Sunday, August 02

Whatever you do, don't mess with a homing pigeon or feed trash to a cow. Here's why: Interfering with a homing pigeon can get you 30 days in jail, while feeding "town garbage" to a milk cow can get you two months.

These Massachusetts offenses may sound absurd by 21st-century standards, but presumably there was a need to put them into statutory form at some point in state history. Simply put, they are among the numerous laws that remain on the books but rarely -- if ever -- get enforced.

While these laws are largely irrelevant today, they still carry relatively stiff penalties. Furthermore, the fact that dozens of archaic statutes remain legitimate could lead to arbitrary enforcement, according to those who support the periodic review and repeal of outdated, unnecessary and, in some cases, unconstitutional laws.

"The statute books are loaded up with page after page of old criminal statutes that are no longer relevant," said Cambridge civil rights attorney Harvey A. Silverglate, who last month testified before state lawmakers against the survival of antiquated statutes, including some that could lead to discrimination against minority groups.

While repealing the "pigeon" or "cow" laws isn't high on any legislative to-do list, they typify the sort of out-of-date laws that clutter the criminal code of the commonwealth, where vintage statutes can be resurrected and retrofitted at any time.

Take the case of a rarely enforced 1913 law barring Massachusetts from marrying couples whose unions would not be recognized in their home states. Former Gov. Mitt Romney breathed new life into the statute when he used it to block out-of-state gay couples from marrying in Massachusetts after same-sex marriage was legalized here in 2004.

Legislators repealed the law last August, pleasing gay-rights activists and supporters who lobbied hard against the measure, which originally was designed to prevent interracial marriages.

"This is what happens when some government official finds an obsolete law on the books," said Massachusetts Libertarian Party treasurer George D.J. Phillies, who objects to too many laws, particularly if they are frivolous and unessential. "They find a use for that statute that wasn't intended, and that can lead to all sorts of mischief."

Whether too many outdated or unnecessary laws survive in Massachusetts is subjective, but libertarians and conservatives generally prefer a common-sense, less-is-more approach to government, where citizens are free to be free and can live in a society unencumbered by restrictive rules and regulations.

Organizations such as the Massachusetts branch of the American Civil Liberties Union have identified at least 20 "antiquated and oftentimes unconstitutional laws" that potentially threaten the liberty of the commonwealth's citizens, according to Silverglate, an ACLU board member.

Silverglate said blasphemy and fornication are among the Massachusetts laws that rarely are enforced, yet blasphemy can still earn you a year behind bars and fornication can get you three months.

Silverglate said the "crime" of blasphemy runs counter to a century of American free-speech jurisprudence, while fornication should have been deleted from the books after a 1994 Massachusetts Supreme Judicial Court decision deemed it of "doubtful constitutionality."

"This is one of the oddities of our government," Silverglate said. "The judicial branch has the power to declare a statute unconstitutional, but only the legislative branch has the power to repeal."

Through a spokesman, Berkshire District Attorney David F. Capeless, the county's top law enforcer, declined to be interviewed for this article, citing scheduling constraints. However, Jake Wark, a spokesman for Suffolk District Attorney Daniel F. Conley, said county prosecutors typically do not prosecute people for violating so-called archaic statutes.

But, Wark said, seemingly forgotten laws -- such as the one being used to prosecute a Boston trolley driver who rear-ended another trolley in May -- sometimes can quickly become relevant again.

"The rarity or vintage should not matter," Wark said, adding that a statute's intent is what matters most.

In the case of the trolley crash, which injured more than 60 people, Conley's office enacted a 135-year-old statute that seldom, if ever, has been used, Wark said, emphasizing that statutes should not be stricken from the books simply because they are dusty.

Wark said the 135-year-old statute refers to "gross negligence of a person in control of a train," and it remains unclear when it most recently was enacted.

A bill proposed by state Rep. Byron Rushing, D-Boston, challenges half a dozen so-called blue laws -- statutes primarily pertaining to morality and religion -- that he believes should be repealed or revised.

The bill, formally known as An Act Relative to the Reform of Archaic Laws, would amend or remove unconstitutional statutes from Massachusetts General Law, according to Rushing, thus bringing state law in line with several high-court rulings.

In the past, Rushing has sought to challenge some two dozen archaic laws. But for the 2009-2010 legislative session, he has focused on state laws that linger despite federal and state high-court rulings that have deemed them unconstitutional, said Tracy Choi, a legislative aide to Rushing.

