MA Legislature Advances Criminal Justice Legislation

Now that both the State Senate and State House of Representatives have passed bills to make sweeping reforms to the criminal-justice system in Massachusetts, the stage is set for leaders in each house to appoint members of a six-person conference committee.  Those conferees will face the daunting task of finding compromise language on a wide variety of issues covered by the respective bills.  Some topics addressed in one bill were entirely left out of the other.

Based on the report of the BBA’s Criminal Justice Reform Working Group, we focused our advocacy on the six areas in which the Working Group made recommendations.  On the whole, we were pleased that each house’s bill would make significant progress in all of these six areas.  Here’s a snapshot of some of our key recommendations, and the action that’s been taken thus far by legislators:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion.)
  • We were pleased to see that both bills include provisions that would remove the age restriction on diversion programs in District Court.  The House bill would also require the creation of pre-arraignment programs for certain groups.
  • We recommend going further, to make all non-violent offenders with no prior felony convictions eligible for consideration for pre-trial diversion.
  1. Adopting substantial reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  • Specifically, we recommend that the recent decision by the Supreme Judicial Court in Brangan v. Commonwealth be codified, to ensure that defendants are not held solely because they are poor.
  • The two bills take different approaches toward achieving bail reform, but on this critical issue they agree with our Working Group: No defendant should ever be incarcerated before trial simply because they cannot afford bail.
  1. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  • Again, each house would eliminate some mandatory minimums for drug offenses, in recognition of the fact that this has been a misguided effort to address substance addiction.
  • The current scourge of opioid addiction has brought renewed, and well-deserved, attention to the issue—and led some law-makers to resort to new application or enhancement of mandatory minimums in response.  But this blunt tool has already been shown to offer no solution to such a complex public-health problem.
  • Consequently, the BBA continues to recommend the elimination of all mandatory minimums for drug offenses, so that judges can craft individualized sentences, in the interest of justice, after hearing from both sides at the conclusion of each case.  We are hopeful that a provision in the Senate bill, to establish a commission that would study the effectiveness of mandatory minimum sentences, can offer a road map toward that goal in the near future.
  1. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  • Both houses seek to establish a uniform standard for what constitutes “substantial financial hardship,” such that a judge may waive or reduce a fine.
  • We believe that the conference committee should further adopt our recommendation of completely eliminating counter-productive parole and probation fees after release.
  1. Expanding recidivism reduction programs to advance public safety.
  • Separate legislation to implement consensus recommendations from the report early this year by the Council of State Governments (H. 4012, which the House also passed) would increase incentives for certain incarcerated individuals to take advantage of these programs.
  • The BBA recommends extending these incentives for participating in and completing programs to all inmates who may be released from state prison.
  • This will further reduce recidivism and save money by freeing up beds. Such programming is not a reward but rather a means to protect public safety.
  1. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.
  • Both houses share our support for a major reduction in the waiting periods before records become unavailable to the general public.  Although their two bills agree on a reduction from 10 to 7 years for felonies and from 5 to 3 years for misdemeanors, we actually called for the former to be reduced to 5 years, and our report demonstrates that there is academic research behind this recommendation.
  • We are also call for automatic sealing when charges are dismissed prior to arraignment, or after a defendant successfully completes a diversion program—unless the judge finds, upon objection from the District Attorney, that doing so would not serve substantial justice.

Once the members of the conference committee are named, we will reach out to them to make clear our positions on all provisions within these six areas that are still in conflict.  And we will of course keep you informed as that process plays out, potentially over all the remaining eight months of formal legislative sessions this term.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Criminal Justice Reform Bill Passes the Senate

When the Senate last week debated a comprehensive criminal-justice bill that had been months in the making, it marked the first time, after years of public discussion, that either house had formally gone on record with votes on what the reform package should include.  The Senate’s marathon session, which started last Thursday morning and ended well after 1am that night, was almost exclusively devoted to the bill, and the 161 amendments that members had initially filed for consideration.

The final bill, as approved by a vote of 27 to 10, incorporated many of the recommendations of the BBA’s working group on criminal-justice reform.  We must now await the action of the House.  With formal legislative sessions for 2017 required to end by November 15, that chamber will hold their debate within the next two weeks.  First, though, the Judiciary Committee, led on the House side by Chairwoman Claire Cronin, is expected to release its long-awaited legislation early next week, after which Representatives will be permitted to file their own proposed amendments for floor debate.

Our working group urged lawmakers to make changes in six critical areas:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion).
  2. Adopting significant reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  3. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  4. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  5. Expanding recidivism reduction programs to advance public safety.
  6. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.

Since the release last month of our working group’s report, we have advocated for its recommendations, with the Senate, the House, and other stakeholders.  (The final Senate bill takes positive steps in each of the above areas, though it doesn’t include all our recommendations.  For example, while we call on the Legislature to repeal mandatory minimum sentences for all drug offenses—in keeping with our long-standing opposition to virtually all such counter-productive sentences—the bill repeals only some of those.)  We will continue to do so through the House vote … and beyond, as a six-member conference committee will be named to hash out differences between the two bills.

That process could take months.  While it cannot extend beyond the July 31, 2018, end of the formal legislative session, we anticipate that House bill will forge a very different path from its Senate counterpart—both in terms of how it deals with those issues addressed by both houses, and in terms of how many issues it chooses to include in its legislation to begin with:  Whereas the Senate bill covered a wide variety of topics in criminal justice—including, for example, creation of a mandatory parent-child testimonial privilege and a measure to extend the Juvenile Court’s jurisdiction to 18-year-olds—House leadership has expressed a preference for a more limited bill.

