Seeking Great Judges Part 2: An Inside Look at the Joint Bar Committee

Last month we explained the work of the Judicial Nominating Commission (JNC) – the first layer of review for judicial nominees.  Here, we take a closer look at the Joint Bar Committee (JBC), the next critical step in the process.

If the JNC, after their thorough review and vetting process, recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the JBC.   The JBC, formally established in 1961, acts as an independent reviewer to check the qualifications of individuals under consideration for appointment to judgeships by the Governor.  It is governed by a set of rules, which state its purpose is to “review, evaluate and report” on the qualifications of potential appointees, in order to assure a “competent, principled judiciary.”

The JBC is a 25 member committee chaired on an alternating basis by representatives of the Boston Bar Association and the Massachusetts Bar Association.  It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state.  Members of the committee are non-partisan and generally serve for staggered three-year terms.  Participating bar associations are encouraged to appoint persons of diverse gender, age, race, color, creed, ethnic origin and sexual preference, as well as persons with disabilities and attorneys of varying experience.  The BBA’s representatives are currently Edward Colbert, the Committee’s Chair, Sara Shanahan, and Adam Sisitsky.  (Here is a full list of the Committee’s members.)

The JBC assists the Governor and the Governor’s Chief Legal Counsel by conducting its own independent review of judicial candidates in a confidential capacity, evaluating their integrity, character and reputation, knowledge of the law, professional experience, temperament, diligence, financial responsibility, and public service.   Upon completion of its due diligence process, the JBC calls a confidential, blind vote of its members to determine whether a candidate is “well-qualified,” “qualified,” “not qualified,” or there is “insufficient information to evaluate” the candidate.  A quorum of 13 members of the JBC is required to vote on a judicial candidate’s qualifications.

In the event that the JBC has returned a vote of “not qualified” or “insufficient information,” the chair must then immediately notify the candidate of the vote and afford the candidate an opportunity to be interviewed by the committee.  Following an interview, the JBC members may then reconsider their prior vote, if the majority of the members present and voting elect to conduct a revote.

After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Judicial Nominating Commission, or to re-open the application process.  When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council for their approval.

As we said in last month’s post, the process is built to ensure that only the best candidates become judges.  However, it all begins with you.  In order to have the best judges at the end of the process, the best candidates need to apply at the beginning.  We hope that you will spread this message to anyone who may be considering applying to become a judge in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Sentences on Sentences: Reform and Dookhan Update

It was a week for sentencing discussions at the BBA.  First, an update on the Dookhan drug lab scandal, an issue we’ve spoken on a number of times (see past posts: Drug Lab Crisis Points to Larger Issues in the Criminal Justice System, Getting it Right: A Bargain at Any Price, Catching Up: Have  You Heard?), especially through the work of our Drug Lab Crisis Task Force.  The Task Force examined the facts regarding the lab crisis and related matters and released their report in early 2014, just months after chemist Annie Dookhan pled guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence for her deliberate mishandling of evidence in the Hinton drug lab.

Our Task Force made three recommendations:

  • Prosecutors, defense counsel, judges, and policy makers should continue the extraordinary joint efforts that were mounted in the aftermath of the Dookhan misconduct to promptly resolve open criminal cases related to Dookhan’s misconduct.
  • The Commonwealth needs to further enhance the auditing and oversight of drug labs and consider similar steps regarding all forensic services.
  • The Governor and Legislature ought to review funding levels for forensic services to ensure that these services are adequately funded and staffed and that effective auditing and oversight is maintained.

On Monday, in keeping with our report’s first recommendation above, the SJC held in Bridgeman v. District Attorney for the Suffolk District that individuals who pled guilty in cases with evidence that was affected by the Dookhan scandal cannot be charged with a more serious offense, nor can they receive a harsher sentence than they were originally given, if they are granted a new trial.  According to the Globe, the holding was celebrated by the defense bar and civil libertarians, but was a source of concern for prosecutors, as “ ‘convicted defendants now have nothing to lose by withdrawing their evidence-based admissions of guilt.’ ” We will continue to monitor developments related to this situation and ongoing litigation.

Shortly after learning of this decision, we were pleased to welcome Chief Judge Patti Saris of the U.S. District Court, District of Massachusetts to our Council meeting.  Having previously worked for U.S. Senator Ted Kennedy, and as a Magistrate and Massachusetts Superior Court Judge before her nomination to U.S. District Court, Judge Saris spoke with a wealth of knowledge about sentencing issues from both legislative and judicial perspectives and with state and federal experience.

In addition, she chairs the U.S. Sentencing Commission (“Commission”), an independent agency in the federal judicial branch established in 1984 and tasked with establishing sentencing guidelines and practices for federal courts, advising and assisting Congress and the executive branch in developing effective and efficient criminal policy, and collecting, analyzing, researching, and disseminating a broad array of information on crime and sentencing issues to all branches of government, academia, and the general public.  It is bipartisan by design in order to consider all viewpoints and to effectively gain buy-in from all legislators.

The Commission was a driving force behind the 2010 Fair Sentencing Act, which made a number of reforms to federal sentences for drug offenses, most notably reducing the disparity between sentences involving crack versus those involving powder cocaine.  When preparing this bill, the Commission examined mandatory minimum sentences and found that they were mostly affecting small-time criminals – drug couriers and street dealers — not the drug kingpins that Congress intended to target.  Other considerations, such as the expense of prisons and the exceedingly high rate of incarceration in the United States, also led to those reforms.

As a result the bill reduced sentence lengths, up to 20-25% for some offenses.  It also had a built-in one-year delay until its effective date, so probation offices could increase their staffs, because shorter sentences are most effective at reducing recidivism when prisoners are released into a system of support and monitoring.

