Representing the BBA in DC at ABA Day 2018

Each year, representatives from state and local bar associations across the US gather in Washington, DC, for a couple of days of advocacy on behalf of some of the American Bar Association’s top priorities.  Last week, BBA President Mark Smith, of Laredo & Smith, and President-Elect Jonathan Albano, of Morgan Lewis & Bockius LLP, joined their counterparts from the Massachusetts Bar AssociationChris Sullivan and Chris Kenney, respectively—on another whirlwind tour of the Capitol, visiting the offices of 10 of the Commonwealth’s 11 US Senators and Representatives as part of ABA Day.

Although our group had to split up in order to fit all those meetings in, we did get to sit down with both our Senators, Elizabeth Warren and Ed Markey, and Representatives Katherine Clark, Bill Keating, Joe Kennedy, and Jim McGovern.  We also saw staffers for Congressmen Mike Capuano, Steve Lynch, Seth Moulton, and Richard Neal.

This year, we focused our presentations on four main topics:

  • LSC funding

As always, the federal appropriation for civil legal aid, through the Legal Services Corporation (LSC), was at the top of our list.  LSC is the largest source of funding for providers nationwide: There is not a county in the US that is not covered by an LSC-funded agency, and here in Massachusetts, they fund the Volunteer Lawyers Project, South Coastal Counties Legal Services, Northeast Legal Aid, and Community Legal Aid—for a total of about $5.5 million this year.

The $1.3 trillion budget deal reached in Congress earlier this year increased LSC’s line-item, for the first time in years, from $385 million to $410 million.  Even at that level, however, legal-services providers remain woefully under-resourced.  Our request, on behalf of the ABA, was for an increase to $482 million in the coming fiscal year.  That would at least get LSC, and its grantees, back to where they were nine years ago.

LSC enjoys wide and deep bipartisan support in Congress—evidenced by that $25 million increase they received for the current fiscal year, in the face of a White House proposal to defund and shut down LSC’s operations entirely—and our delegation is unanimous in their strong support.  Yet the fiscal climate in DC makes almost any funding increase a challenge, no matter how worthy the cause.

 

  • Criminal-justice reform

This issue was on the ABA’s agenda two years ago, when momentum finally seemed to be growing for bipartisan agreement in Congress.  Since the 2016 election, though, there has been little action, if any, on this front, and the ABA didn’t make it one of their two priorities for ABA Day 2018.  But we chose to add the topic because we believe Massachusetts’ recently-enacted law can be a model for federal action—especially given the overwhelming support it had in the Legislature from both parties.

Our message to the elected officials was that Congress should take a comprehensive approach to reform, including bills that have ABA support on bail reform, sentencing, and juvenile justice.  Taking a piece-meal approach, to first tackle the low-hanging fruit would risk prematurely ending the debate for the foreseeable future by taking the heat off Congress.  What we heard back was that there may be an appetite to pick this issue up again after this fall’s mid-term elections—depending on the outcome.

 

  • Public Service Loan Forgiveness

In 2007, the federal government created the Public Service Loan Forgiveness program, designed to assist with student-loan repayment for those who work at least 10 years at a qualified public-service job.  Now, just as the program is beginning to pay back public-sector/non-profit employees who signed up at the outset and have been making timely payments ever since, it is under threat of cut-backs or even elimination.

Lawyers—who graduate with average debts of $88,000 for public schools or $122,000 for private schools—face some of the most-daunting challenges in considering whether to start their careers in public service.  But our case for the program extends as well to other professionals, such as teachers, first responders, and social workers.  And the program benefits not only those individuals, but their employers, too, since it can be difficult to attract talented applicants to these relatively low-paying jobs.  Of course, society as a whole stands to gain from measures such as this, to encourage students to acquire needed skills and then apply them in public service.

 

  • Immigration Orientation Program

This fourth item was a last-minute addition to our agenda, after the White House announced, just the previous evening, the suspension of a successful program to help applicants navigate the complexities of our federal immigration system.  The program helps to streamline the process and has demonstrated its cost-effectiveness, with the most-recent analysis finding a saving of $17 million as a result.  Nevertheless, as we heard from Rep. Kennedy, anything related to immigration is toxic these days in Washington.

 

A separate part of ABA Day involves the presentation of the Justice Awards, to recognize the work of members of Congress in advancing issues of critical importance to the ABA and the administration of justice.  This year’s event could only be a bit of a let-down from last year, when our own Rep. Joe Kennedy was one of the recipients, but it was still a treat to hear from House Democratic Leader Nancy Pelosi and Pennsylvania freshman Rep. Brian Fitzpatrick.  Leader Pelosi, the former Speaker, was introduced as the highest-ranking female elected official in American history, but said she couldn’t wait to lose that distinction.  She went on to talk about the importance of lawyers in our system, and about her pride that her daughter is one herself.

Rep. Fitzpatrick, a former FBI agent, joked (we think) that he’d left a job where he knew his colleagues would take a bullet for him for one where the opposite is true.  He also tied his belief in civil legal aid for the poor to his Roman Catholic faith, quoting Jesus saying, “Whatever you do for the least of these, you do for me.”  (Although they could not attend the award ceremony, Senate Majority Whip John Cornyn of Texas and California Senator Dianne Feinstein were also honored.)

We’ve said this before, but it bears repeating: We are blessed in Massachusetts to be represented by a delegation that shares these priorities—and, especially, understands the importance of civil legal aid.  Unlike attendees from other states, we were there at least as much to thank those we met with for their continued support as to persuade them on our issues.

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

 

Massachusetts Legislature Passes Sweeping Criminal Justice Reforms

This week, the State Legislature passed the most-sweeping reforms of the Massachusetts criminal-justice system in decades.  The bill (technically, two bills) is now before the Governor, who has ten days to decide whether to sign the legislation into law, veto it, or send it back to the Legislature with recommended changes.

