BBA Comments Eliminate Attorney Sanctions and, in Criminal Cases, Protect Identities

On August 10, the SJC released a new rule, SJC Rule 1:24, governing identifying information in court documents.  The rule is modeled on SJC guidelines that have been in place since 2009 and restricts parties and the courts from including certain personal identifying information in court documents.  It will take effect on November 1, 2016.

The BBA’s Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on an initial draft of the proposed rule in October 2015.  Their comments appear to have accounted for at least a couple of major changes in the final version of the rule:

  • Section 6 – The Court removed language permitting non-redaction of the following information in criminal and youthful offender cases as suggested by the privacy concerns raised in our comments:
    • Social Security number
    • Driver’s license number
    • State issued ID card number
    • Passport number
    • Defendant’s parent’s birth name identified as such
  • Section 8 – In response to concerns expressed by some of the Sections, the Court clarified language permitting courts to sanction attorneys for non-compliance through “corrective action.” As the Sections suggested, the Court added accompanying comments to Section 8, and adopted the Sections’ proposals that:
    • a judge should consider, in determining whether to take such action, the harm to privacy/financial interests that has occurred, the nature and amount of information improperly disclosed, and whether the non-compliance was “willful”.
    • a judge be granted broad discretion in determining appropriate action, including the option of requiring the responsible party to correct the redaction and refile the document.

We thank you for all your work on these comments and the courts for including us in their review process. We are pleased to see that these comments are making a difference.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Bill Clarifies Zoning Law and Promotes Real Estate Development

On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015, and Section Co-Chairs Hannah Kilson and Matthew Lawlor.

This bill amends Section 7 of Chapter 40A, concerning the enforcement of local zoning regulations. In particular, Section 7 spells out the circumstances under which violations of Chapter 40A, or a zoning by-law or ordinance, or a variance or permit, can lead to a “non-complying” building being ordered to be removed, altered, or relocated.  Prior to the passage of this bill, the law prohibited a municipality from taking such enforcement action more than ten years from the date after the commencement of the alleged violation.

However, Section 7 was incomplete, and did not explicitly provide that a building which had survived the statutory limitations period became a valid non-conforming structure.  As a result, if a structure which did not comply with current zoning laws was destroyed after ten years, it was not grandfathered under the zoning laws in effect when it was built, and it had to be rebuilt under new zoning requirements, which could be more restrictive or prohibitively expensive.

H3611 corrects this problem by granting legal status, subject to the provisions of G.L. c. 40A §6, as well as local ordinances or by-laws, to non-conforming structures that have survived the applicable statute of limitations.  This will provide clarity and thus offer protection to property owners and their lenders.  In limited circumstances, those structures, as they existed on the date they were erected or altered, would be deemed compliant with Chapter 40A (and any ordinance or by-law adopted in accordance with Chapter 40A) and thus valid, legally non-conforming structures.  By lifting the cloud of uncertainty created by the current law, H3611 will help real estate owners more freely convey or encumber property containing older non-complying buildings or building additions.

At the same time, the measure will have no adverse effect on municipalities, since it leaves unchanged their power to enforce their ordinances in this regard within ten years of the violation.  In fact, Section 3 of the newly enacted bill includes language intended to give municipalities an additional six months to take action on non-conforming structures that have been in existence for between nine and ten years as of the new law’s effective date in November.

We are proud of this latest development and commend the Section for its diligent work on this bill over the last two decades.  We look forward to advocating for more bills backed by your Section in the next legislative session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Defends Attorney-Client Privilege and Access to DNA Testing

At the BBA, we pride ourselves on advancing the highest standards of excellence for the legal profession, facilitating access to justice, and serving the community at large – it’s all right there in our mission statement.   Rarely do we have the opportunity to take part in a single cause that covers all three goals, which is why we jumped at the chance to submit an amicus brief in the case of Commonwealth v. Wade (SJC-11913).

The case is of major importance to the BBA not only because it deals with those core issues – including access to justice and attorney-client privilege – but also because it stems from Chapter 278A, the state’s 2012 post-conviction DNA testing law, which the BBA played a pivotal role in drafting and enacting.  Specifically, it addresses whether a criminal defendant qualifies, under the Massachusetts post-conviction DNA testing law, for DNA testing of evidence from a crime he was convicted of in 1997.

Background – BBA Successfully Advocates for Post-Conviction DNA Testing Law

A brief history:

At issue in the case is interpretation of Chapter 278A, Section 3(b)(5), which permits new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  It sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now.

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.

These prongs are nearly identical to the corresponding recommendation contained in Getting It Right.

The Basis for Wade

The trial judge in the Wade case interpreted Ch. 278A Section 3(b)(5) to require a lawyer to prove all of the prongs, rather than applying the disjunctive reading, as our brief argues and we believe the Legislature intended, that a lawyer must prove only a single prong.  Furthermore, the trial judge interpreted the fourth prong to require the attorney to show the “primary cause” or “actual reason” that DNA testing was not pursued at trial, applying a subjective standard to the “reasonable attorney” test.  Based on this interpretation, the trial judge required the defense attorney to violate attorney-client privilege by testifying on why the now requested DNA testing was not sought at the initial trial.