Since the Act’s enactment, the Commission has studied outcomes, finding that the recidivism rate is no higher for people released from prison up to two years earlier than they would have been under the old sentencing regime.  In addition, they found that the rate of guilty pleas and cooperation with plea agreements remained the same, meaning shorter sentences did not have a negative effect on prosecutorial bargaining power or result in more trials.  In all, the Commission’s process and the bill’s provisions have been a clear success.

Chief Judge Saris also told the Council about three major sentencing reform bills gaining traction with Congress.

  • The Smarter Sentencing Act of 2015 would further reduce mandatory minimums and its reductions would also have retroactive effect. In addition, it would provide a safety valve for low-level, non-violent offenders who admit to their role in crimes, lifting the mandatory minimum sentence in favor of judicial discretion.
  • The Corrections Oversight Recidivism Reduction and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act creates a system similar to a parole board, permitting the bureau of prisons to return to the sentencing judge and ask for a reduction in sentence length. The idea is to give a second chance to people who have reformed in prison and, as a result, save money by shortening their sentences.  The bill has already passed the Senate Judiciary Committee, yet there are some concerns about the risk assessment tool it uses to determine which prisoners are best suited for sentence reductions.  The tool relies heavily on socioeconomic factors such as whether the prisoner is educated or has a home or supportive family.  It also puts a lot of pressure on judges, who have the final say (and potentially blame) as to who qualifies for a sentence reduction.
  • The Justice Safety Valve Act of 2015 retains mandatory minimum sentences, but gives judges the freedom to stray from the mandatory terms if they find strong mitigating factors.

These bills provide legislators with different options for sentencing reform.  Not everyone is opposed to mandatory minimum sentences.  Many support the uniformity they provide.  However, there appears to be consensus that reform is necessary because current mandatory minimum sentences are too long and applied too broadly.

Underlying this debate are concerns about recidivism and new evidence that longer prison sentences may actually be detrimental to a person’s ability to re-enter society and avoid future criminal activity.  Some states are working on diversion programs, giving people who have committed serious crimes, but who don’t have major records, the ability to take part in lengthy probation terms.  If they successfully complete all of the tasks required of them, these individuals can have their records wiped clean.

In addition, collateral consequences play a role in recidivism discussions.  These include limits on securing housing and jobs, as well as other obstacles that prisoners face upon their release.  There is an increasing understanding that these collateral consequences may be so harsh that they prevent people from successfully re-entering society.  Addressing these problems may become a focus of future bills.

In all, we learned a lot about sentencing this week, from an update on the Dookhan case to a Council presentation by Chief Judge Saris on federal legislation.  We at the BBA continue to oppose mandatory minimum sentences and advocate for sensible, cost-effective reforms.  We are committed to monitoring reforms in this area and keeping our members informed of any progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

The Public-Private Pairing Behind Civil Legal Aid

As we look forward to the Boston Bar Foundation’s (BBF) popular Passport to Pairings event (for a fun two minute diversion, our Voices of the Bar page asks, “What Is Your Favorite Dynamic Duo?”), it is worth considering legal aid from the same perspective.  In many ways, both monetarily and in service, civil legal representation is a public-private partnership.

We talk all the time about the importance of legal services funding and the findings of our Investing in Justice report.  The report gives the full picture of legal services funding, explaining how a drop in IOLTA, due largely to low interest rates, coincided with a growing number of residents struggling to get by, and the increased complexity of laws and the courts.  All of this combines to place significant limits on access to justice for many individuals facing challenges relating to life necessities, such as shelter or personal safety.  These problems persist despite the combined efforts of the public-private partnership.  The report also proves that additional funding for legal aid results in a positive return on investment, saving the state on back-end costs such as emergency shelter and medical services, while also stimulating the economy by bringing more money into the state through federal benefits.

The Legislature, representing the public aspect of this partnership, has long supported civil legal aid.  On Tuesday, the Senate Ways and Means Committee released its budget proposal.  We were pleased to see increases over the House budget for CPCS ($3 million more) and the Trial Court (about $11 million more – enough to rule out the need for staff reductions) and a slight increase over last year’s funding level for legal services funding ($268,500).  The Senate process continues with floor amendments.  Senator William Brownsberger is sponsoring a $5 million amendment, seeking a total of $20 million, for the MLAC line item (0321-1600) from the Senate.  We strongly urge you to contact your Senator today and ask him or her to vote for the Senator Brownsberger MLAC amendment.  This may be our last chance to make the case for civil legal aid during this budget cycle.

From a funding perspective, both the Legislature and the bar support legal aid.  To start with, attorney registration contains an “opt-out” contribution whereby attorneys donate $50 to support legal aid unless they opt-out.  This alone raises about $1.1 million annually for MA IOLTA.  Some attorney fees also provide modest additions, such as roughly $200,000 for pro hac vice admission of out-of-state attorneys to take cases in Massachusetts.

While the Legislature has generously funded civil legal aid for decades, attorneys also voluntarily contribute millions of dollars.  They give this money to fundraising drives of agencies like Greater Boston Legal Services (GBLS) and Community Legal Aid (CLA) as well as to foundations like the BBF and the Massachusetts Bar Foundation.

Unfortunately, these foundations historically granted money they received from IOLTA funds.  They continue to do so, but as IOLTA has dropped, so has their funding capabilities.  As a result, the total legal services grants awarded by the BBF have plummeted from just under $2 million in FY2007 to $825,500 in FY2014.  To address this huge shortfall, the BBF increased the amount of its own funds directed to civil legal aid grants by over $100,000 in each of the last several years, to the point that it funded over 46% of its FY14 grants.  Since 2009, the BBF has dedicated over $2.2 million of its own funds to legal services grants.