The BBA, which has advocated for changes in several key areas, will be sending a letter to the Governor, urging him to sign the bill into law—in particular, those reform measures that were recommended by our own criminal-justice working group in their No Time to Wait report last October.

Here are some of the main provisions in the bill that the BBA had proposed:

  1. Increase opportunities for pre-trial diversion for more defendants
  • Expands the eligibility criteria for pre-trial diversion to include a wider population of offenders.
  • Amends the CORI laws to permit the removal of offender’s successful completion of pretrial diversion from publicly accessible CORI reports.

2. Adopt significant reforms to the Massachusetts cash bail system

  • Requires that, generally, cash bail should not be ordered unless a defendant can in fact afford to pay the bail set.
  • Follows the emerging national model of pre-trial services reform by:
    • developing programs to minimize unnecessary pretrial detention,
    • reminding defendants of upcoming court dates using modern messaging approaches, and
    • requiring annual reports with aggregated data.
  1. Repeal mandatory minimum sentences, particularly for drug crimes
  • Repeals mandatory minimums for seven non-violent offenses.
  • Limits applicability of the school-zone law, and its mandatory minimum, to cases involving guns/violence/threats, kingpins, or minors.
  1. Ensure that ordering payment of multiple fines and fees does not effectively criminalize poverty
  • Makes more fees waivable and standardizes waiver language across fees.
  • Eliminates:
    • indigent counsel fee for defendants under 18 years of age,
    • parole fees for the first year, and probation fees for the first six months, after release from incarceration, and
    • counsel fees for cases of non-payment.
  • Bars incarceration solely for non-payment of money, or if such a person is not represented by counsel for the commitment proceeding and allows for alternatives to incarceration solely for non-payment of a fine.
  • Increases the monetary credit with which people can “work off” their criminal justice debt when confined for non-payment from $30 to $90 per day
  1. Reassess CORI laws
  • Reduce the time period for defendants to wait to seal records of conviction, from 10 years to 7 years for felonies, and from 5 years to 3 years for misdemeanors.
  • Allows expungement of non-serious cases up to age 21.
  • Require Courts and the Probation Department to seal automatically cases dismissed prior to arraignment or pursuant to a statutory diversion program.

In addition, the bill contains language creating a stream-lined process for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker, which the BBA separately endorsed.

We ask you to join the BBA in urging the Governor to sign the bill and preserve these much-needed evidence-based reforms, to make our justice system fairer and more effective.

Meanwhile, even if the bill is enacted, our work in this field is not finished: You will note that, in spite of the BBA’s long-time opposition to mandatory minimums in general—and our report’s proposal to at least start by eliminating all such sentences for drug offenses—the bill preserves those misguided provisions for higher-level crimes.  We will continue to support efforts to go further toward full repeal in future legislative sessions.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Files Amicus Brief in U.S. v. Brian Joyce

This week, the BBA filed an amicus brief in the case of U.S. v. Brian Joyce on the issue of the government’s motion to disqualify Joyce’s defense counsel. This move has generated a great deal of alarm in the legal community for its potential to significantly interfere with the attorney-client relationship, a bedrock of the fair administration of justice.

Drafted by President-Elect Jonathan Albano, of Morgan Lewis, the BBA brief argues that the Government’s motion to disqualify defense counsel should be denied on both Sixth Amendment and First Amendment grounds, honing in specifically on the First Amendment issues of the right to petition the government and an attorney’s right to speak publicly on behalf of a client.

Case Background

In December 2017, former state senator Brian Joyce was indicted on federal charges for using his office for personal gain, including racketeering, honest services fraud, extortion under color of official right, and conspiracy to defraud the IRS. In February 2018, the government moved to disqualify Joyce’s defense counsel, Howard Cooper, who has served as Joyce’s counsel for a number of years, including during the Massachusetts State Ethics Commission’s investigation, the U.S. Attorney’s Office’s investigation, and in the current case before the District Court.

The government argues that Joyce used Cooper to make several material and false representations to the Ethics Commission and the press, which Joyce intentionally meant to conceal his ongoing criminal conduct that is now the subject of the criminal charges. As a result, the government claims that Cooper has become entangled in Joyce’s cover-up and the perpetuation of the conduct, making him a percipient witness in the case, and requiring his disqualification. The government does not put forth any evidence that Cooper knew the information relayed to him by Joyce was false.

The Brief

The brief begins by noting the BBA’s “strong interest in protecting the sanctity of the attorney-client relationship and in safeguarding the constitutional right of lawyers to advocate on behalf of their clients.” Indeed, we have a long history, stretching back decades, of speaking out on these issues as intervenor and amici.

Over twenty years ago, we intervened at the District Court level and later participated as amici when it made its way to the First Circuit Court of Appeals, in the case of U.S. v. Klubock, 832 F.2d 649 (1986). There, we voiced our support for the ability of a district court to use its supervisory powers to adopt a local rule that would require prosecutors to seek prior judicial approval before serving a grand jury subpoena upon an attorney, for the purpose of obtaining evidence about the attorney’s clients. The First Circuit ultimately agreed that adoption of such a rule was a “sound use” of the court’s supervisory powers, noting the implication of due process and the right to counsel of choice under the Sixth Amendment.

Since then, we drafted and joined many briefs that address the importance of attorney-client privilege and the First and Sixth Amendment rights implicated in the attorney-client relationship, including, most recently, a brief in Commonwealth v. Wade. There, we expressed grave concern when a trial court interpretation of a statue would have required counsel to reveal confidential communications protected by the attorney-client privilege. In this brief we noted that “[t]he attorney-client privilege is critical to the proper functioning of the criminal justice system in Massachusetts. Safeguarding the attorney-client privilege is thus a vital concern for the BBA.”