The bill was the subject of last month's hearing in Boston, at which Silverglate testified on behalf of the ACLU. Choi said it was too early to tell when the Legislature might take action on the proposed legislation.

Rushing's bill targets laws that forbid fornication, "subversive organizations" such as the Communist Party, and so-called crimes against nature, among others. In the case of the latter statute, Rushing has proposed removing the word "mankind" from the language of the law, which still would outlaw bestiality in the Bay State.

Phillies, the Massachusetts Libertarian Party treasurer, said the state is overflowing with rules and regulations, which appear to govern every transgression imaginable. And some statutes seem to have been scripted for a singular purpose during a particular epoch, he said, making them feel like one-hit-wonder laws that may never require enforcement.

"The state Legislature is very fond of passing laws for single events," he said, adding that the state generally "does not do a good job of writing laws."

For instance, a statute against "exploding golf balls" sounds very specific, prompting the question of what inspired its passage in the first place. An offender presumably would receive a warning the first time he or she is caught with an exploding ball, since there is nothing on the books regarding punishment for first-time offenders. But if you run afoul of the statute a second time, you could face up to a year in jail.

Other laws smack of the obvious, such as this one: You can only kill a horse if you are licensed to kill a horse; otherwise you could be jailed for three months for "unlicensed horse killing."

A second offense of selling flammable children's sleepwear could earn you 90 days in jail, which sparks the question of what happens the first time you're caught selling flammable kids' sleepwear?

The wording of some laws leaves them open to interpretation, such as "disobeying a dog order," which could result in a 30-day jail sentence. Don't humans give the orders in the man-dog relationship?

If you fail to aid a forest warden, be prepared for a potential two-month stay behind bars. Meanwhile, committing "violations in a Beano game" could land you in jail for a year.

What's Beano?

"I think it's related to Bingo," Phillies said.

The professor is right: Beano was the prototype for Bingo.

Phillies had a better sense of the exploding-golf-ball statute, noting: "Exploding golf balls, they don't really explode. They dissolve into a puff when you hit them."

The balls were the sort of gag items advertised in the back of mid-1950s comic books, along with sneezing powder and other novelties, according to Phillies.

Because some laws are passé, or their meaning isn't immediately evident, even serious legal types can find them amusing. And that's a problem, said Silverglate, the civil rights attorney, who acknowledges that comically outdated laws survive in every state in the union.

These laws, whether outmoded or just ridiculous, make a farce of our legal system, said Silverglate, who raised that issue before the state Legislature's Joint Committee on the Judiciary last month.

In fact, Silverglate testified that the survival of these laws could threaten citizens' freedom.

The attorney said the law about homing pigeons -- also known as carrier pigeons, which once were widely used to carry messages scrawled on scraps of paper -- is obviously obsolete, yet it remains on the books. The law essentially is "the equivalent of wiretapping today," said Silverglate, who would like to see the law books cleared of clutter.

"The law is supposed to be serious," he said, "and these laws make a mockery of it."

Although it is unlikely that someone would be prosecuted for spitting on a sidewalk -- which remains illegal in Massachusetts -- an overzealous police officer or prosecutor could enforce that law, according to Silverglate, who cited spitting cases in Florida that gained notoriety after civil libertarians cried foul.

In Sarasota, police officers who lacked probable cause to search mostly minority men in high-crime areas enacted an ancient city ordinance banning spitting to legally search individuals suspected of drug activity, Silverglate said in testimony before state lawmakers.

Defense attorneys argued that the archaic law led to profiling because the suspects were low-income, minority residents living in high-crime neighborhoods.

Shortly after another spitting arrest, which led to the seizure of drugs, Sarasota officials got rid of the 1908 law, which was intended to prevent outbreaks of disease in the early part of that century.

"As long as the anti-spitting law remains on the books in Massachusetts, there is no reason our police departments cannot engage in similarly overzealous behavior," Silverglate said in his testimony before the state panel.

For Phillies, Massachusetts' marijuana laws are nearly as comical as the state's anti-fornication law. He estimated that at least one-quarter of the state's nearly 6.5 million residents have violated pot laws, and a far greater number are likely to have fornicated.

"If the state enforced the fornication law, they'd be throwing half of the teenage population into Walpole," Phillies said, referring to the large state prison outside of Boston.

To reach Conor Berry: cberry@berkshireeagle.com; (413) 496-6249.