In addition, the private bar also donates millions of dollars’ worth of pro bono hours.  Under the Massachusetts Rules of Professional Conduct, lawyers are expected to donate at least 25 hours per year of their time to provide free legal services to those in need.  Very few professions have any comparable standards, and Massachusetts lawyers embrace this role.  We conservatively calculated that in 2013, lawyers in the state provided in excess of 82,000 pro bono hours through four legal aid providers alone, at a value of more than $17.6 million.  This is likely only a fraction of the full amount of pro bono services provided in the state.

As you can see, both sides are doing their part:  The Legislature generously increases MLAC funding each year, even during tough economic times, and the private bar donates its time and money.  Yet there is still a long way to go.  With 58,000 individuals turned away from legal services providers in the last year due to lack of resources, everyone needs to step up.  We applaud the Legislature for the generous monetary support we know they will provide in FY16.  We urge the bar to keep up the great work and to take on one more task – please ask your Senator to vote for Senator William Brownsberger’s $5 million budget amendment in the Senate.  With this public-private partnership, we know civil legal aid can’t lose!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Essential to our Mission: Funding the Judiciary

Amid all the talk of civil legal aid thanks to the buzz created by our Investing in Justice report, we wanted to take a moment to examine one of the BBA’s other long-term priorities, the court system.  Advocacy for the courts has long been at the top of our agenda, as it so clearly fits into our mission – advancing the highest standards of excellence for the legal profession, facilitating access to justice and serving the community at large.  The courts are absolutely essential to all three of those efforts and of course make up one of our three co-equal branches of government.  BBA President Julia Huston emphasized all of this in her speech last week at an SJC event for bar association presidents, which you can read more about in next week’s Let the Record Show.

Under the leadership of Chief Justice Paula Carey and Court Administrator Harry Spence, the Trial Court is well on its way to implementing its strategic plan and has long maintained the high level of justice to which people in Massachusetts are accustomed.  With recent advancements such as court service centers, specialty courts, and the increased use of technology, it is easy to forget that just a few years ago the courts were in severe trouble.  Taking a huge funding hit in the Great Recession, the courts are only just emerging from some of the toughest times they have ever faced.  Some key information on these struggles (even more available here):

  • Trial Court staffing levels are still 16.5% lower than they were in FY08, dropping from 7,565 to 6,316. Clerical (26.7%) and probation (32.5%) positions have each plummeted since 2001.  This is a major problem as both positions are critical to the smooth functioning of the justice system.  In particular, probation officers are now tasked with doing more than ever before.  This is due in large part to current social sciences research demonstrating that probation supervision, when properly administered, can be more effective at reducing recidivism than incarceration.  However, with such low staffing levels, probation officers are pushed to their limits.  With ever expanding caseloads they struggle to give all their probationers the time and oversight they need.  Limiting the Trial Court budget not only hurts probationers, who receive less individualized attention, but also creates a potential public safety crisis.
  • Reduced funding and staffing levels have decreased the amount of service courts can provide. In 2011, due to insufficient staffing in roughly 40 clerks’ offices, courts began limiting their public hours of operation.  The hours reduction was required so that court staff could address backlogs and process new business, prepare cases for court sessions, and complete case reviews, docketing, and case processing.  While the reduced public hours scheme allowed the courts to limp along, it was not without an attendant reduction in access to justice for the public.  Such measures can save money, but they also place a burden on the public, reducing access and the courts’ physical presence in the community.  The courts were unable to resume full functionality until September of 2013, and without continued funding to retain current staff, it may become more difficult to maintain courthouses.
  • Shoestring budgets can limit the courts’ ability to build on successfully-implemented innovations. To cite two recent examples, specialty courts and programs such as HOPE/MORR, an intensive probation model that has been proven effective at reducing recidivism by providing immediate short term sanctions for probation violations, are wonderful, but not free.  Limited resources have also curtailed the expansion for Court Service Centers, which help self-represented litigants navigate the justice system, and limited language access programs, meaning non-English speakers may face even more challenges in presenting their cases.  Finally, a lack of funding has delayed technology deployment such as e-filing and digital document preservation services as well as electronic public records access.

So where are we now?  The Trial Court requested $642.4 million as a maintenance budget (the amount required to continue normal service) and offered up a number of additional “modules” (optional items to help bolster innovation, with funding tied to each specific program).  The Governor’s budget, which generally level funded nearly all line-items in an effort to fix a $1.8 billion deficit, provided only $603.3 million for the Trial Court.  The Courts responded with a statement explaining that this funding amount would jeopardize the jobs of roughly 550 employees and severely limit its ability to deliver justice.

The House Ways & Means Committee provided a substantial increase over the Governor’s proposal at $620.4 million.  After its members adopted a floor amendment for an additional $2 million, the final House budget for the Trial Court was $623.0 million.  While we were pleased to see $20 million more in the House over the Governor’s budget, this funding level would likely result in disruptions in court operations and services.

With the Senate set to release its Ways & Means budget next week, we are hoping to see further increases on that side, with $628.4 million being the minimum necessary to maintain current staff levels, though additional funding for modules would allow those important programs to move forward.  There is a possibility that the Trial Court budget will be before the Conference Committee which will ultimately determine the final funding amount from the Legislature.  After that it’s on to the Governor who will have ten days to review the budget.  He can approve or veto the entire budget, veto or reduce specific line items, veto outside sections or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.

There are still a number of steps left in the budget process, but the end is fast approaching.  We ask that you take a moment this week or next to contact your State Senator (Don’t know who that is? Look them up here) and urge him or her to support appropriate funding for the courts.  We will, as always, continue to advocate for court funding and keep you updated on the latest budget developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Seeking Great Judges: An Inside Look at the New Judicial Nominating Commission

We were pleased to see some BBA leaders appointed to key roles when Governor Charlie Baker announced the make-up of his reconstituted Judicial Nominating Commission (JNC).  In case you missed it, BBA President Emeritus Paul Dacier and former BBA Council Member Roberto Braceras were both named to top posts – Dacier as Chair and Braceras as Co-Vice Chair of this important group.