Given this long history, we felt it necessary to respond to the government’s motion to disqualify Joyce in this case, which, as mentioned, has caused a great deal of alarm raised serious concerns across the legal community in recent weeks. A brief filed by the Massachusetts Academy of Criminal Defense Lawyers, the Massachusetts Bar Association, and the ACLU of Massachusetts, and others expounds on the Sixth Amendment right to counsel implications of the matter. Our brief acknowledges these concerns and hones in on another important right implicated: the First Amendment right of all attorneys to petition the government and to speak publicly on behalf of clients.

You can read the full brief here.

To summarize, the BBA brief posits that the government’s contention that defense counsel in a criminal prosecution can be disqualified, and attorney-client privilege lost, if the lawyer makes allegedly false statement in a submission to a state agency even in the absence of evidence that the lawyer knew the statements were false when made, would violate well-established constitutional protections of the right to petition the government. The First Amendment provides that “Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances,” a right commonly exercised through counsel.

The defense counsel’s presentation of his client’s defense to the Ethics Commission was a protected form of petitioning activity, a protection that extends to statements that are not made with knowledge of falsity, as it is recognized that some false statements will be inevitably covered in order to protect speech that matters. The government’s theory, however, would require that defense counsel guarantee the truth of factual assertions from the client, which would raise serious barriers to the attorney-client privilege and strain the right to petition. The brief provides:

 …the free flow of information between defense counsel and the government promotes the administration of justice. Imposing significant new barriers to pre-charging advocacy – such as the fear that an innocent misstatement will result in disqualification – would be both unconstitutional and contrary to the public interest.

In sum, without proof that a lawyer knowingly shared false information on behalf of the client, the Petition Clause of the First Amendment does not allow for the government to disqualify counsel solely because they repeat the defense.

The brief also addresses the First Amendment protections of a lawyer’s statement to the press on behalf of a client, as the government’s motion to disqualify also relies on the defense counsel’s allegedly false statements to a newspaper reporter investigating Joyce’ s conduct. Here, the brief highlights the Supreme Court case Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), where the Court held the First Amendment protects attorney speech about pending cases and can only be punished upon a showing that the speech will cause a substantial likelihood of materially prejudicing an adjudicatory proceeding. As a result, without evidence that defense counsel knew the information provided was false, the disqualification of counsel for publicly disclosing a client’s position on a matter of public concern would infringe on the First Amendment protections afforded attorney’s statements to the press.

We are grateful to have had the opportunity to weigh in on this matter, so critical to the BBA as an association of attorneys. And we are especially grateful of the significant efforts put forth by drafter Jon Albano, who had this to say about the brief:

We believe the government’s motion threatens the constitutionally protected right of a lawyer to present a client’s defense to courts and to government agencies. A lawyer should not be disqualified for presenting a client’s side of a case when there is no evidence that the lawyer knew the client was not telling the truth.

We will be following the disposition of the motion closely and will update this space with new developments. In the meantime, click here to learn more about our past amicus advocacy.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Submits Letter in Response to New Policy on Prison Visits

Last month, BBA President Mark Smith submitted a letter to the Executive Office of Public Safety and Security (EOPSS) expressing concerns with the new Department of Corrections policy on prisoner visits currently under consideration. The policy would require visitors to be approved and limit the number of individuals allowed to visit, with those in maximum security being permitted to have no more than five names on their preapproved visitors list, inmates in medium security being permitted to have no more than eight, and inmates in minimum security being permitted to have no more than ten. Incarcerated individuals will be allowed to revise their visiting list twice each year.

The letter expresses an understanding of EOPSS’ efforts to improve safety and reduce substance use in prison and jails, where substance use and addiction rates remain high. However, it also highlights that “[r]esearch clearly indicates that prisoners benefit substantially from the ability to maintain familial, social, and community ties while incarcerated, and thus the opportunity to visit with relatives, friends, community leaders, and others is critical to improving their chances to successfully and productively re-integrate into society upon release.”  The letter concludes by seeking a few answers, including the rationale behind the decision to limit the opportunity to change a visitor list to only twice a year, the data and research that was the basis of the new policy, and the specific additional benefits the new policy achieves above the current mandatory search policies.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Submits Letter in Support of Full Bench Review of Petition Seeking Writ of Protection Against Courthouse Immigration Arrests

Today, the BBA submitted a letter to Justice Elspeth B. Cypher of the Supreme Judicial Court (SJC), requesting a full-bench review of a recently-filed petition that asks the Court to ban U.S. Immigration and Customs Enforcement (ICE) agents from making civil arrests in and around courthouses.

Background

Over a year ago, the issue of ICE targeting immigrants for arrest in and around courthouses came to national attention when ICE agents appeared at a courthouse to detain an undocumented woman who was seeking a protective order against her allegedly abusive boyfriend. The rise in accounts of these actions began following the release of new executive orders and instructions on immigration enforcement, which called for an increase in interior enforcement and the expansion of enforcement priorities to cover essentially all immigrants in the country without legal status.

A recent report from the Northeastern University School of Law Immigrant Justice Clinic highlights these increasing accounts, and harmful effects, of arrests of immigrants by ICE officials in and around Massachusetts courthouses. The report showed that ICE is indeed conducting arrests at numerous courthouses in the Commonwealth, and the data compiled in the report relates to ICE activity at twelve different courts. The report further concluded that “ICE is targeting both documented and undocumented immigrants, with no apparent regard for the seriousness of the pending charge. Many of those who have been arrested are longtime residents with U.S. citizen family members.”