For a refresher, the current debate was kick-started in February with the release of a report from the Council of State Governments’ Justice Center (CSG).  The Governor immediately filed a bill to enact those CSG recommendations for which legislative action was required.  And the House has since filed a new version of that bill.  They have argued that, since such language enjoys universal support, the CSG-only bill should be adopted and sent to the Governor quickly, leaving the conference committee to hash out what else may be enacted this session on criminal justice.  It remains unclear, though, whether the Senate will agree to this approach, or insist that the entire package be considered by the conferees.

As we continue to monitor developments in the House, please look for a BBA e-mail alert next week, asking you to call your Representative ahead of their vote, urging them to support action on the BBA’s recommendations.  Thanks in advance for your help!

—Michael Avitzur
Government Relations Director
Boston Bar Association

 

ICYMI: Chief Justice Ralph Gants Delivers the State of the Judiciary

Last Week, the Chief Justice of the Supreme Judicial Court Ralph Gants, delivered his annual “State of the Judiciary” speech in the Great Hall of the John Adams Courthouse. This event, which also included addresses by Chief Justice of the Trial Court Paula Carey, and Court Administrator Jonathan Williams, always offers valuable insight into the current and future priorities of the Massachusetts Court System.

Chief Justice Gants first took a moment to extend a warm thanks to all those that help ensure a functioning court system, including the judges, clerks, administrative staff, security personnel and court officers, as well as the private bar, the legislature, and the executive branch.

Kicking things off with a recent success story, the Chief Justice also specifically thanked the House Speaker Robert DeLeo, Senate President Stanley Rosenberg, Senator Karen Spilka, and Representative Chris Walsh for their leadership in expanding the Housing Court statewide. We’ve also been calling for this expansion for the last three years and are thrilled that all the benefits of the housing court will be extended to all residents of the Commonwealth. And the benefits of Housing Court are many, including judges that are exceedingly well-versed in all aspects of often-complex housing law issues, as well as Housing Specialists, who mediate cases, facilitate settlements, and even provide on-site reviews to resolve issues with housings conditions.

The Chief Justice also discussed conflict resolution, noting the menus of litigation options currently in place at the Land Court, Probate and Family Court, and Superior Court, which allows parties to utilize alternative dispute resolution to resolve conflicts in a tailored way that takes into account the particulars of each case. As he did in the BBA Council meeting in the spring, he urged attorneys and litigants to begin making more use of these options. This focus on the efficiency of the delivery of justice led to a discussion of the need for the courts to update their information technology, and the Chief highlighted the current work being done to digitize the court experience, by increasing the use of e-filing, digital reminders, the immediate electronic transmission of judicial orders and opinions, and video conferencing.

There were two key issues in the address that garnered heightened attention: Criminal Justice Reform and the Care and Protection Crisis.

On the Criminal Justice Reform front, the Chief began by commending the work done by the Juvenile Court, the Superior Court, the District Court, and the BMC in adopting best practices in sentencing that help to ensure each defendant receives an individualized sentence that takes into account the full context of the crime, the victim, and the defendant. He also highlighted the recent American Law Institute’s adoption of a new Model Penal Code of Sentencing, which calls to end mandatory minimum sentences.

Chief Justice Gants then turned his attention to the broader debating currently taking place at the legislature. We were very pleased to hear the Chief praise our own Criminal Justice Reform Working Group report, “No Time to Wait,” noting that the report, “clearly written, thoroughly researched, and carefully considered, comprehensively describes the urgent need for reform.” For an update on where our advocacy on this report stands, be sure to check out this post.

The Chief Justice then honed in on the key take away from the Council of State Governments report released earlier this year: that effective criminal justice reform, which includes the provision of drug and mental health treatments, the earning of good time and parole, and removing barriers to reentry, does not increase the crime rate, but instead reduces it. He noted that “if we take these steps, then we can finally make a dent in [the] persistent recidivism rate and reduce the overall crime rate.”

The second headline-making item highlighted in the address is the lack of available attorneys to represent parents and children in care and protection cases. These cases arise when the Department of Children and Families (DCF) removes a child from parental custody. Based on Massachusetts statutes, each parent and child is entitled to individual representation by an attorney at an evidentiary hearing that must happen with 72 hours of the removal of custody to determine whether DCF’s temporary custody will continue until resolution of the matter. In the Western part of the state, the crisis is especially severe, and since March of 2017, nearly half of the 72-hour hearings have been continued based on an inability to find attorney to represent all necessary parties. Given the severity of the problem, both in Hamden County and the rest of the state, the Chief stated “it is time to recognize this for what it is – a constitutional emergency.” He urged a concerted effort from CPCS, the bar, law schools, and the legislature to find new ways to reach, train, and encourage more attorneys to take on these cases.

The Chief wrapped up his speech by noting one theme that applied to all of the topics covered in his afternoon speech: “our ongoing effort as a court system to rethink how to make the legal process fairer, more efficient, and more effective in solving the problems of the people who come before us.” We commend this ongoing effort and look forward to continuing our support for the Judicial Branch and finding new ways to contribute to a fair, efficient, and effective court system here in the Commonwealth.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Committees Offer Comment on Proposed Amendments to SJC Rules on Clerk Magistrates and a Proposed Probate and Family Court Uniform Practice

We often help facilitate the collection of comments on various proposed amendments to court rules and orders from our Steering Committees, who can weigh in with their specific practice area expertise and experiences.  As part of this process, we were pleased to recently submit comments on behalf of the Ethics Committee and the Family Law Section Steering Committee on proposed amendments and a new protocol.