You may also recall that about one month ago we discussed some changes to the JNC by Governor Baker.  Executive Order #558, released in late January, changed the language used to rate candidates (from “highly qualified,” “qualified,” or “less qualified” to “well qualified,” “qualified,” or “not qualified”, in keeping with the language used by the Joint Bar Committee) and increased the threshold voting percentages for approval, with 50% (up from 40%) now required to advance to the “due diligence” stage, and 2/3 (up from 60%) now required for recommendation to the Governor.

But what exactly is the JNC, and why is it so important?  Most people are familiar with the Governor’s Council and their role as the final review of judicial candidates, but few know of the work that takes place before this step.

In briefest terms, the JNC is a 21-member statewide, non-political, non-compensated body that screens applications for judicial and clerk-magistrate positions.  All 21 members are appointed to one-year terms by the Governor, and serve at his pleasure, meaning they can be removed at any time without cause.

Qualifications to Serve

The executive order tasks the Governor with appointing Commissioners who “reflect diversity of race, gender, ethnicity, background, geography, and among Commissioners who also are members of the bar, various practice areas and sizes.”  Commissioners must have “demonstrable knowledge of the judicial system and experience in the needs and operation of the Massachusetts courts.”  Those who are members of the bar must have at least seven years of practice experience.  Those who are not must “be familiar with the attributes that best qualify a person for appointment” to the bench.

Amongst the 21 Commissioners, the Governor also appoints three leaders – the Chair and two Vice-Chairs – who preside at all meetings.  The executive order incorporates a variety of measures intended to ensure the fairness of their process, including prohibitions on making political contributions, and on any action that suggests a lack of impartiality.

How it Works

The JNC provides the first layer of review for judicial nominees.  It is formally tasked with “identify[ing] and invit[ing] application by persons qualified for judicial office.”  Thus Commissioners are constantly on the hunt for talented individuals from all parts of the state who reflect the full diversity of its citizens.

Commissioners conduct a blind initial review of the applications of all candidates meeting minimal baseline qualifications – years of service, residency, citizenship, etc.  After discussion, and with approval of at least 1/3 of the Commissioners casting a vote, with a quorum present, an applicant is invited for an interview.  Only after applicants have been granted or rejected for an interview are their names revealed to the Commissioners.

The Commissioners must then interview the approved candidates, potentially multiple times, until they make a decision on whether or not to proceed with due diligence inquiries.  Interviews last 20 minutes and are conducted by the entire JNC at a regularly scheduled meeting.  Moving beyond this step requires approval by at least ½ of the Commissioners casting a vote amongst a quorum.

Essentially “due diligence” requires a thorough researching of the candidate, their history and qualifications.  Commissioners seek comments from judges, attorneys, and others about the applicant, and do not limit their inquiries to listed references, frequently going “off-list” to seek out other individuals who know the applicants professionally and personally.  It is often a time-consuming and arduous process, requiring Commissioners to comb through extensive amounts of information and prepare written reports of their findings.

Finally, after completing due diligence, the Commissioners deliberate and discuss the relative strengths and weaknesses of candidates, both in general terms, and specifically as they relate to the open judicial positions.  A two-thirds vote is required for the Commissioners to forward an applicant’s name to the Governor’s Office to be considered for nomination.  They typically provide between three and six names for each vacancy.

What Follows

After the JNC recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the Joint Bar Committee.  The JBC, formally established in 1961, is a 25 member committee chaired on an alternating basis by representatives of the BBA and the Massachusetts Bar Association.  It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state.  Members of the committee are non-partisan and generally serve for three-year terms.  The JBC works with Governor’s Chief Legal Counsel in a confidential capacity to conduct its own independent review in order to provide recommendations as to whether a candidate is well qualified, qualified, not qualified, or there is insufficient information to evaluate the candidate.  The committee then communicates its vote the Governor’s Chief Legal Counsel for the Governor’s consideration.  After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Commission, or to re-open the application process.  When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council.

In sum, we are proud of the judicial nomination, review, and appointment process in place in Massachusetts.  It assures judicial candidates are given a fair and thorough review.  We are also impressed with the care that goes into crafting each step of the process.  This year’s JNC is a great example as its 21 members are experienced and successful lawyers from across the Commonwealth, the legal profession, and demographic groups.  They are representative of the state and the profession, and therefore also of the type of bench we would like to see.

While there are not expected to be many judicial openings in the near future, it is important to take the long view on this thorough and deliberative process.  As a result, it will be tough to ascertain Governor Baker’s judicial appointment style over the next few months, or maybe even the next year, but we are confident that he will continue to espouse the high bar for diversity and excellence set by Governor Deval Patrick.

The JNC serves a crucial function in the recruitment and review of judicial applicants.  However, their recommendations can only be as good as the applicants they receive.  A great and diverse bench emerges only from a great and diverse candidate pool.  The Governor has done his part by creating a remarkably diverse JNC under all metrics from geography to demographics to practice field and size.  Now, if you’ve given any thought to pursuing a judgeship or know someone who would make a great judge, the next step is yours!  We have laid out the process here, but it all starts with the application.  To maintain the high standards set by judges in Massachusetts, we need the best candidates to continue to apply.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Advocating on the Road, Learning at Home: BBA in D.C. and Chief Justice Gants at 16 Beacon

The past week or so has been busy for Government Relations.  You can read here all about the House Ways and Means Committee’s budget proposal, which was released last Wednesday and will be debated on the floor starting this Tuesday.  (Spoiler alert: You can help support amendments that have been filed to help fund civil legal aid and the judiciary.)