It does not appear that immigration enforcement activities, including those in and around courthouses, are set to slow down in the near future. In fact, those jurisdictions that have previously extended protections to immigrants could very well see even more aggressive enforcement. In late September 2017, the Trump Administration announced and carried out enforcement activities specifically targeting regions where deportation officers were denied access to jails and prisons or where ICE detainers were not honored. In their statement on the raids, ICE officials specifically mentioned Massachusetts, in light of the SJC’s decision in Lunn v. Commonwealth, which held that honoring an ICE detainer would be tantamount to an arrest, and that no law in Massachusetts allows a law enforcement official to arrest someone without a warrant for an immigration violation, a civil offense. And in January of this year, ICE issued a directive that revealed its intent to continue these arrests, outlining a specific policy for actions in and around courthouses.

The Petition

On March 15, Greater Boston Legal Services (GBLS), the Committee for Public Counsel Services (CPCS), and the Lawyers’ Committee for Civil Rights and Economic Justice (Lawyers’ Committee) filed a petition In the Matter of c. Doe & Others (SJ-2018-0119). The Petition asks that the Single Justice in the case, Justice Cypher, reserve and report the entire matter for full bench review, so that the SJC may grant a writ of protection that would ban civil arrests, including those civil immigration arrests conducted by ICE officials, for individuals in state courthouses or traveling to and from official matters with the courts.

Petitioners in the case include a juvenile defendant with a crucial noncitizen witness too fearful to appear in court, and seven noncitizen petitioners who are afraid to appear, including: 1) a mother seeking guardianship of her disabled daughter, 2) a tenant claiming to have been illegally evicted from her home, 3) a victim of an assault, 4) a mother entitled to unpaid child support, 5) a victim of domestic violence seeking a restraining order, 6) a long-time lawful permanent resident facing a criminal charge, and 7) a woman pursuing a claim of wrongful dismissal from her job.

The Petitioners “respectfully request that [the] court report the matter to the full bench, so the Court can rule on this matter of vital importance and grant a writ of protection from civil arrest.” Towards this end, the petitioners make four arguments:

  1. Under common law, all those present within the Massachusetts Trial Courts and their environs, and those having business before the courts who are coming to, attending, and returning from those courts, including petitioners, are privileged from civil arrest – including civil immigration arrest.
  2. The common law privilege against civil arrest in and around state courthouses falls squarely within the powers reserved to the states under the tenth amendment.
  3. Application of the common law privilege to civil immigration arrests is essential for noncitizens to exercise constitutional rights that can only be asserted by physical appearance in court.
  4. The Court should issue the writ of protection confirming that the Massachusetts common law privilege against arrest applies to civil immigration arrests as part of its broad, superintendence powers under G.L. C. 211, Section 3.

The BBA Letter

The BBA has been following the issue of ICE in courthouses since the reports first began over a year ago. Last April, at ABA Day in Washington, we had the chance to discuss our concerns with the Massachusetts Congressional Delegation, and we reported on passage of Resolution 10C, which called on Congress to codify courthouses as a “sensitive location” for immigration enforcement purposes, by the ABA House of Delegates at their Annual Meeting in August. We’ve been keeping such a close eye on this matter because of its connection to issues of access to justice and the administration of justice.

Our letter, which does not weigh in on the specific arguments in the petition, but urges for review by the full bench, points to this interest:

For decades the BBA has advocated fiercely for [access to justice and the fair administration of justice] by, among other things, producing reports that make the case for expanding access to attorneys to those who cannot afford it, and by calling for an adequately funded judiciary in the state budget—all because we recognize that fair and equal access to the courts is a core requirement of a well-functioning democracy.

Over the past year, many in the legal community, including bar associations, judges, prosecutors and defense attorneys, and advocacy organizations and elected officials have expressed grave concerns about what ICE enforcement will mean for justice systems throughout the U.S.

For example, Washington Chief Justice Mary Fairhurst wrote in a letter to DHS that “when people are afraid to appear for court hearings, out of fear of apprehension by immigration officials, their ability to access justice is compromised. Their absence curtails the capacity of our judges, the clerks and court personnel to function effectively.” This chilling effect was also highlighted by New Jersey Chief Justice Stuart Rabner, who wrote to then-Secretary of Homeland Security John Kelly that “witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”

Here in Massachusetts, Chief Justice of the Trial Court Paula M. Carey also expressed the potential adverse consequences of courthouse arrests by ICE, writing in a letter to an ICE Special Agent last February that:

“It is essential that [victims and litigants] be free to seek relief from the Court without fear that their presence in Court will be the cause of an immigration enforcement action.  If not, the unfortunate result will be that public safety will decrease, communities will become less safe and perpetrators of domestic violence will feel empowered to abuse their victims with impunity.  Further, individuals who currently come to our Courts to help themselves or a loved one in obtaining a civil commitment for detox or treatment will be reluctant to come forward if they fear immigration consequences. Any increased immigration enforcement in these civil matters would mean fewer applications, more withdrawn cases, and more defaults, resulting inevitably in violence, injustice, and threats to public safety.  In my view, it would ultimately affect the Court’s ability to carry out its mission to provide the protections guaranteed by the laws of this Commonwealth.”

Our letter highlights these concerns, shared by so many across the country, and in a statement on the letter, BBA President Mark Smith stated:

Given the BBA’s long tradition of working to expand and protect access to justice and the fair administration of justice, and the gravity of the issues at hand here, we believe it is important for this petition be reserved and reported to the full SJC bench.

We are grateful to have had the opportunity to weigh in on this important matter and will be following the development of the petition closely. Continue to watch this space for more updates!