Our amicus brief, authored by a team from K&L Gates including former BBA Council member Mike Ricciuti, Kathleen Parker, and Patrick McCooe, argues that the fourth prong calls for an objective standard and that the law does not actually require a “primary cause” finding – the test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney would have sought the requested analysis.  Thus, the judge erred in violating attorney-client privilege, and, in doing so, frustrated the purpose of the law in a way that could potentially chill future claims, denying wrongfully-convicted individuals a pathway to establish their innocence.

Oral Argument

The SJC heard oral argument on January 11 (watch the video here).  The Justices pushed both sides to explain where to draw the line on protecting attorney-client privilege.  Counsel for the defendant argued, much like our brief, that an attorney should never have to violate the privilege to testify, because the law’s standard is objective, asking only what a reasonably effective attorney would do, and not whether the attorney in a particular case was or was not reasonably effective.  In her words, “the piercing of the attorney-client privilege was extreme judicial overreaching. It was excessive.”  While she conceded that it would be appropriate for the court to ask the lawyer about his or her decision making, the “attorney-client privilege should be sacrosanct.”

Counsel for the Commonwealth took the opposite view, arguing in line with the Superior Court judge that the correct reading of the statute requires defense counsel to name the “primary cause” why testing was not pursued and that a judge would be justified in requiring them to speak on the issue regardless of privilege.  Furthermore, the Commonwealth “can always” call counsel to testify as to their reasoning in not getting then-available testing, even if the defendant is not claiming that the a reasonably effective trial attorney would have sought testing (see clause (iv) above).

The Decision

On July 29, the SJC issued its 6-0 decision (Chief Justice Gants was not present).  We were extremely pleased to find that it held in line with the arguments of our brief, that it was an abuse of discretion for the trial judge to deny Wade’s motion for DNA testing based on his misinterpretation of the statute requiring the attorney to demonstrate the “primary reason” why he did not seek the requested analysis.

The decision makes clear that the statute statue’s plain language means each of the five prongs in the statute “provides a moving party with alternate pathways to establish that he or she is entitled to the requested [DNA] analysis . . . . Indeed it would be nonsensical to attribute a conjunctive meaning to the word “or” as used in this section… ” (p. 12-13).  On the trial judge’s requirement of finding the “primary reason” or “actual reason” why DNA testing was not pursued at trial, the Supreme Court decision explains that this language does not appear in the act, and there is no other language indicating such a requirement (p.15).  Instead, the statute’s “reasonably effective attorney” test “is an objective one” (p. 16).  Thus, the trial judge erred when finding that attorney-client privilege had been waived, forcing trial counsel to reveal privileged communications, and denying Wade’s motion to strike those answers.  The “reasonably effective attorney” test “does not require testimony or an affidavit from trial counsel” (p.20).

The court reversed the motions denying scientific testing and the motion to strike the protected attorney-client privileged testimony and remanded the case to the Superior Court for an order permitting the requested DNA testing.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Final FY17 Budget Update

On July 31, the legislative session came to a close, complete with a few overrides, by way of a two-thirds vote in each branch, of Governor Charlie Baker’s line-item vetoes to the budget that legislators had sent him (H4450).

In signing the budget on July 8, amid news that the Commonwealth could be facing as much as a nearly $1 billion budget deficit, the Governor exercised his authority to target many legislative appropriations for cuts amounting to $256 million.  The below numbers reflect the final state for the FY17 budget, after the Legislature reversed a number of those cuts, one by one, in the final days of session.

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000 ($500,000 added through a floor amendment)
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000 ($1,000,000 added through a floor amendment)
  • Conference Committee Final: $18,000,000
  • Governor Final: $18,000,000
  • FY17 Final: $18,000,000

We are thrilled that the FY17 budget included an extra $1 million over last year’s figure in funding for legal services—a top BBA priority—and grateful to the Governor for not only sparing the MLAC line-item from his veto pen but also highlighting this increase in his budget message.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from both legislators and the Governor to assist those in need of civil legal aid.  It also continues to show the message of our BBA Task Force to Expand Civil Legal Aid in Massachusetts—that MLAC funding produces a positive return on investment by preventing “back-end” costs—has gotten through.

Trial Court

  • Request: $654,374,856 + Modules for additional initiatives
  • Governor’s Budget: $638,606,000
  • House Ways and Means Budget: $639,900,000 (including Specialty Courts module)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303
  • Conference Committee Final: $639,762,683
  • Governor Final: $632,969,055
  • FY17 Final: $638,940,097

It is unfortunate that this final number was not higher, but we nevertheless greatly appreciate that the Legislature showed its strong support for the judicial branch by overriding the Governor’s vetoes on eight of sixteen Trial Court line-items, restoring roughly $6 million of the $6.8 million in cuts.  Failure to do so would have placed the courts in an alarming position, so we are grateful to legislators for making this a priority during the end-of-session crush of business and despite tough fiscal constraints.  We also note that the Legislature overrode vetoes for two of the four line-items funding the Supreme Judicial Court, restoring over $100,000 in funding for the Commonwealth’s highest court.