In addition, BBA leadership went to Washington, D.C., to take part in ABA Day last week, and SJC Chief Justice Ralph Gants spoke to the BBA Council earlier this week – both of which you can read about here…

Each year in April, representatives from state and local bar associations, as well as ABA leaders, come to D.C. from across the country to take part in ABA Day – which is really a misnomer, as it involves three days of trainings, briefings, and, most importantly, lobbying of our respective Congressional delegations.

This year, the BBA was represented by President Julia Huston and President-Elect Lisa Arrowood, who met with nine of our 11 Senators and Representatives (or in a couple of cases, their staffers).  They were there to advocate for the ABA’s two main issues this year: increased federal funding for civil legal aid through the Legal Services Corporation (LSC), and federal legislation to get smarter on crime by reducing the impact of mandatory minimum sentences for federal offenses and diverting juveniles from the justice system.

We were quite fortunate in that we found near-universal support on both of these fronts from our legislators.  It would be easy – and comforting – to assume the Massachusetts delegation is typical in this regard, but we were disabused of any such notion at a pre-lobbying breakfast briefing, where participants learned that many Congressmen have actually voted to completely de-fund LSC.

This year, President Obama is proposing to increase LSC’s appropriation from $375M to $452M, but we were warned repeatedly that any increase will face a difficult battle in a Congress that is largely disinclined to approve spending hikes.  Many of our representatives lamented the current state of relations generally in Congress, where achieving any kind of consensus is challenging at best.

Nevertheless, sentencing reform – the other main ABA Day issue – holds out the prospect of genuine bipartisan agreement.  Whether it arises from a concern that our correctional system is too costly to sustain in straitened fiscal circumstances or from a belief that public safety would be better served by a different approach toward reducing recidivism and treating substance abuse, there is a growing recognition that we are incarcerating too many people for too long.  (With only 5% of the world’s population, the U.S. has 25% of its incarcerated population.)  The possibility that a majority in Congress could coalesce around evidence-based reforms to re-think our sentencing practices was a bright spot in the discussions we had with elected officials.

On a related note, we were struck by how concerned members of Congress are about the opiate crisis in Massachusetts, as well as substance abuse and addiction generally.  Recent headlines on these issues have certainly not escaped their attention, and they are very focused on identifying practical solutions to help victims and families struggling with these problems.

Back at 16 Beacon, we heard from Chief Justice Gants, who discussed some of the things that have been keeping him busy (aside from hearing and deciding cases, of course): the budget (see above), revisions to the Code of Judicial Conduct and the Massachusetts Rules of Professional Conduct, a “menu of options” for cost-effective civil litigation, the new voir dire law, changes in disciplinary rules for clerks … and sentencing reform on mandatory minimums, on which he’s taken quite a public stand.

Like the ABA, as well as the BBA, the Chief Justice opposes these sentences generally.  In speaking to the Council, he said they result in sentences that are longer than judges think appropriate.  By giving back to judges the ability to apply “hand crafted” sentences suitable for each defendant and each case, we would be freeing up money spent now on incarceration that could instead fund rehabilitative programs, what’s known as justice reinvestment — for example, programs like specialty courts and HOPE/MORR.  The latter, currently being tried as a pilot project, applies short but swift consequences to probation violations.

The Chief Justice has called on the Legislature to drop mandatory minimums in drug sentences, leading to a public debate on the issue with Suffolk DA Dan Conley, currently the President of the MA District Attorneys’ Association.  At Council, Chief Justice Gants distributed a chart he’d compiled that shows how prison and jail populations have exploded in Massachusetts since the 1980’s, resulting in incarceration rates that are several times higher than 50 years ago, even though violent-crime rates are roughly the same as then, and property crime has declined dramatically.

The Chief Justice has also ordered an internal Trial Court review of sentencing practices.  Each department with criminal jurisdiction currently has a group looking at best practices in sentencing, and he is expecting draft reports from them Thanksgiving, with an interim report coming in May or June.

These groups are exploring all aspects of sentencing, including:

  • The option of pre-trial diversion to connect defendants with treatment, services, and supervision, where appropriate, as an alternative to prosecution.
  • The relative value of sentencing defendants to time in a state prison versus a house of correction.
  • Use of probation – which research shows may become counter-productive if it extends too long. Furthermore, they are assessing which conditions work best – including carrots versus sticks, and the possibility of reducing a term of probation if no violations are incurred over a certain period of time.
  • Analysis of social-science findings on what works best to reduce recidivism.
  • Determining what is the best way to assess the risks and needs of each individual, without biases. For example, one standard factor in calculating a defendant’s risk is his or her criminal history.  Yet the same actions that land a black youth from a city in the criminal justice system might have lesser ramifications for a white, suburban youth.  So a risk/needs assessment that simply assigns a score for criminal history may indicate that the former poses a greater risk than the latter, based on identical behavior.

We will continue to follow the debate over mandatory minimums, and to support the Chief Justice in his advocacy.

Justice System FY16 Budget Update

This week the House Ways and Means Committee released its FY2016 budget proposal.  The $38 billion budget made targeted new investments in early education, substance abuse prevention, and behavioral health.  We were pleased to see some increases in judiciary line items, and applaud the House Ways and Means Committee for all their hard work, which was especially challenging this year as they faced a $1.8 billion shortfall.  Even so, we have some concerns about whether the judiciary received enough to allow it to continue to deliver on its promise of “justice with dignity and speed.”  The Trial Court, legal services, and state attorneys will all face challenges if the budget is adopted in this form.