 —Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Chief Justice Ralph Gants Makes His Annual Appearance at the BBA Council

Last week, the BBA Council was honored with the presence, at their monthly meeting, of Chief Justice Ralph D. Gants of the Supreme Judicial Court (SJC), who spoke on matters of importance facing the state courts.  As a matter of practical concern, the judiciary budget is always on Chief Gants’s mind, and that was certainly the case at this presentation.

The debate on the Fiscal Year 2019 (FY19) budget formally began last month with the filing of Governor Charlie Baker’s proposal, known as House Bill 2 (or H. 2).  The court system had requested a 2.2% increase this year for maintenance-level funding, which does not include the cost-of-living increase demanded by the unions with which the courts are currently bargaining.  What the Governor has suggested amounts to a 1.8% increase—$3.4 million short of their goal, but still the best starting point that the Chief Justice says has seen in his three-and-a-half years in that position.

However, he noted that the court system is still seriously short-staffed, particularly with regards to probation and courthouse security.  He said his highest priority is hiring more probation officers, especially as the courts are now asking them to be more involved in helping judges craft sentences, providing resources on diversion programs and pre-trial release, and spending more time with individuals suffering from mental-health and substance-use problems.

He said that apart from the maintenance budget, the courts were seeking funding for several modules, including for the specialty courts; for a program to address racial bias in the court system; and for an effort to create a triage program in the Family Court, which would provide initial case management in order to seek alternative resolutions that don’t involve litigation.  Chief Justice Gants noted that the Governor’s proposed budget would fund the Housing Court module, but would do so by taking it out of the rest of the Court’s budget.

On criminal-justice reform—another priority of both the Chief Justice and the BBA—he said that, with the omnibus legislation pending in the State House now in a conference committee, where discussions are being kept confidential, he remains a spectator like almost everyone else.

Chief Justice Gants said that a key area in which the BBA could offer assistance is in advocating for reform to mandatory minimum sentences, to which some of the Commonwealth’s District Attorneys object.  Chief Justice Gants noted that both proposed bills before the conference committee offer some reform in this area, with the Senate’s bill going further than the House’s.  For example, the two bills differ with respect to whether or not separate mandatory minimums for dealing drugs in school zones should be maintained.  Chief Justice Gants noted that there is another stand-alone crime for selling drugs to minors, and that he believes the mandatory minimum sentence should be removed, telling the Council he’s never seen an appropriate case for a separate school-zone charge—one which is used only as leverage in plea negotiations.

He expressed his concern about racial disparities in sentencing, particularly for drug crimes with mandatory minimums.  As he reminded the Council, each department of the Trial Court with criminal jurisdiction has recently developed best practices for sentencing, which the Court is now training judges and probation officers on.

Ralph Gants, Chief Justice of the Supreme Judicial Court, speaking to the BBA Council last week

Another area where Chief Justice Gants and the BBA both lobbied the Legislature is the statewide expansion of the Housing Court.  That effort produced results last year, effective July 1, 2017, and the build-out is well underway.  He said that the Court is in the process of staffing the expansion, and that there would be a new Metro-South division, to be based in Brockton (with discussion ongoing in the hope of opening a housing session in Framingham), while Cape Cod and the Islands would be incorporated into the Southeast Housing Court.

Returning to an issue that has been much in his thoughts of late, Chief Justice Gants said that of the seven Trial Court departments, the Family Court is currently under the most stress.  He noted that this was the department with the second highest percentage of pro se litigants (after the Housing Court), and that the matters litigated in this court are often complex and emotionally taxing.  Furthermore, unlike in other courts, “it’s always Groundhog Day”: Even after a case is closed, the parties often return to court seeking modifications in their situation.  Finally, written decisions in this court are required by law, meaning that judges in the Family Court have a heavy load of writing.  He said that he had asked retired SJC Justice Margot Botsford to study problems in the Family Court and consider what could be done to address them.

Another issue making the Chief Justice uneasy at the moment is the dearth of lawyers to take on care-and-protection cases in the Juvenile Court, particularly in Western Massachusetts.  He said that in cases where the Department of Children & Families seeks to remove a child from the parents’ custody, they have the right to a hearing within 72 hours.  If the parties are indigent, both parents and the child have the right to state-appointed counsel.  However, Chief Justice Gants said that as of October, approximately half of the mandatory hearings in the western part of the state were being postponed, often for one to two months, due to lack of counsel.

Chief Justice Gants expressed his deep concern about this problem, saying that it is unacceptable that people’s rights are not being met due to lack of access to counsel.  He noted that some attempts had been made to address the problem; the Legislature temporarily increased the hourly rate for attorneys in these cases to $75 per hour once 350 hours of casework have been completed, and judges now mention the importance of doing this type of work at all new-lawyer swearing-in ceremonies.  However, it is sometimes difficult to interest attorneys in taking on these cases, as they take place in a closed courtroom, without the opportunity for professional publicity, and can be emotionally draining.  Chief Justice Gants expressed his commitment to solving the problem, saying that the state should not set a precedent of allowing people’s rights to be violated due to lack of counsel.

Chief Justice Gants also said that each court with civil jurisdiction had created a menu of options for alternative dispute resolution—an undertaking he spearheaded, and to which the BBA contributed.  He encouraged Council members to spread the word to colleagues and clients that these options are available.

Chief Justice Gants also mentioned that he was troubled by a recent American Bar Association report on lawyer and law-student well-being, which showed that a disproportionately high percentage of third-year law students experience depression compared to the general population, and that lawyers have one of the highest suicide rates of any profession.  He noted that lawyers and law students may hesitate to seek mental health assistance, especially as in some states mental-health concerns can preclude bar candidates from passing the character-and-fitness test.  He also observed that the bar as a whole may be less community-oriented than it used to be, and that in general people are becoming increasingly isolated due to changes in technology.  He said that he was considering whether the Massachusetts courts should do anything to address this problem.

