But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD.

Fair game, as were prior remarks that this section has “had a tortured history” (too lazy for a full cite, but it was 1975), and is “obviously is badly in need of careful legislative attention and comprehensive revision and rearranging” (same, 1981).

All true. Sec. 53 has been in legal force in one form or another since the earliest days of the Massachusetts Bay Colony, back when freedom of speech meant “freedom of Biblically-sanctioned Puritan speech” and your mom was just getting started in her storied career as a common night walker. Its manifest “constitutional infirmities” (1988) have been remedied only by acts of judicial triage, most significantly a constructive grafting of the Model Penal Code’s definition of “disorderly” (1975) as well as generously limiting its scope to “conduct which involves no lawful exercise of a First Amendment right” (1976).

And it used to be much worse. The last serious attempt to revise and rearrange Sec. 53 “to simplify, to clarify, to modernize, and to make more precise an ancient statute some of the terms of which were difficult to define and had come to have a flavor of obsolescence” was undertaken in 1941. See Commonwealth v. Lombard, 321 Mass. 294 (1947); See also Commonwealth v. Diamond, 248 Mass. 511 (1924)(tracing disorderly conduct statute’s history from 17th century colonial law to the 1920s).

The 1941 reform decriminalized the conduct of a whole merry band of ne’er-do-wells previously named in Sec. 53’s predecessor. To wit: “rogues and vagabonds,” “common pipers and fiddlers,”persons who use any juggling or unlawful games or plays,” “pilferers,” “persons who neglect all lawful business and habitually misspend their time by frequenting houses of ill fame, gaming houses or tippling shops ,” (these last being, I gather, some kind of Victorian packies) and (my favorite) “persons who neglect their calling or employment or who misspend what they earn and do not provide for themselves.” Lombard, again, but see also Alegata v. Commonwealth, 353 Mass. 287 (1967). (When taken as a whole, it appears that this revision also effectively legitimized the existence of most of Allston-Brighton.)

So that’s all pretty hilariously self-explanatory. What is not is why what is left of Sec. 53 hasn’t gone the way of old chestnuts like the  one that used to criminalize “tramps” (still going strong while Lowell native Jack Kerouac was on the road), or the one about any “person known to be a pickpocket, thief or burglar… acting in a suspicious manner around any steamboat landing [etc],” both of which were  gutshot by Alegata more than forty years ago while Sec. 53 was left on life support.

Yes, our creepy Puritan great-uncle still wanders the old post roads, a cheerless zombie who munches nuts and berries while sprinkling himself with ashes as he mumbles about the Commonwealth of idle and disorderly railers and brawlers and common night walkers we’ve become.

As amusing as this bit of colonial arcana is, it is also a real law with real consequences, under which real people are convicted every day.  I presently have four separate appeals pending in which my clients were charged and convicted under this statute. Three of these four were sentenced to the maximum six months of committed time on the basis of nothing more than things that they said to other people and I still just don’t see why.

Next: prepare to be accosted and/or annoyed!

“It is not the business of the courts to tell Congress what to do about public policy choices, but we are entitled to warn when the machinery that we help administer is breaking down.   The current structure of deportation law, greatly complicated by rapid amendments and loop-hole plugging, is now something closer to a many-layered archeological dig than a rational construct.   The regime is badly in need of an overhaul.”

Kim v. Gonzales, 468 F.3d 58 (1st. Cir. 2006)(emphasis added).

The First Circuit’s evident disenchantment with immigration appeals (may I offer you the paltry near-beer of a fresh half-pint of Justice Lite?) is understandable, especially given the explosion of BIA appeals they’ve had to endure since the passage of the 2002 reforms ostensibly designed to “streamline” the immigration appellate process. (I’m not up for putting together recent numbers tonight, but try here for a comprehensive look at the growing phenomenon as it stood a couple of years ago.) So this we-can’t-tell-you-to-do-something-about-this-but-please-seriously-guys-just-DO-SOMETHING kinda sentiment had to come out sometime.

To be fair, there’s no doubt what it was about this argument that had the First reaching for their revolvers:

“Kim’s first claim–that no crime of violence occurred even though Kim approached the victim with a cocked gun and shot him in the head as the victim fled–might seem frivolous to one not acquainted with immigration law…” (emphasis added)

Couldn’t have snarked it better myself. That last phrase tells you pretty much everything you need to know about what the First Circuit thinks about the current state of the Immigration and Nationality Act, the Executive Office of Immigration Review, the Board of Immigration Appeals, and the immigration bar at large.

But, more importantly, you read that argument correctly: The petitioner claimed that manslaughter should not constitute a “crime of violence” that should be classified as an “aggravated felony” for immigration purposes.

Again: Shooting a man in the back of the head did not constitute a felony in which there was a “substantial risk that physical force may be used… in the course of its commission.”

One more once? Intentional gun violence does not equal a “crime of violence.” Try saying it out loud out a few more times. Pace around the room a little, if that helps. I’ll be here.

Thing is, I have no doubt that counsel stood up and argued this with a straight face and a clean conscience. As the First has to acknowledge, it’s a good argument.

If you think this is all some kind of stupid joke, let me assure you that it is not—and to be the first to welcome you to Immigrationland! Double Scotch?

Of course, we can all agree right here that it’s a crazy argument, or at least that it sounds like one.

See, now, if you came up to me on the street and asked “Hey, would you say that manslaughter is a crime of violence?” my reasoned response would likely be a grunted affirmative just before I politely requested that you step away from my car with that squeegee–because, really, sorry man, but I’m really just all out of change–and rolled up the window and locked all my doors.

Yes, it sounds crazy that anyone would even try to litigate this issue. Squeegee crazy. But the truly insane takeaway is that this is a perfectly acceptable argument that actually passes the laugh test–thanks to some eminently-fixable vagaries of  both the relevant Rhode Island statute and the controlling federal law which defines “crimes of violence”–and that it may very well work next time around if it is properly raised earlier in the proceedings.

(Full disclosure: I recently asked the First Circuit if they might maybe like to consider an appeal which raised a similar question which kind of sounds about 75% as ridiculous as this one when you say it out loud, but I still stand by my argument in that one and will be happy to discuss its merits further with anyone who really wants to know. Plus, it’s not like we were talking about, y’know, manslaughter.)