apartment building and begin taking applications for tenants. You request an applicant’s CORI and see the following after a charge of, say, “disorderly conduct”:

C 12/13/02 CWOF SP 12/9/03 VN 2/12/03 DF 8/31/05 D/R VOP FINE $200 10/7/05 DF 12/6/05 D/F CMTD

Would you have any freakin idea what that meant if you hadn’t even had training on CORIs or a list of what each entry meant? All you would see is a bunch of gibberish that seems to show that this person had a lot of involvement with the court. Just the mere fact of entries may be enough to say no to her application, regardless of what it actually meant or what she was doing now.

(By the way, it means that, after arraignment, the case was continued to 12/13/02, at which point the defendant admitted to sufficient facts for a finding of guilty and was given a Continued Without a Finding with supervised probation until 12/9/03 but was served with a violation of probation to be heard on 2/12/03. The person defaulted on that date but the default was removed on 8/31/05 and the violation hearing resulted in there being a fine of $200 assessed. The fine was due on 10/7/05 but the money was not paid by then and the person did not show up in court to explain why it was not paid. That default was removed on 12/6/05 and the person was then committed in jail, likely for seven days at the rate of $30 credit per day).

This week, protesters against the current CORI system marched on the Statehouse to demand that this asinine system of roadblocks be reformed to allow people to get on with their lives, rather than being branded for the rest of their lives.

The system, developed in 1972, was meant to create a database for law enforcement agencies while streamlining people’s personal information into one system, so it could be controlled.

Those calling for reform argued, however, that the setup has allowed employers and housing agencies to use blanket discrimination against anyone with a criminal record, without consideration for the nature of the crime, when it occurred, or whether there was ever a conviction. Plus, there’s no consideration for rehabilitation services that were completed, advocates for reform said.

[…]

Those lobbying for reform have called for reducing the time before a record can be sealed, from 15 to 7 years for a felony, and from 10 to three years for a misdemeanor. Also, agencies other than law enforcement would be limited to viewing records of convictions and pending cases. The proposal would ban employer discrimination if someone’s criminal history would not pertain to the job.

Advocates cited statistics showing that people who have stayed crime-free for seven years have less than a 1 percent chance of re-offending. They questioned why CORI should haunt them when they’ve escaped a criminal past.

Currently, Governor Patrick is looking to attach fingerprint records to CORIs and train employers to read codes like the ones cited above.  But he faces a much steeper uphill battle in his quest to limit CORI access for employers because, of course, people see this as rewarding criminals, not helping people move on from past mistakes.

Using taxpayer dollars to give criminals an easier ride is often a bitter pill to swallow, however. Leominster Mayor Dean Mazzarella supports Patrick’s two proposals, but would oppose anything that would restrict the release of CORI information.

Those who espouse a “lock them up and throw away the key” mentality are missing the fact that 97 percent of Massachusetts inmates will be released, said Len Engles, project coordinator of the Criminal Justice Institute.

I have no problem expressing my deep disdain for former Massachusetts Governor Mitt Romney. He ridiculed the state while he was supposed to be running it, focused from the beginning on becoming President (don’t even get me started on the fact that he’s actually raising a lot of damn money in that pathetic pursuit). One of the things that angered me the most about his reign was his resurrection of a 1913 law that prohibited couples from getting married in Massachusetts if their marriage would be void in their home state. It doesn’t take a genius to see that the law was originally meant to prevent inter-racial marriages, but that shameful discriminatory origin was meant nothing to Mitt, who churned it up to prevent non-Massachusetts-based gay couples from getting married here. He stated that such a thing would mean that Massachusetts would become the “Las Vegas of gay marriages.” He meant this derisively of course, but I can think of few taglines for this state that would make me prouder. In fact, I want a license plate slogan reading just that.

Thankfully, we actually voted in a governor who supports things like, oh, civil rights. And Governor Deval Patrick (who has had my support from the beginning) announced that he wants the pesky old law repealed.