Proposed Amendments to Supreme Judicial Court Rule 3:12

In September, the Ethics Committee discussed these proposed changes to the Code of Professional Responsibility for the Clerks of the Courts. The Rule governs the norms of conduct and practice for persons serving as Clerk-Magistrates, and the amendments were drafted in light of recent changes to the Code of Judicial Conduct. The Supreme Judicial Court formed a working group to consider whether similar changes should be made to the Code governing clerks, and the amendments are based on the working group’s recommendation to revise the provisions of the Clerks’ Code that are more restrictive than those in the Code of Judicial Conduct.

The Ethics Committee comments began by noting that, overall, the proposed changes were reasonable.  Members, however, did note a few ambiguities that could be worth clarifying in the final version of the rule. For example, the Committee commended the addition of language providing that  “a Clerk Magistrate may make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard,”  but wondered why this addition was “may” instead of “shall” and noted that the meaning of “reasonable efforts” was vague and open to diverse interpretations.  In addition, Committee Members felt aspects of Canon5(f) which explains when a Clerk Magistrate can accept free or discounted legal services, were a bit confusing, and that  the provision as a whole could benefit from further explanation and clear language.

Proposed Uniform Practice XXXV Change of Name Actions

Last month, the Family Law Section Steering Committee offered comments on Proposed Uniform Practice XXXV for Change of Name Actions in the Probate and Family Court. As provided in the solicitation, “the uniform practice was developed to standardize the procedural and form requirements for change of name actions involving both minors and adults.”

Members of the Steering Committee first noted the challenges that often accompany change of name actions and commended the Probate and Family Court for offering guidance and uniformity in this process by drafting the proposed practice. Overall, members felt the proposal offered much-needed clarity and expressed optimism that it would benefit practitioners and petitioners pursuing change of name actions.

Some members, however, did feel there were a few outstanding challenges related to change of name actions that could perhaps be improved by inclusion in the final Uniform Practice. For example, one member felt the proposal could help to resolve the confusion that often arises when an individual who has been married multiple times attempts to resume a prior name that is not the name of the most recent former spouse, as currently individuals are sometimes forced to  choose between that name and the name of the current spouse. Another member felt the proposal could specifically provide clarity when an individual seeks to change their entire name (and gender makers) simultaneously with a divorce proceeding. Finally, a member noted that the proposed Uniform Practice could be more clear as to where an action should lie when a child resides in one county and the parent filing the petition on behalf of the child resides in another county.

We look forward to seeing the final versions of these proposals and whether any of the issues addressed by our members are reflected in the final iterations. A special thanks goes out to the Ethics Committee and the Family Law Section Steering Committee for their thoughtful analysis, and to co-chair of the Family Law Section, Lisa Wilson of Wilson Marino & Bonnevie, and co-chair of the Ethics Committee, Paul Tremblay of Boston College Law School, for their excellent report on the  comments to the BBA Executive Committee.

Get Involved

Of course, these requests for comment are open to the public, and we encourage our members to submit their own comments when they have particular insights or concerns.  You can stay up to date on both the notices inviting comment and rule changes by visiting this page. If you have any questions about the comment process, please contact  adaniel@bostonbar.org.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

A2J Update: Legal Services Corporation Comes to Cambridge; Equal Justice Coalition Previews 2019 Budget Campaign for BBA Council

Last week, we updated you on the Third Massachusetts Access to Justice Commission and its year ahead. This week, we are continuing the access to justice theme by offering recaps of two civil legal aid-oriented items: the Legal Services Corporation (LSC) hosted its quarterly board meeting in Cambridge and the Equal Justice Coalition stopped by the BBA Council to preview the upcoming budget campaign and Walk to the Hill in January.

LSC Quarterly Board Meeting

Four times a year, the LSC convenes its Board in cities across the country, and this week, the Board of Directors Quarterly Meeting came to Cambridge. As you may know, the LSC is the nation’s leading funder of civil legal aid programs, with an annual appropriation of $385 million. Here in Massachusetts, we receive approximately $5 million, distributed to four different providers of legal aid. For years, the LSC has been level-funded, while the need for legal services has increased significantly. The LSC found, in its 2017 Justice Gap Report, that 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help, and our own Investing in Justice Task Force report found that, here in Massachusetts, approximately two-thirds of qualified individuals must be turned away due to a lack of resources.

Each year, the BBA President and President-Elect head to Washington, D.C., as part of ABA Day, to advocate for LSC funding. This past year, that ask felt especially important as the White House had proposed zeroing out the full LSC line-item. Even as a state that doesn’t rely on LSC funds for the majority of its civil legal aid funding, a $5 million cut to legal services would represent a massive hit to the Commonwealth, especially since it would likely go hand-in-hand with cuts in other services that only drive up the need for legal services. Thankfully, Congress chose to level-fund LSC for the remainder of the year. As the 2018 budget talks begin again, however, the situation remains uncertain. For a crash course on the federal budget process, especially as it relates to legal aid funding, be sure to listen to our Issue Spot podcast, The Federal Budget Process 101.

Forum on Access to Justice

The Forum, consisting of four distinguished panels, highlighted access to justice issues from a range of angles.