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

As you likely know, the BBA spent the last 24 months studying and gathering data on civil legal aid, and ultimately releasing one the most comprehensive reports in the nation on the issue, including analyses demonstrating concrete returns to the state on investments in this area.  For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69.  For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in medical care savings.  Finally, for every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.  And this is only in the three practice areas we studied.

Overall, roughly 64% of people seeking legal aid, who qualify financially at 125% of the federal poverty level, are turned away due to lack of resources.  That doesn’t take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.

Investing in Justice asks for $30 million from the Legislature in additional funding for legal services, spread out over three years.  That translates to $25 million in total funding this year, $35 million next, and $45 million in FY2018 funding.  We are confident that these funding levels would make a significant impact and significantly increase access to justice for those in need, while at the same time actually saving the state money.

Governor Charlie Baker’s budget proposal, which was released last month, essentially level-funded MLAC from last year, but the House Ways and Means budget gave it a $2 million increase.

Here is the breakdown:

FY2015 Budget

 

FY2016 Budget
Request$17,000,000$25,000,000
Governor’s Budget$14,000,000$14,731,500
House Ways & Means Budget$13,000,000$17,000,000
Final Budget Appropriation$15,000,000*

* before mid-year cut of 1.79%

Representative Balser is filing an amendment to increase the House appropriation by an additional $5 million, bringing total additional MLAC funding to $7 million and increasing the MLAC line item to $22 million.  We hope that you will contact your state Representative as soon as possible asking him or her to co-sponsor Rep. Balser’s amendment.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples include funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

The Governor’s budget proposal was disappointingly low, prompting a swift response from the Courts explaining that such funding levels would result in the devastating elimination of 550 positions, roughly an 8.4% cut to a court staff which is already pushed to its limits.  Thankfully, the House Ways and Means budget provides significantly more funding – a little over $620 million – and the Trial Court will continue to work closely with the Legislature to sustain its current operations and avoid layoffs.

This is how the funding breaks down:

FY2015 Budget

 

FY2016 Budget
Request$615,000,000 + Modules$642,600,000 + Modules
Governor’s Budget$617,000,000$603,300,000
House Ways & Means Budget$609,000,000$620,533,116
Final Budget Appropriation$612,000,000*

* before mid-year cut of 1.79%

 

Supreme Judicial Court (SJC) (Line Items: 0320-0003, 0320-0010, 0321-0001, 0321-0100)

The state’s highest court, comprised of four line items, took one of the biggest relative hits in the budget, as its House Ways and Means allotment was nearly 5% below its maintenance request.  As a result, the SJC may also have to face employee layoffs unless it can secure additional funding.

FY2015 Budget

(FY15 Final: $8,183,990)

FY2016 Budget

(Request: $12,600,000)

Governor’s Budget$11,554,036$11,554,036
House Ways & Means Budget$11,685,314$12,020,560

 

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS is comprised of four line items that include its own attorneys as well as compensation for private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, making a convincing case that public defenders, bar advocates, and assistant district attorneys, merit higher salaries, and a state commission unanimously agreed with that proposition [link to Issue Spot on this].  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfundedCPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  Neither the Governor nor the House Ways and Means budget propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breadkdown:

FY2015 Budget

(FY15 Final:)

FY2016 Budget

 

Governor’s Budget$187,337,340$186,701,051
House Ways & Means Budget$168,000,000$170,470,051
Final Budget Appropriation$168,000,000*

* before supplemental budget funding

In all, we are still at the beginning of a long budget process.  The next step will be amendments in the House and a floor debate before a House budget is finalized.  The process repeats in the Senate next month – Ways and Means budget, amendments, and debate.  Finally, a Conference Committee reviews the House and Senate budgets to pick a single amount for each line item.

The Governor then has 10 days to review the budget.  He can approve or veto the entire budget, veto or reduce specific line items, veto outside sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We will do our best to keep you updated throughout the budget process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Legal Aid Advocacy and Awards

As we’ve said before, once you understand the workings and impact of legal aid, it’s easy to view the world through this lens.  With near daily news of Massachusetts individuals struggling with issues such as income inequality, evictions, and domestic violence, and the documented increase in families and individuals qualifying for legal aid from roughly 800,000 to one million over the last few years, the time is right for a change in how we view civil legal aid, and how we fund it.  Our Investing in Justice report continues to make that case, both in the news and at the State House.  We are pleased to share that in the last two weeks we met with:

  • Attorney General Maura Healey
  • Representative John Fernandes, House Chair of the Joint Committee on the Judiciary
  • Minority Leader Brad Jones
  • Representative Hank Naughton
  • Representative Sarah Peake
  • Representative David Linsky
  • Representative Joseph Wagner
  • Representative Aaron Michlewitz
  • Representative Tom Sannicandro
  • Representative Chris Markey
  • Representative Carole Fiola
  • Representative Edward Coppinger
  • Representative Tricia Farley-Bouvier
  • Representative Alan Silvia
  • Representative David Muradian
  • Representative Betty Poirier
  • Karen Spilka, Chair of the Senate Ways and Means Committee
  • Senate Majority Leader Harriette Chandler
  • Senator Cindy Creem
  • Senator Jamie Eldridge

We hope that each of these meetings is another step towards more funding for civil legal aid.  We are seeking a total increase of $30 million in funding over the next three years.  The additional $10 million needed this fiscal year would bring total MLAC funding to $25 million and make a huge difference for so many individuals with life-altering issues.  The next major step will be the release of the House Ways & Means Committee’s budget on April 15th.  House members will then have the opportunity to file amendments, followed by a debate on the House floor two weeks later, before a final vote.  The Senate follows a similar process next month.  (Click here for more on the budget process).

Legal aid is also playing a leading role in our 2015 Law Day Dinner.  We look forward to honoring three stalwarts of legal services – Barbara Mitchell, Al Wallis, and Jack Ward.

