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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.”

I realize that the answer of “even the guilty ones deserve the best legal representation” does not always go over very well to the inevitable “But how can you DO that for a living?  How can you represent those people?” questions.  And the “think of it as me keeping the system honest” response sometimes sparks an entirely new discussion about me being anti-cop.  So I like to keep a little arsenal of gut-wrenching stories of the innocent persecuted by the system, so I can at least fall back on “you wouldn’t want this to happen, would you?”  And I have found another one.  I don’t have much time to go into it, but the NYTimes Magazine story about the Norfolk Four speaks for itself.

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!”

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.

First, yes, I realize that his name is Senator Barack Obama, not “O’Bama,” but here in Boston, we like to give things an Irish twist whenever possible. And since I would like to advocate opening this city (and every city, town, and village in the country) to this man and his ideals, I would like to give him a little hometown flavor as a token of love.

Today, my younger brother graduated from the University of Massachusetts at Boston, at which Sen. Obama was the keynote speaker. By a series of fortuitous connections, my family got to sit in the second row VIP section with Deval Patrick, the equally fantastic gubernatorial candidate here in Massachusetts. If these two men could lead the country with a 1-2 punch, I would be in bleeding heart heaven. Luckily, the two men are fast friends. And both have loveable senses of humor: yesterday, Patrick proclaimed that he wanted to win “every single vote on every single ballot” in the election for governor and Obama wrote a tongue-in-cheek epistle to comedian Stephen Colbert, who was delivering the commencement speech at Knox College, where Obama had spoken last year:

Before you deliver your remarks in front of literally millions fewer
people than you would at say, a nationally televised political
convention, I’d like to offer you a few words of advice. First, I know
you’re fond of your Peabody Awards, whatever those are, but I’d
recommend not bringing them. The students at Knox are down to earth and
not impressed by materials possessions like my Grammy Award for Best
Spoken Word Album.

Second, use hand sanitizer after the Pumphandle. Lots of germs there. I
cannot stress this enough.

And finally, don’t forget to bring the Truth. I’d recommend putting it
in your carry-on bag rather than in your checked luggage. O’Hare Airport
is notoriously unreliable.

Obama gave a truly perfect commencement speech and demonstrated why every other hopeful bleeding heart in this country is overly anxious to see him skyrocket in his political career. He spoke of never, ever ceasing to be amazed at the world and - most near and dear to my public defender heart - about taking the path that others may frown upon. He spoke of graduating from Columbia University (where I also happened to graduate from) and, rather than going to Wall Street as so many of his classmates, he set his heart on becoming a “community organizer,” ending up working for an organization of churches in an impoverished Chicago neighborhood for $12,000 a year. It may sound like typical commencement idealism, but it was the way he spoke those words that made me well up (part of that is also attributable to the fact that my little brother was graduating, of course). And it is that power, coupled with that true idealism, that makes Obama the amazing politician that he is. So here’s to hoping - Obama in ‘08 (or ‘12 or whenever).

So don’t let people talk you into the safe thing. Listen to what’s in you and decide what it is that you care so much about that you’re willing to take a chance.