First up, a panel entitled “Natural Disasters, Legal Aid, and the Justice System,” convened Moderator Judge Jonathan Lipmann, who was the Chief Judge of New York during Hurricane Sandy, Chief Justice Nathan Hecht of the Supreme Court of Texas, where Hurricane Harvey recently hit, and Chief Justice Jorge Labarga, of the Florida Supreme Court, where Hurricane Irma recently hit. You can view this full panel, along with those mentioned below, on the LSC Facebook Page.

Both Justices spoke of the need for court systems to prepare as much as possible for all types of disasters but also to remain flexible to adapt to each particular situation. They highlighted the legal challenges facing the judiciary in these moments of crisis, some of which can be addressed by administrative orders, like those related to statutes of limitations or speedy trials, while others require legislative fixes or public education, to inform impacted communities of their rights and where they can access legal services if they need them. In relation to education, the Justices also stressed the new role of social media and highlighted the need for courts to ensure their communication plans are updated and adaptive to these types of events. They additionally spoke on the role of legal aid organizations, noting that these providers will bear the brunt of the burden in addressing recovery as these disasters will cause the demand for civil legal services to greatly increase.

Finally, the Justices also mentioned the role that the bar can play in these moments, pointing to the associations as a source of access to attorneys and a centralized point of communication. Texas waived the admission requirements for pro bono attorneys licensed to practice law in a different state but seeking to help victims of Hurricane Harvey. Interestingly, the ABA’s Committee on Disaster Response and Preparedness has established resources, policies, and information for the legal community, including a list of resources for bar associations.

The other panel discussions also addressed significant access to justice issues facing both the country and Massachusetts in particular. For example, “The Importance of Access to Justice to American Business” panel drew General Counsel from a range of companies like GE and Raytheon, including former BBA President Paul Dacier, formerly of EMC Corporation and now of Indigo Agriculture. Last week, we mentioned the Massachusetts Access to Justice Commission’s work on the Justice for All Project, and the Panel entitled “The Justice for All Project: An Overview,” provided a macro look at the goals of this national project and a local take with Chief Justice Ralph Gants offering insights into the Massachusetts-specific undertaking. Finally, deans from seven law schools, including BBA Council member Dean Vincent D. Rougeau, of Boston College Law School, discussed “Law Schools’ Work and Access to Justice,” highlighting what schools can do to foster students who choose law school activities and careers that prioritize increasing access to justice.

Following these enlightening panel discussions, the LSC hosted a Pro Bono Awards Reception, honoring attorneys who have devoted significant time and energy to pursuing projects at LSC-funded legal aid organizations, including Susan Finegan of Mintz Levin, a former BBA Council member and member of our Statewide Task Force to Expand Civil Legal Aid, for her work with Volunteers Lawyers Project of the Boston Bar Association (VLP), Michael Castner for his work with South Coastal Counties Legal Services, Norma Mercedes for her work with Northeast Legal Aid, the law firm Community Legal Aid, and a posthumous award for Terrell “Terry” Iandiorio for his work with VLP.

We were thrilled that President-Elect Jonathan Albano was invited to speak before the awards were presented. These remarks followed an interesting update by Dean Andy Perlman of Suffolk University Law School, who spoke on his work as Chair of the Governing Council of the ABA Center on Innovation. Jon Albano noted that though pro bono would never be enough to fully bridge the justice gap, it was more crucial than ever given the uncertain federal funding forecast and the expanding legal needs of many vulnerable communities. The work of the honorees and others, who devote their time to pro bono efforts, expands the reach of those legal aid organizations that offer civil justice for individuals facing dire circumstances, from eviction, to domestic violence, to deportation, to the loss of necessary health care services and other public benefits. Here at the BBA we have long understood the critical importance of pro bono work in expanding access to justice through our legal system and support that work by training and educating volunteer attorneys who make the commitment to take on those cases.

EJC Addresses BBA Council 

In addition to our work expanding and promoting pro bono work and federal legal aid funding, we also, as you are well aware, advocate for adequate legal funding at the state level. As this advocacy begins for the coming year, the BBA Council was fortunate to be joined by Chair of the Equal Justice Coalition (EJC), Louis Tompros of WilmerHale, and Director of the EJC, Laura Booth. Louis and Laura offered an overview of the current state of funding in the Commonwealth and a preview of the EJC FY19 budget campaign for adequate Massachusetts Legal Assistance Corporation (MLAC) funding. Specifically, they highlighted the need for increased funding for MLAC, given recent federal actions, including expanded immigration enforcement, which will increase demand for civil legal services. They also offered helpful insights into just how one goes about discussing this need for funding with legislators, which was also the theme of a podcast last year, featuring Louis himself.

A key piece of this budget advocacy is the annual Walk to the Hill for Civil Legal Aid when, each January, hundreds of attorneys head to the State House for one of the largest lobby days in the Commonwealth. These attorneys hear speeches from the judiciary, the bar, and those helped by legal aid funding and then head out to speak to their legislators, urging them to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents.

Louis and Laura brought a few specific requests in relation to this important event, which will take place on January 25, 2018. First up, they stressed just how important a major turnout is in signaling the continued importance of civil legal aid to Massachusetts representatives and senators. Second, they stressed that even more important is ensuring that all those who took the effort to attend, actually head out to speak to their own legislators, and/or their staff. This day is most effective when legislators hear from many of their own constituents about the importance of MLAC funding from a local level. Finally, Louis and Laura stressed the importance of fully utilizing social media this year, which will help to get out the word about the importance of civil legal aid generally, and encourage more people to join the call for civil legal aid funding.