Finally, Chief Justice Gants spoke about the Massachusetts Access to Justice Commission, which he co-chairs with Susan Finegan of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.  He said that the Commission had created the Massachusetts Justice for All Strategic Action Plan with the help of a grant from the Justice for All project, and that the report was available for viewing on the Commission’s website.  He noted that the report focuses in particular on debt collection, housing, and the Family Court, and said that the Commission will likely seek additional grants to help implement access-to-justice solutions in these areas.  He said that the state cannot continue to rely solely on legal aid organizations to provide access to justice, noting that the Legal Services Corporation is chronically underfunded and that its budget is particularly threatened under the current federal administration.  He said that the Commission hoped to create a virtual court service center, and that he hoped to draw other agencies, such as public libraries and social services organizations, into the process.

In response to a question, Chief Justice Gants said that the annual cap on hours for private attorneys handling care-and-protection cases through CPCS had been raised a few years ago from 1,650 to 1,800 hours per year, if CPCS finds that certain conditions are met.  (Just recently, a special temporary exemption was added by the Legislature, allowing for a 2,000-hour cap in Hampden County only, where the need is most urgent.)  He said that he didn’t think it would be helpful to raise the cap further, especially as lawyers taking on these cases might not have the appetite to do more hours.  Instead, he hopes more lawyers will get involved.

A Council member brought up the issue of pathways to judgeships for women and minorities in the state, particularly as it is increasingly difficult for attorneys to get trial experience, which can pose a barrier in the judicial nominating process.  Chief Justice Gants acknowledged that the number of female judges and judges of color in the state is declining, despite efforts by many, himself included, to increase diversity.  He said that ahead of the annual Bench-Bar conference in April, court leaders will meet with the affinity bar associations to discuss leadership development and pathways to judgeship.  He noted that the Governor’s Council does consider trial experience to be an important element in selecting judges, but agreed that it is hard to get this experience, particularly for attorneys in large firms.  He noted that state court judges don’t typically approach counsel to ask them to undertake individual cases, as federal judges often do.  He also said that a disproportionate percentage of incoming judges are former District Attorneys or public defenders, and that this is not ideal, as it is important to have a diversity of practice setting experience among judges.  He encouraged Council members to share their thoughts with the Court and other stakeholders as to how the pool of candidates for judgeships could be broadened.

We’re always pleased to welcome the Chief Justice to Council—and to share his report with you here.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Council Supports Streamlined Post-Conviction Relief for Human Trafficking Survivors

In January 2014, the BBA launched the Human Trafficking Subcommittee of the Delivery of Legal Services Section. Following a successful Human Trafficking Symposium in June 2013, the BBA formed this Subcommittee so that we could continue to focus on the issue. Alec Zadek of Mintz Levin was selected as a co-chair upon its launch and has remained in the position over the past four years, and he’s now joined by Lavinia Weizel, also of Mintz Levin.

Since its launch, the Subcommittee has hosted a number of programs and developed an interest in a number of policy proposals, including H. 766, An Act to Reduce Sexual Exploitation of Human Trafficking, which Alec and Lavinia helped to draft. This bill, and the similar S.906, An Act to enhance the lives of survivors of human trafficking, establishes procedures for post-conviction relief for individuals that were arrested and convicted of certain offenses while under the control of a trafficker.

Initially, the Human Trafficking Subcommittee, with endorsement from the full Delivery of Legal Services Section, sought BBA support for H.766, but in the meantime, as part of the Criminal Justice Reform debates, both H.766 and S.906 were included as amendments in the respective House and Senate packages. Each of the amendments contained various, mostly minor, modifications and are now in Conference Committee. The Conference Committee will report out one of the versions, combine the two and report out a hybrid, report out an entirely different version, or decline to report out any version or hybrid.

Broadly, all of the proposed versions of the legislation would update the Massachusetts human trafficking laws passed in 2011, to address those instances when individuals operating under the control of a trafficker are arrested and convicted of prostitution-related offenses. More than thirty other states have passed similar laws, which streamline the process of vacatur, and often record sealing, for those who have been trafficked. Existing laws in Massachusetts allow criminal defendants to seek post-conviction relief under the Massachusetts Rule of Criminal Procedure 30(b), but this process is complex, unpredictable, expensive and often challenging for indigent survivors to navigate on their own.

Legislation that addresses this challenge can ease the process through a number of means, including the creation of a presumption, upon a showing that the survivor was trafficked at the time of the underlying offense, that a conviction for one of the relevant offenses was the result of human trafficking. In addition, traditional hearsay rules can be relaxed so that official documentation can be considered by the court, reduce the need for voluminous filing through the use of a standardized form, and provide for the automatic sealing of records in certain circumstances.

Because of the various versions pending, and because advocates like Zadek and Weizel felt any of the proposed language would be a major improvement in the processes of post-conviction relief for survivors, the proposal eventually evolved into a broad statement of support for the creation of a streamlined process, without comment on any specific language. Following an enlightening presentation by Zadek and Weizel, the Council voted to endorse the proposal.

With the vote, the BBA expresses its support for legislation that would create an efficient, and less-onerous, process for survivors to pursue vacatur of certain offenses that result from human trafficking – especially for acts undertaken as a juvenile – and sealing of arrest records and any other criminal records associated with such convictions. From an access to justice perspective, the creation of a streamlined process is crucial to ensure that survivors have an accessible, efficient, and effective means to remove and reduce barriers to rebuilding their lives.