Mitchell, BarbaraBarbara Mitchell, Executive Director of Community Legal Services and Counseling Center (CLSACC) will be receiving the John G. Brooks Legal Services Award for her career in legal services.  In her eight years with CLSSACC, she has increased the size of that organization’s professional staff by 70%, even while legal services was experiencing precipitous declines in funding.

Before her current role with CLSACC, Mitchell spent 15 years as Managing Attorney of the Greater Boston Legal Services (GBLS) Family Law Unit.  While at GBLS, she dramatically expanded exemplary family law representation for low-income individuals, especially those with domestic violence cases, more than doubling the size of the Family Law Unit to 20 attorneys.  Her work as an advocate both in and outside the courtroom led to a number of positive reforms in domestic violence law in case law and legislation.

Wallis, Al W. - newAl Wallis will receive the Thurgood Marshall Award for his legal services work in the private sector as Executive Director of the Brown Rudnick Center for the Public Interest.  Wallis has served in this role since the Center’s creation in 2001, championing and coordinating the pro bono, charitable, community, and public interest activities of the firm.  He is also the Director of the Brown Rudnick Charitable Foundation Corporation, which is known for its work supporting organizations improving inner-city education.  He is a nationally recognized leader in public interest and corporate social responsibility issues both locally and nationally.

Wallis is also extremely active in the legal and social justice community.  He was elected Co-President of the National Association of Pro Bono Counsel and serves as the Co-Chair of the Boston Pro Bono Roundtable.  He has donated a great deal of time and expertise to various BBA Sections and leadership positions and is also a past president and long-time board member of the Volunteer Lawyers Project of the BBA.

Ward, JackJack Ward will receive the President’s Award for his incredible 30-plus years of service at GBLS.  As Associate Director for Finance and Development until January of this year, he was responsible for overseeing all financial aspects of GBLS and its extensive fundraising efforts.  Ward remains involved in running the annual legal services development conference he helped found more than 25 years ago.  He is nationally recognized as a leader in legal services fundraising for his tireless and innovative work.

In case you’ve never been, Law Day Dinner is the largest annual bench-bar event in the Commonwealth, with over 1,300 judges, lawyers, and legislators from all practice areas and legal sectors.  Attorney General Maura Healey will provide this year’s keynote address, reflecting on the state of the legal community and the future of law.

We look forward to the opportunity to honor three fine individuals who have devoted their careers to legal aid, as we continue to advocate for increased funding for these crucial services.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

New Rules Rule: BBA Participates in MRPC Comment and Review Process

It has been a busy time for rule-related news from the SJC.  First, the SJC posted proposed revisions to the Code of Judicial Conduct, requesting comment from the bar.  Then, only a few days later, the SJC posted the revised Massachusetts Rules of Professional Conduct online.  The full impacts of both remain to be seen, but we are pleased that the SJC has involved the bar in their procedures.

The Code of Judicial Conduct changes, from an institutional perspective, appear to ease some of the restrictions on judicial interaction with attorneys and bar associations.  For example, a number of proposed revisions remove limits on judicial participation at bar association events.  The BBA encourages anyone who is interested to examine the new rules and comment as they see fit.  We plan to do the same.  Comments are due by Friday May 22 and should be sent to the Committee to Study the Code of Judicial Conduct at CodeJudicialConductComm@sjc.state.ma.us. The comments received will be made available to the public, and the Committee will make its recommendations to the Justices of the Supreme Judicial Court following receipt and review of public comments.

The revised rules of professional conduct are the culmination of months of consideration, revision, and even oral argument that began more than a year ago.  In July 2013, with the SJC’s permission, the SJC Standing Advisory Committee on the Rules of Professional Conduct (“SJC Committee”) published its proposed rules for comment.

Many of the proposed changes were based on the model rules proposed by the ABA Ethics 2000 Commission and the ABA Commission on Ethics 20/20.  The BBA’s Ethics Committee and Bankruptcy Law Section both carefully reviewed the rules and composed six comments, which were submitted to the SJC Committee in February 2014.  Following careful review of these and other comments, the SJC Committee submitted revised proposed rules to the Justices of the SJC on May 14, 2014.

In October, the SJC Justices announced their decisions regarding some rules and requested oral argument on certain issues for some others in December.  Ever since then, we have been eagerly awaiting their final decisions.

We were particularly pleased to see some revisions in-line with the BBA’s comments.  Most notably, the BBA’s Ethics Committee encouraged adoption of Model Rule 3.5, lifting the old MRPC prohibition on all juror contact, even after the jury was discharged.  The new adopted rule follows this recommendation with significantly fewer limits on juror communication after discharge, barring contact only if the communication is prohibited by law or court order, the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.

Another notable rule change in keeping with recommendations from the BBA’s Ethics Committee was incorporation of the ABA Model Rule into MRPC 7.2, deleting the requirement to retain advertising materials.  The old MRPC required lawyers to keep a copy or recording of all advertisements for two years after its last dissemination.  In their meetings, the Ethics Committee discussed the anachronistic elements of the old rule, and the challenges facing lawyers and law firms with web sites.  The definition of lawyer advertising materials is broad enough to include web and social media communications, making it almost impossible to accurately keep such records.  The new rule is less burdensome and easier to follow.

Finally, the final rules reflect the Ethics Committee’s recommendation to include the “catch-all” category in MRPC 8.4(h), which states that it is professional misconduct for a lawyer to “engage in any other conduct that adversely reflects on his or her fitness to practice law.”  The Standing Advisory Committee had proposed deleting that language.  While the Ethics Committee expressed concerns about the vagueness of this standard and the potential for its inconsistent application, Committee members were more troubled by the thought that egregious attorney conduct that was not a crime or fraud and not otherwise in violation of a provision in Rule 8.4 would go undisciplined because it was not specifically included in the definition of professional misconduct.  Their comments also noted that the Committee was unaware of any reported abuse of this provision, and that the facts of reported cases under this provision merited discipline.