For a full rundown of just how important this effort is, check out this post, and be sure to read and listen to recaps of last year’s Walk to the Hill and stay tuned for how you can get involved. If you are interested in learning more, feel free to contact me at adaniel@bostonbar.org . Or reach out to the EJC for information about finding, or starting, your own team.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Third Access to Justice Commission Reconvenes  

This week, the Third Massachusetts Access to Justice Commission (Mass A2J Commission) hosts its first meeting of the new Commission year, looking to continue and expand efforts to ensure access to justice (A2J) for low-income residents of the Commonwealth.

A Brief History

In September 2004, the Massachusetts State Planning Board for Civil Legal Services recommended the formation of a Massachusetts Access to Justice Commission in order “to provide leadership, vision and coordination to the multitude of organizations and interests involved in assuring access to civil justice for the low-income families and individuals in the Commonwealth.” The Supreme Judicial Court (SJC) accepted this invitation and created the Mass A2J Commission by order on February 28, 2005.

The Court gave the First Commission a five-year mandate (2005 – 2010) to conducts its activities and appointed 21 members from judiciary, the private bar, law schools, and legal services and social services agencies. Former Chief Justice Herbert P. Wilkins served as chair and attorney James T. Van Buren served as co-chair. The First Commission had a number of key accomplishments, including production of a report analyzing the barriers to A2J in the Commonwealth, research on the roles that social service organizations and the executive branch play in providing and expanding access to justice to low-income individuals, and thorough study of the civil delivery system across the network of relevant stakeholders.

The Court appointed 23 members to the Second Commission and Chief Justice Ralph D. Gants and attorney David W. Rosenberg served as co-chairs of the Commission over its five year mandate from 2010 – 2015. The Second Commission continued the work of the First and also made a significant number of new accomplishments, including adoption of a $51 “Access to Justice Fee,” as a voluntary contribution to the Massachusetts IOLTA Committee with the annual attorney registration fee; a study of court service centers as a tool for unrepresented litigants and the launch of successful pilot centers in the Brooke Courthouse in Boston and in Greenfield; and development of the Legal Resource Finder, which allows litigants to learn whether they are eligible for legal services and how to seek help if so.

The Current Commission

The Third Commission, which will run until 2020, is composed of 30 members and was chaired by former Associate Justice Geraldine S. Hines and Susan M. Finegan until Justice Hines’ retirement this year. Chief Justice Ralph Gants will step in as co-chair for the remainder for the Commission’s term. This Commission adopted a mission statement centered on five priorities:

  • Increasing justice by improving the effectiveness of, and the funding for, civil legal services organizations;
  • Increasing services provided by private attorneys;
  • Improving assistance to unrepresented litigants;
  • Improving access to justice beyond the courts, such as in administrative agencies; and
  • Exploring the role of non-lawyers in the provision of appropriate civil legal assistance.

Only two-fifths into its mandate, the Commission has already had some significant victories, including receipt of one of seven Public Welfare Foundation/Justice for All grants to states for development of a strategic action plan for improving access to justice throughout the Commonwealth, expansion of the civil appeals pro bono program to cover the entire Commonwealth, and continued development of the Access to Justice Fellow program where 74 returned lawyers and judges have offered over 76,000 hours of pro bono in the past five years.

Read a more in-depth history of the prior Commissions’ work here and reports on past Commission activities here.

This past year alone the Commission accomplished a few of their priorities, including statewide expansion of the Housing Court, which we’ve also been calling for over the past three years. This means that one-third of the state will no longer be denied access to this critical resource, which offers judges that are experts in housing law and other benefits, like Housing Specialists, who mediate cases and save litigants time and money.

In addition, the Commission endorsed the report of the Access to Attorneys Committee, chaired by attorneys Joel Feldman and Mary Lu Bilek. The Committee met over 18 months to investigate and recommend ways in which the private bar could meet the legal needs of litigants who cannot retain an attorney. The Final Report recommended the Commission and the Commonwealth do a number of things, including:

  • “strongly support efforts to expand the right to counsel where the most essential needs of low income litigants are at stake,
  • further investigate apparent obstacles to the use of fee shifting to serve low income litigants by analyzing existing data decisions in the Housing and Probate Courts,
  • track usage of LAR in Mass Courts and provide consistent LAR information at Court Services Center, and
  • include LAR and fee shifting components as part of the Practicing with Professionalism seminar required of all law school graduates.”

Read the Access to Attorneys Committee’s Report here and the Third Mass A2J Commission 2017 Annual Report here.

The Year Ahead

As mentioned, the Mass A2J Commission first 2017 – 2018 Meeting takes place today, and the agenda if full of exciting developments that will shape the year ahead. First up, the Commission will welcome Chief Justice Gants as returning Co-Chair as well as a Laura Gal, who is the new consultant to the Commission.

The meeting, and coming year, will also focus on the current progress of the Justice for All Project mentioned above. The grant, awarded in November 2016 involves assessing the current resources available to assist those Massachusetts residents who cannot afford a lawyer for essential legal needs and producing a statewide plan to bridge those gaps in services. Over the spring of 2017, regional meetings were held across the state, and in June, a statewide conference was convened at Harvard to further develop creation of the strategic plan. Following these meetings, working groups divided by the issue areas of consumer debt, housing, family, and ecosystem were formed to develop the plan and produce potential pilot projects for the year ahead. We are looking forward to following and participating in the continued evolution of this project.