The presence of a criminal record creates major legal and practical barriers for individuals seeking critical life necessities, including, but not limited to, employment, housing, education, and healthcare. The recent BBA report on Criminal Justice Reform, No Time to Wait, discusses the broad array of serious and long-lasting consequences that accompany criminal convictions. For survivors of human trafficking, who often face these barriers on account of criminal convictions for acts completed while under the control of a trafficker, that burden is especially unwarranted. Without this process survivors of trafficking, facing unemployment, housing insecurity, and a lack of access to other crucial services, are more likely to find themselves back under the control of a trafficker or in other difficult or dangerous situations that can undermine their ability to successfully re-integrate into society.

The BBA is proud to support measures that will create meaningful access to post-conviction relief for survivors and will be respectfully urging the conference committee to ensure that this opportunity to improve access to justice for these survivors is not missed. Continue to watch this space for more updates about the progress of these proposals, and the continuing criminal justice reform debates.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Conversion Therapy Ban Update

You may recall that the BBA is continuing its advocacy in support of H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny. These two identical bills would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. Over the summer, we presented testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities, and you can read about that opportunity and why we support the proposed bills here. As we outlined there, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe.

Just this week, we continued that effort by submitting a letter to Speaker of the Massachusetts House of Representatives, Robert DeLeo, respectfully urging him bring the bill to the House floor for a vote. The letter noted the BBA’s own long history of defending principles of non-discrimination and equal protection and focused on a few of the legal aspects of the legislation.

While the future of federal protections for lesbian, gay, bisexual, transgender, and queer (LGBTQ) populations remains under threat, it is crucial the Commonwealth ensures that all residents, regardless of sexual orientation and gender identity, are protected from abusive and discriminatory processes – especially children. Hopefully, these protections will finally be codified this year, and Massachusetts can join the nine other states that currently have laws barring the use of conversion therapy on minors. We will, as usual, keep you posted about the status of H.1190 and S.62.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Council Supports Pro Hac Vice Fee Increase

In 2011, the BBA Council voted to support the Massachusetts Access to Justice Commission proposal to institute a pro hac vice admission fee, as had already been done in 41 other states and the District of Columbia. Following this proposal, the Supreme Judicial Court (SJC) Rules Committee proposed, and the SJC eventually adopted, SJC Rule 3:15, Pro hac vice registration fee, which imposes a $301 per-case fee for out-of-state lawyers seeking to appear in Massachusetts Courts, unless the attorney is providing pro bono legal assistance to an indigent client. Under Rule 3:15, the proceeds go to the IOLTA Committee and are then distributed, in the same proportions as is its other revenue, to the Massachusetts Legal Assistance Corporation (MLAC), the Massachusetts Bar Foundation, and the Boston Bar Foundation, in order to provide civil legal aid to low-income residents of Massachusetts.

Earlier this year, the Massachusetts IOLTA Committee submitted a request to amend SJC Rule 3:15 by increasing the $301 fee to $451, and last month the President Mark Smith submitted a letter to the court expressing support for the proposal, following a BBA Council vote to endorse the request. The increase itself would still place Massachusetts within the range of existing fees, and states like Connecticut and Maine have fees that are above $551.

Overall, the BBA Council viewed the increase as reasonable within the context of the fee rates in other states and also an important way to increase access to justice in the Commonwealth. The initial proposal stemmed from a sharp drop in IOLTA revenue, and unfortunately, projections for IOLTA revenue remain worryingly low, and as we’ve outlined many times there is an ever-increasing need for civil legal aid in the Commonwealth. The fee rise would result in a net increase of nearly $90,000 to legal services programs. We are very thankful of the Court’s long-standing support of access to justice and hope they will bolster these efforts by moving forward with the fee increase.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Brief in Commonwealth v. Lutskov

On Tuesday, the BBA filed an amicus brief in Commonwealth v. Lutskov (SJC-12411), a case in which the Supreme Judicial Court solicited amici last November. Our brief, written by Meredith Shih of Wood & Nathanson, LLP, on behalf of the BBA Amicus Committee and in close collaboration with Amicus Committee Co-Chairs, Elizabeth Ritvo, of Brown Rudnick, and David Siegel of New England Law | Boston, argues that the application of adult mandatory minimum sentences to juveniles violates the Massachusetts Declaration of Rights.

We are happy to have had the chance to respond to the SJC’s Amicus Announcement, especially in a case that touches on a number of issues with a significant BBA history. Keep reading to learn more about the case, the BBA’s background on these issues, and the brief.

Case Background

Appellant Maksim Lutskov was indicted by a Hampden County Grand Jury on December 27, 2000, as a youthful offender for armed home invasion, two counts of assault and battery with a dangerous weapon, armed assault with intent to rob, assault with a dangerous weapon, and assault and battery. He was tried by a jury in the Hampden Juvenile Court in November 2001, adjudicated a youthful offender on all charges, and sentenced to the statutory adult mandatory minimum sentence of twenty years in prison for armed home invasion, with a number of concurrent lesser terms and ten years’ probation. In 2004, the Appeals Court affirmed the adjudication and the SJC denied further appellate review.

Nearly a decade later, in August 2013, the Appellant filed a pro se Rule 30 (post-conviction relief) motion, which was denied in October 2013. Then, in November 2016, the Appellant filed, with the assistance of counsel, the Rule 30(a) motion that is the subject of the case before the SJC. The Juvenile Court denied the motion in April 2017, the appellant provided timely notice of appeal, and the case was entered on the Appeals Court in July 2017. The Court allowed the appellant’s application for Direct Appellate Review in October 2017.