Because of the voluminous rules changes and the complexity of the MRPC, we look forward to a program hosted by our Ethics Committee in the coming months explaining the new rules and their implications for practitioners.  We also expect to take part in a similarly comprehensive and successful comment and review process in the near future for the proposed revisions to the CJC.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Out and About: BBA Budget Excursions

Since Governor Charlie Baker released his state budget proposal at the beginning of this month, funding the Massachusetts Legal Assistance Corporation line item below its original FY15 amount, we’ve increased our focus on Legislative meetings, trying to meet with as many legislators as possible before the House and Senate file their own versions of the budget.  , Thus far, we have held meetings with House Speaker Robert DeLeo, Senate President Stanley Rosenberg, House Ways and Means Chair Brian Dempsey, House Speaker Pro Tempore Patricia Haddad, Senate Judiciary Chair William Brownsberger, Senate Minority Leader Bruce Tarr, and others.  And by the time the two houses begin to debate the budget, we plan to have met with legislators or staffers from the following offices:

  • Representative Ronald Mariano (House Majority Leader)
  • Representative Byron Rushing (House Assistant Majority Leader)
  • Representative Garrett Bradley (House Second Assistant Majority Leader)
  • Representative Michael Moran (House Division Chair)
  • Representative John Fernandes (House Judiciary Chair)
  • Representative Aaron Michlewitz (House Financial Services Chair)
  • Senator Sal DiDomenico (Vice-Chair, Senate Ways and Means)
  • Senator Pat Jehlen (Assistant Vice Chair, Senate Committee on Ways and Means)
  • Senator Harriette Chandler (Senate Majority Leader)
  • Senator Cindy Creem (Senate Assistant Majority Leader)
  • Senator Anthony Petruccelli (Senate Majority Whip)
  • Senator Kenneth Donnelly (Senate Assistant Majority Whip)

As of this post, we have met with ten of the above twelve listed legislators, and their reactions have been overwhelmingly positive.  Most are well versed in the issues that have put a major strain on legal services providers – the drop in IOLTA funds and the increase in poor population – and have been long-time supporters of legal-aid funding.  Many knew firsthand of constituents whom they referred to legal services providers.  While all reminded us that this year’s budget situation is unusually bleak due to the massive deficit, we have heard repeatedly that our message on the investment value of legal-aid funding is getting through, and that, once again, many members are flagging the line-item for the Massachusetts Legal Assistance Corporation (MLAC) as one of their top budget priorities.

The next step in the budget process comes from the House Ways and Means Committee, which is expected to release its budget on April 15.  The Senate’s budget will likely come out in May.  We still hope to see a major increase for civil legal aid funding, and will keep you posted on the process.

In the meantime, the Ways and Means Committees of each house have been holding joint hearings across the state, each on a different part of the budget.  Wednesday’s hearing in Worcester focused on the judiciary budget, taking testimony from the likes of Chief Justice of the SJC Ralph Gants, most of the state’s district attorneys, Chief Counsel Anthony Benedetti of the Committee for Public Counsel Services (CPCS), and MLAC Executive Director Lonnie Powers.

Chief Justice Gants told Committee members that the Governor’s budget plan would effectively cut $40M from the $642M that the courts would need simply to maintain existing levels of service.  The impact would be devastating to the delivery of justice, he warned, which “must be among the highest priorities of government.”  Layoffs of hundreds of court employees would be required, and the overall effect would be to undermine recent reforms and efficiencies that have been made possible by a stabilization in court budget levels after sustaining disproportionate cuts in the wake of the Great Recession.

Trial Court Administrator Harry Spence noted that, by law, courthouses cannot be closed without legislative approval, yet without proper funding, there may not be enough staff to keep all of them operating at sufficient levels.  Paula Carey, Chief Justice of the Trial Court, called the courts “ground zero” for society’s problems, saying, “We see the sea of humanity.”  The epidemic of opioid addiction has hit the courts particularly hard, with some overdosing on court property.  The courts, she said, are also hard at work implementing new laws on domestic violence and gun possession, and they will need money to conduct on-line education for staff.

Their testimony also covered two key BBA priorities that came up short in the Governor’s budget: expansion of the Housing Court to offer statewide jurisdiction, and expansion of the successful specialty courts for mental health, substance abuse, veterans, and the homeless.

Although DA’s and CPCS generally line up on opposite sides of the courthouse, they were in complete agreement on one point at the hearing: They are unable to attract and retain new attorneys at current funding levels.  Both pointed to the report last December from a commission established by former Governor Deval Patrick, which emphasized the embarrassingly low starting salaries for ADA’s and public defenders – about $40,000 for each – and recommended instead a minimum of about $56,000 for each, to match the lowest-paid attorneys in the executive branch.

Lonnie Powers spoke eloquently of the value of funding for legal aid, citing the report of the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts, which demonstrated through independent economic analysis that the state actually receives a positive return on that investment, in the form of both reduced “back-end” costs on things like health care for domestic-violence victims and shelter for the homeless, and the economic growth that’s generated when Massachusetts residents are able to receive the full federal benefits to which they’re entitled.

Powers mentioned the report’s additional findings that 64% of qualified applicants for legal aid must be turned away by providers for lack of resources, and that judges reported a flood of pro se litigants clogging up their courts.  He said MLAC closed 34,000 cases last year and trained private attorneys who put in an additional 46,000 pro bono hours.

Budget season is heating up, and we will continue to update you on our advocacy efforts.

— Michael Avitzur
Government Relations Director
Boston Bar Association