The Greater Boston Immigrant Defense Fund is also on the agenda for today’s meeting. As we reported last month, the Fund is a the product of private funding through foundations and law firms, facilitated through partnership between the City of Boston, the Massachusetts Legal Assistance Corporation (MLAC), and the Massachusetts Law Reform Institute. The Fund will work to protect and support Boston’s immigrant and refugee communities by increasing access to legal representation to indigent individuals in deportation proceedings in Immigration Court as well as community education and preparedness programing like know-your-rights trainings. Through the Boston Bar Foundation’s grant-making mechanism, we are acutely aware of the critical need and importance of providing legal representation in the area of immigration law.

With applications for funding now under review, we are looking forward to learning more about what the Commission plans to do to ensure the success of this important Fund and how members of the bar can be involved!

Another key item on today’s agenda is the recently-announced $8.3 million two-year Office for Victim Assistance (MOVA) grant obtained by MLAC to increase access to civil legal services for victims of violent and economic crimes in Massachusetts. Victims of crime are often left with significant civil legal needs related to things like child custody, health care, housing, and immigration. MLAC will, working in partnership with MLRI, disburse the funds to regional and statewide civil legal aid programs, and the Commission, which helped to spearhead this grant application will undoubtedly be working hard in the coming year to ensure the project runs smoothly and efficiently.

Yesterday’s statement announcing the Grant noted the BBA’s own Investing in Justice report, which highlighted the importance of investing in civil legal aid services and demonstrated the costs saved with such investments. In that statement, BBA President Mark Smith said:

“The BBA’s study demonstrated that providing civil legal aid to the vulnerable is not only the right thing to do but also provides the Commonwealth with a return on investment. This generous grant from MOVA will help expand access to justice for victims at a critical moment in their lives.”

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

New BBA Report Recommends Comprehensive Criminal Justice Reform

In July 2015, when the leaders of all three branches of government in Massachusetts invited the technical assistance of the Council of State Governments’ Justice Center (CSG) in conducting a comprehensive review of the Commonwealth’s criminal-justice system, it wasn’t just the report from CSG they were eyeing.  They were also looking ahead to the criminal-justice debate that the Legislature will take up over the coming weeks.

And as the CSG team, with the guidance of a working group composed of a few dozen stakeholders from Massachusetts, prepared its final report at the start of 2017, then-BBA President Carol Starkey, of Conn Kavanaugh, was also anticipating this debate. In response,  she appointed a BBA working group to not only review and analyze the CSG work product, but also consider further reforms that the BBA could recommend. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group spent the first half of the year studying which areas of reform would be most necessary and effective in producing a fairer and more effective criminal-justice system for the Commonwealth.

We’ve previewed this moment several times in recent months, but have now finally reached the point when the criminal-justice reform package that we’ve been waiting more than two years for is about to take shape and actual votes are being cast at the State House.  In just the past several days, two new bills have advanced one step closer to a floor debate (more on that below), and we are proud to let you know that the BBA’s working group on criminal justice has also released its report and recommendations, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.”

You can find the full report here.  And listen to Kathy Weinman discuss the report on WGBH’s All Things Considered here.

In brief, the report commends the CSG proposals, but calls for broader reforms to reduce recidivism and make Massachusetts’ criminal justice system fairer and more cost-efficient.  The recent research conducted by the CSG, and others, highlights this need for wider reforms , including to address the critical issue of racial disparities. In Massachusetts, racial disparities in incarceration are among the worst in the country: the disparity between Hispanic individuals and white individuals is the highest in the nation, and the disparity between black individuals and white individuals is thirteenth among the fifty states. As President Mark Smith states in the press release accompanying the report:

 We must ensure that the criminal justice system treats everyone equally and fairly. Even if we cannot identify the causes of these inequities with precision, we believe we know enough to take action to address its consequences, and the time has come to do that now.

The report calls for six additions to the previously proposed reforms:

  1. Increasing opportunities for pre-trial diversion for more defendants. (Currently Massachusetts has no statewide coordinated system for pre-trial diversion).
  2. Adopting significant reforms to the Massachusetts cash bail system so that defendants are not incarcerated before trial simply because they cannot afford bail.
  3. Repealing mandatory minimum sentences, particularly for drug crimes, which are primarily driven by drug weight and do not permit judges to evaluate a defendant’s role in the drug distribution.
  4. Ensuring that ordering payment of multiple fines and fees does not effectively criminalize poverty and impede successful reentry after incarceration.
  5. Expanding recidivism reduction programs to advance public safety.
  6. Reforming the state’s criminal record laws, also known as the Criminal Offender Record Information (“CORI”) laws that adversely impact the ability of ex-offenders to find jobs.

According to Martin Murphy, these reforms:

…point[] the way forward to a criminal justice system that is fairer and more effective – one that allows people to break free from the cycle of poverty and recidivism, leaving the Commonwealth stronger and safer.

The report also could not come at a better time, as the Legislature’s Judiciary Committee has just released both an omnibus bill (S. 2170) that tackles a wide array of reform ideas—from decriminalization of certain misdemeanors to restrictions on solitary confinement to creation of a parental testimonial privilege—and a much-narrower bill (H. 3935) that closely tracks the CSG recommendations.  Those recommendations, which focused on efforts to reduce recidivism, earned wide acclaim; but while there was near-universal agreement that more needed to be done, the CSG working group couldn’t reach consensus on what those further reforms should look like.