The Rule 30(a) motion before the SJC raises a number of issues, including that the Commonwealth’s trial evidence was insufficient to permit a youthful offender adjudication as the Commonwealth did not offer adequate evidence to show the appellant was of the appropriate age. The SJC’s amicus solicitation, however, focused narrowly on the second argument presented by the Appellant, which is that Article 26’s prohibition on cruel or unusual punishment bars the application of adult mandatory minimum sentences to juveniles and requires individualized sentencing. The Announcement asked:

Where the defendant was convicted, as a youthful offender, of armed home invasion and other offenses, whether his sentence of twenty years in the State prison (the mandatory minimum for armed home invasion) violates article 26 of the Declaration of Rights. See Diatchenko v. District Attorney for the Suffolk District, 466 Mass. 655 (2013), and Commonwealth v. Perez, 477 Mass. 677 (2017).

BBA Background

Though the BBA has not previously adopted a policy position that relates directly to the argument presented in the brief (that the imposition of adult mandatory minimum sentences to juveniles violates Article 26), we do have a long history of speaking out on criminal justice reform, especially in relation to mandatory minimum sentences, and juvenile justice.

The BBA has been opposed to mandatory minimum sentences for decades, advocating for reform since at least 1989 when we released a report calling attention to the harms wrought by misguided mandatory minimums. Our opposition to these sentences stems from the fact that they prevent judicial consideration of proportionality by rendering one-size-fits-all punishment, often involving unduly long sentences which make reintegration and reentry more difficult, and remove the discretion of judges to impose the context-specific individualized sentences that would ensure the punishment does in fact fit the crime.

In addition, the BBA has a longstanding commitment to juvenile justice. In a 1994 report, The Massachusetts Juvenile Justice System of the 1990s: Re-thinking a National Model, a BBA Task Force discussed the differences between juveniles and adults when considering certain legislative proposals to remove judicial discretion in some hearings for juveniles. That report explained why juveniles were treated differently than adults for sentencing purposes and noted that removing discretion and applying mandatory minimum sentence to juveniles “cast aside certain basic tenets of the juvenile justice system as they have evolved for more than a century.”

Also, in 2013, prior to the Diatchenko decision, the Criminal Law Section reached consensus and set forth principles – later adopted by the BBA Council – on three areas of juvenile life without parole sentencing when considering then-proposed bills. One of those principles provides that, before being sentenced to life without parole, the appellant convicted of first degree murder must have the right to an individualized evidentiary sentencing hearing which considers, in addition to the traditional factors required by law, a number of issues specific to juveniles, including the hallmark features of adolescence and the potential for rehabilitation and capacity for change.

Amicus Brief

In laying out the BBA’s interest as Amici, the brief begins by tracing our history of sustained involvement with issues of criminal justice, especially opposition to mandatory minimums, and juvenile justice reform outlined above. Then, the brief moves into the argument, that:

“Under both federal and state constitutional frameworks, the application of adult mandatory minimum sentences to juveniles violates Article 26’s ban on cruel and unusual punishment. To guarantee that all adult sentences applied to juveniles are proportional, juvenile judges must conduct individualized sentencing hearings, taking into consideration the factors established in Miller v. Alabama, 567 U.S.

At the federal level the United States Supreme Court has recognized the constitutional differences between adults and youth in sentencing matters. In 2005, the Court held, in Roper v. Simmons, 543 U.S. 551 (2005) that imposition of the death penalty on juveniles under eighteen years old violated the 8th amendment’s ban on cruel and unusual punishment. Five years later, in Graham v. Florida, 560 U.S. 348 (2010), the Court found an 8th amendment violation in sentencing of a juvenile to life without parole in non-homicide crimes. Then, in 2012, the Court expounded on the factors that make youth constitutionally different from adults for sentencing purposes and held that a mandatory sentence to life in prison without parole applied to a juvenile convicted of murder also violated the 8th amendment.

The Massachusetts SJC has relied on a Miller analysis in deciding similar cases. In 2013, in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013), it held that the mandatory imposition of life without parole for juveniles under eighteen who committed murder violated Article 26’s prohibition on cruel and unusual punishment. The Court, however, also went on to hold that even the discretionary imposition of the sentence also violated Article 26, as it was unconstitutionally disproportionate given the unique characteristics of youth. In a series of cases since Diatchenko, the court has continued to analyze the constitutional distinctions between youth and adults but has left “open for future consideration ‘the broader question whether discretion is constitutional required in all instances of juvenile sentencing.’” Commonwealth v. Okoro, 471 Mass. 51 (2015), citing Commonwealth v. Brown, 466 Mass. 667 (2013)

Most recently, in the Case of Commonwealth v. Perez, 477 Mass. 677 (2017), the SJC held that a juvenile convicted of a non-murder offense or offenses could not be punished more harshly than a juvenile convicted of murder unless, after a hearing that considers the Miller factors, the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder. Applying the constitutional frameworks outlined above, the BBA’s brief urges the court to take the next logical step: answer the question posed in Okoro and Brown in the affirmative, that discretion is required in instances of juvenile sentencing.

Finally, the brief encourages the court to use this opportunity to set forth with clarity what a Miller-type sentencing hearings should require. In Perez, the Court has already provided that such a hearing involves meaningful consideration of three factors:

  1. The particular attributes of the juvenile, including immaturity, impetuosity, and failure to appreciate risks and consequences;
  2. The family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself; and
  3. The circumstances of the … offense, including the extent of [the juvenile’s] participation in the conduct and the way familial and peer pressures may have affected him.

The brief notes that records of the sentencing should clearly reflect that the sentencing judge considered these factors of youth, as mitigating factors, which would ensure the judges take into account the important distinctions of youth and craft proportional sentences within the bounds of Article 26.

A big thank you goes to our Amicus Committee for their thoughtful analysis of the SJC’s amicus announcement, and especially to co-chairs David Siegel and Liz Ritvo and drafter Meredith Shih! Oral argument is scheduled for March 5, and we’ll be sure to keep you updated.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association