“I know that the 1913 law has sort of smelly origins,” Patrick said. “I think it’s outdated. If it passes the Legislature and comes to my desk, I’ll sign it.”

[…]

Gay activists concede they have a good chance of repealing the 1913 law, but say they are focusing first on defeating the proposed constitutional amendment barring gay marriage.

Oh yeah. We still have to contend with the fact that the last legislative session voted to allow a constitutional amendment to ban gay marriage on the ballot. Of course, they did this under pressure from Ole Mitt, who actually sued the Legislature and asked the Supreme Judicial Court to force them to vote, creating a potentially messy separation of powers clusterfuck. While the SJC obviously said it couldn’t force the legislature to do anything (hello middle school civics), it did shame them into voting. And that vote result was shameful. In order to actually put the ban question on the 2008 ballot, it needs to pass in this session of the legislature as well - so hopefully, it will not.

Repealing this 1913 law would not be a mere symbolic victory, as it could allow couples who marry here to go back to their own states and sue for recognition, forcing the issue to the courts. Some gay marriage opponents apparently see causing “legal chaos” at the top of the gay agenda:

The vast number of states already have laws or constitutional amendments specifically barring same sex marriages. A marriage certificate might let a couple mount a legal challenge, but there’s no guarantee the marriage would be recognized.

That kind of legal chaos is a good argument to keep the 1913 law in place, according to Brian Camenker, leader of MassResistance, a group opposed to gay marriage.

“The whole reason that the gay lobby wants this overturned is for that reason, so they can disrupt the whole situation regarding marriage in other states and cause as much trouble as they can across the country,” he said.

And to that, I laugh. Quite a lot.

Viva Las Gay Marriages!

Even though I’m in self-imposed bar exam exile, I can’t pass up some good old-fashioned civil liberties news. In North Carolina this week, a judge declared that a law - enacted in 1805 - prohibiting unmarried couples from living together was unconstitutional. Sometimes, ancient laws like this remain on the books but are relatively harmless because they are never enforced…until someone comes along and decides he wants to enforce it. We saw this in action when Massachusetts Governor Mitt Romney, in his campaign against gay marriage, dug up a 1913 law (originally aimed at preventing interracial marriages) that prohibits people from marrying in Massachusetts that couldn’t be legally married in their home state. It was a sad day when the Supreme Judicial Court held that the law could actually be used.

But this time, it was a North Carolina Sheriff who, upon discovering that his 39-year-old dispatcher was living with her boyfriend in sin, dug up the old law that stated: “If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor.” He threatened Deborah Hobbs with the loss of her job if she didn’t marry the punk or move out. So she quit…and sued, of course. Superior Court Judge Benjamin Alford relied on the watershed case (affectionately known in private circles as the “Butt Sex Case”) of Lawrence v. Texas, in which the Supreme Court held that sexual relations between consenting adults was constitutionally protected, dammit.

Interestingly, this law wasn’t just sitting around waiting for a good ole boy like Sherriff Carson Smith to dust it off:

[NC ACLU Director Jennifer] Rudinger said that since 1997, the law has spawned about 36 criminal cases in North Carolina. State officials have said the number of people actually convicted under the law — formally known as the fornication and adultery statute — is not clear.

The law also has been used to deny compensation to crime victims, child custody, health benefits, probation and parole, Rudinger said.

And the AP is reporting today that, apparently, the law hasn’t really been struck down and that other North Carolina law enforcement officials can continue to prosecute under it until the decision is appealed…yet the Attorney General’s office says they haven’t decided whether to appeal or not. So try to figure that one out, sinners!

But legal experts argue that the judge’s ruling affects only those involved in the litigation. Law enforcement officers and district attorneys elsewhere in the state still could prosecute couples living together out of wedlock, they said.

“It’s not until it gets up to the Court of Appeals that it applies statewide,” said Dan Pollitt, a constitutional law professor at the University of North Carolina at Chapel Hill.