The legislative debate—first in each house, and then in a conference committee tasked with working out the differences—will settle the question, at least for this current two-year session, of what, if anything, will be done beyond the CSG bill.  That much is yet to be answered, as is the question of whether the Legislature will start by passing a CSG-only bill (like H. 3935), and then take up broader reforms, or whether they will try to take it all on in one go.

Regardless of which direction the debate goes, the BBA will be there to advocate for those reforms outlined in the Report. We look forward to keeping you updated on the state of criminal-justice reform in the Commonwealth!

—Michael Avitzur
Government Relations Director
Boston Bar Association

ICYMI: ICE Conducts Raids in Massachusetts, Points to SJC decision

Last week, ICE conducted a four-day immigration enforcement action called Operation “Safe City,” which focused on 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, where the Supreme Judicial Court recently held, in Lunn v. Commonwealth, 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.

Read an overview of the oral arguments in that case here, and our statement on the decision here.

Initial reports indicate that some of these arrests may have occurred in and around courthouses. There are serious, nationwide concerns, that increased ICE presence and enforcement actions in courts may chill undocumented victims and defendants from exercising their rights and deter witnesses from appearing. Given the potential access to, and administration of, justice implications, this is an issue we’ve been following closely. We even had the chance to discuss with our Congressional Delegation during our advocacy at ABA Day in April, and it was also on the minds of the ABA House of Delegates at their Annual Meeting in August.  Be sure to watch this space for more updates!

BBA Annual Meeting Preview

Each fall, the Boston Bar hosts its Annual Meeting, one of the largest legal community gatherings of its kind. At the meeting, the BBA brings together members of the bar, their friends and colleagues, and leaders across a range of professional sectors for an afternoon focused on the law and the evolving landscape of the legal profession. The event will include remarks from President Mark Smith, the presentation of a Distinguished Legislator Award, and a special keynote speech from Piper Kerman (Orange Is the New Black). We hope you’ll join us there!

Distinguished Legislator Award

This year, the BBA will be conferring its Distinguished Legislator Award on Representative Kay Khan for her longstanding dedication to the youth and families of the Commonwealth, her leadership in juvenile justice reform, her stalwart support for persons with disabilities, and her commitment to ensuring inclusion and fairness of all residents of the state.

Representative Khan is the House Chair of the Joint Committee on Children, Families, and Persons with Disabilities as well as a founder and co-chair of the legislative Mental Health Caucus, the first of its kind in the country. She is also an observer on the Criminal Justice Commission, which explores ways to prevent crime by implementing data-driven, evidence-based public safety reforms that protect citizens in our cities and towns, reduce recidivism, and save taxpayer dollars. In addition, Representative Khan is the Co-Chair of the Task Force on Women in the Criminal Justice System, which could not be more relevant to the keynote speaker highlighted below!

Representative Khan has a long history of supporting causes near and dear to our mission here at the BBA. In 2003, we, alongside Greater Boston Legal Services, gave her the “Pillar of Justice Award,” for her role in saving legal aid services for low-income residents in the Commonwealth. Representative Khan has also filed and been an outspoken proponent on legislation that would ban the use of conversion therapy by licensed providers on minors in Massachusetts, which the BBA Council voted to endorse in 2015. As you may recall, the BBA has continued its advocacy on the bill filed by Representative Khan, H.1190, and an identical bill filed in the Senate, S.62 by Senator Mark Montigny this session. In June, we had the opportunity to present testimony in support of these bills before the Joint Committee on Children, Families, and Persons with Disabilities. You can read a full recap on our continued advocacy in support of the conversion therapy ban here.

Keynote Speaker

Of course, it wouldn’t be the BBA Annual Meeting without an exciting keynote speaker who always offers their own specific insights on major topics impacting the legal community. For example, last year Professor David Wilkins, Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School, reflected on major developments sure to impact the profession, including globalization and the rise in the sophistication of information technology. The year before, we were fortunate to hear from Governor Charlie Baker, who addressed a range of topics, including civil legal aid funding, justice reinvestment, and the importance of pro bono work.

This year, we are thrilled to be joined by Piper Kerman, author of the memoir Orange is the New Black: My Year in a Women’s Prison, which was adapted by Jenji Kohan into an Emmy Award-winning original Netflix series. Kerman is also an outspoken advocate of criminal justice reform. She has testified before the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights on solitary confinement and women prisoners and before the U.S. Senate Governmental Affairs and Homeland Security Committee on the federal Bureau of Prisons. Kerman was, in addition, invited to speak at the Obama White House about the need to support and expand re-entry and employment programs nationwide as well as the unique conditions facing women in the criminal justice system. We are excited to hear her unique perspective on the challenges facing our nation’s criminal justice system.

The timing could not be any better as well, as the BBA Criminal Justice Working Group, chaired by BBA Treasurer Marty Murphy, of Foley Hoag, and former BBA President Kathy Weinman, of Hogan Lovells, is nearing release of its own recommendations on criminal justice reform here in the Commonwealth. We hope this report will help shape and move the debate on criminal justice reform, which has been ramping up over the last few months, and which is sure to be a legislative priority in the State House in the coming months.

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Be sure to watch this space for more updates as our advocacy around the working group’s report gets underway, and if you haven’t yet registered for the Annual Meeting, it’s not too late!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

SJC Update: Court Narrows Felony-Murder Rule

It’s been a while since we checked in with updates from the Massachusetts Supreme Judicial Court (SJC), so when a landmark decision came out this week, changing the rules for felony-murder for first time since the Civil War, we thought this warranted a closer look.

Just yesterday, the SJC announced its decision in Commonwealth vs. Timothy Brown, related to the scope of criminal liability under the common-law felony-murder rule, which “imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.”

Justice Frank M. Gaziano, who drafted the decision, stated that “a unanimous court concludes that the felony-rule is constitutional” but that a “majority of Justices, through the concurrence of Chief Justice Gants … hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.” This means that felony-murder will no longer be an independent theory of liability for murder and will instead be “limited to its statutory role under G.L.c. 265, Section 1, as an aggravating element of murder, permitting a jury to find a defendant guilty of murder in the first degree where the murder was committed in the course of a felony punishable by life imprisonment even if it was not committed with deliberate premeditation or with extreme atrocity or cruelty.”

The Court addressed the issue in the case of defendant Timothy Brown, who was charged in relation to an attempted armed robbery and home invasion in Lowell, where two armed gunmen fatally shot brothers Hector and Tony Delgado in 2009. The Defendant was not present at the scene when the shooting occurred. The prosecutors in the case argued that Brown was liable as an accomplice to felony-murder, because he provided hooded sweatshirts to help conceal their identities and a pistol to one of the gunmen. Brown was convicted by a jury on two counts of felony-murder in the first degree arising from the predicate felonies of attempted commission of armed robbery, home invasion, and unlawful possession of a firearm and ammunition.

In an appeal filed this year, the defendant raised a number of claims, including that the Commonwealth introduced insufficient evidence to prove that he was a knowing participant in the felony-murders and that various errors by the judge and prosecution warranted reversal or a new trial. In addition, the appeal including arguments that the felony-murder rule should be abolished and that a new trial should be ordered under the Court’s extraordinary authority pursuant to G.L. c. 278, Section 33E, which states that the SJC shall review any first-degree murder conviction and “may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence. ”

The Court first held that the Commonwealth did introduce sufficient evidence and that the defendant’s other challenges did not raise error warranting reversal or a new trial as to any of the underlying convictions.

In relation to the defendant’s argument that the felony-murder rule should be abolished, the Court unanimously rejected the argument that the felony-murder rule is arbitrary and unjust in because it is contrary to the fundamental notion that an individual is culpable for his or her own misconduct, in violation of Article 12 of the Massachusetts Declaration of Rights. The Court pointed to their consistent rejection of arguments in the past that the rule is unconstitutional, noting that there was no reason to deviate from their decisions to that effect in Commonwealth v. Watkins (1978) and Commonwealth v. Moran(1982).

The Court also found, after reviewing the record pursuant to their authority under G.L. c. 278, Section 33E, the verdicts of felony-murder were not contrary to joint venture felony-murder jurisprudence or against the weight of the evidence, so as to warrant a new trial.  However, the Court did hold that  “in the circumstances of this case…pursuant to our authority under G.L. c. 278, Section 33E, the interests of justice require that the degree of guilt be reduced to that of murder in the second degree,” coming to this conclusion after finding that the defendant’s involvement was on the “remote outer fringes” of the joint venture.

This ruling has significant consequences for Timothy Brown, of course. He was previously sentenced to life in prison without the possibility of parole, based on the first degree murder charges. Now, however, since that sentence is vacated and the case is remanded back to the superior court for sentencing under the second-degree murder verdict, he will be eligible for parole after serving 15 years.

However, the decision, as a result of the concurrences, is also hugely significant for criminal law in the Commonwealth.  The Court declined to apply its ruling retrospectively, so it will have no effect on past convictions under the felony-murder rule.  But in the future, the Court provided that “the scope of felony-murder liability should be … narrowed, and … in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice.”

Defense attorneys hailed this decision.  Those who handle murder cases have long been troubled by the possibility that an injustice can result from application of the felony-murder where a defendant never intended to use violence.  They note that the judge in such a case can always impose a harsher sentence for the underlying offense when death results, but a mandatory life sentence for felony-murder is often unwarranted.  The Massachusetts Association of Criminal Defense Lawyers (MACDL) released a statement citing an amicus brief it had filed in a pending case, Commonwealth v. Morin, which had advanced an argument for the abolition of felony-murder.

The Boston Herald quoted appellate attorney Joe Schneiderman saying, “It is a very established rule, and a general principle of criminal law, that we punish someone for having a guilty mind with a guilty act.  Felony murder is unusual because the guilty act shows a guilty mind. The SJC has successfully untangled that issue.”

According to the Boston Globe — which noted that Michigan, Hawaii, and Kentucky had similarly revised their felony-murder laws — Plymouth District Attorney Timothy J. Cruz released a statement saying, “As pointed out by Justice Gaziano, the decision unfairly diminishes the seriousness of violent felonies that result in the deaths of innocent victims.”  There may be major ramifications of this ruling for how homicides are prosecuted in the Commonwealth.

In addition, court-watchers took note of the split ruling — with Chief Justice Gants, and Justices Lenk, Hines, and Budd forming a narrow majority in favor of the new felony-murder rule — and wonder whether it portends a division in upcoming criminal cases.  Since the argument was held in this case, Justice Geraldine Hines has retired, replaced by former Appeals Court Chief Justice Scott Kafker.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association