The next few years will be very important for court funding in order for the courts to continue to provide the highest level of justice for the people of Massachusetts.  Continued underfunding of the courts would exacerbate a number of challenges, from aggravating long-standing infrastructure problems (many court houses need significant repairs and updates as well as security updates) to stifling innovations such as the Specialty Courts program, which addresses the issues underlying criminal behavior and produces great outcomes by reducing recidivism.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614
  • Conference Committee Final: $0
  • Governor Final: $0
  • FY17 Final: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases that involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strengths is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

The total cost to the state for the expansion is estimated to be $2.4 million per year.  The Governor’s budget proposal included $1 million for Specialty Court, enough to get it started and operational for the last 6 months of FY17, but the House did not follow his lead, leaving this measure out of its budget entirely.  The Senate provided similar language and funding to the Governor’s proposal, but disappointingly, the Conference Committee did not include it.  So we will back making the case for Housing Court expansion in the new session, starting next January.  We look forward to the FY18 budget process and, as always, urge you to help us make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

We Want Your Feedback: Online Access to Court Records Rules and Experiences

As you have likely heard by now, the SJC approved and released Trial Court Rule XIV regarding online access to court records.  This follows the well-documented  recent challenges (see: Courts Cut Online Access to Criminal Cases, Trial Court Fails Transparency Test in Attorney Portal Lockdown, To Block Data Harvesting, Trial Courts Lock Down Attorney Web Portal) faced by the the Trial Court after they detected instances of unauthorized “data harvesting.”  The BBA has long been a part of this discussion, including, most recently, through the submission of comments from a working group and various practice-area Sections to the Trial Court’s Public Access to Court Records Committee regarding forthcoming rules on this issue.

We are pleased to report that the Trial Court has been responsive to the concerns expressed in the articles linked-to above and to our comments, and note their open communication regarding the process as exemplified by a recent letter to bar leaders.

Some of the major points raised by our comments are included in the final rule, including:

  • The Committee’s recommendation to create a Standing Committee to regularly review the rules in light of recent developments and changes in technology and the addition of language to Rule 5(a)(1)(ii) specifically aimed at these sorts of updates, speaks directly to the second consensus point of the BBA’s Working Group (BBA Comments page 1) recommending periodic review of the database and technology.
  • Editing Rule 1(d) to note that all courts will maintain a public computer kiosk at the Clerk’s office is responsive to our note on inconsistencies in the proposed rules on this point (see BBA Comments p. 12).
  • Revising Rule 2(j)(1) to remove the outright ban on flash photography as recommended on page 8 of the BBA’s Comments given the prevalence and convenience of cell-phone scanners which may require a small an unobtrusive flash.
  • Adding certain case records to the list of protected documents that cannot be available online, including mental health reports and certain civil commitment and harassment and domestic abuse records (see BBA Comments p. 11).
  • Updating Rule 6 to clarify the process for court users to correct clerical errors in electronic dockets using language recommended on page 10 of our Comments.

As we continue this discussion with the courts, your feedback is essential.  Please send us your comments regarding online access to court records.  We hope to share many of them with the courts as we work with them on this complex issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Juvenile Justice Through Diversion

A couple of weeks ago, we were pleased to report on our Juvenile Restorative Justice Symposium, a half-day program focused on restorative justice approaches for young offenders.  Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment. Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator.

Today, we are excited to report on our latest program, a July 19 forum on diversion and evidence-based approaches to juvenile justice, hosted by the BBA’s Civil Rights and Civil Liberties Section along with Citizens for Juvenile Justice.  Diverting juveniles is the practice of referring them to various programs that hold them accountable without having the go through the traditional justice system.  The restorative justice approach explained in our prior post is one example of a diversion approach.  The goal is to hold youths accountable without creating a criminal record.

This is especially important in Massachusetts, which does not permit record expungement.  The day before our program, the Boston Globe posted an informative article on this very issue, explaining the challenges individuals with juvenile records can face for many years after their cases are resolved in the justice system.  On July 12, the Senate supported a bill (S2424) by a vote of 31-9 that would, among other reforms, permit expungement of misdemeanor offenses from juvenile records.

Regardless of whether the bill is enacted, the take-away from our forum was clear – diversion, when executed correctly, can be more effective at achieving justice, promoting rehabilitation, and reducing recidivism than traditional justice systems.  The fact that it avoids creation of a record that can hinder a young people for the rest of their lives is only an added benefit.

DSC_0083 croppedSana Fadel Delivers Opening Remarks

Massachusetts is making progress on diversion, but the presenters made clear that there is still a long way to go.  At this point, Sana Fadel, Deputy Director of Citizens for Juvenile Justice, who’s Executive Director Naoka Carey provided closing remarks, explained that diversion programs are established ad hoc and vary by county.  As a result, we have instances of “justice by geography,” in the words of First Justice of the Middlesex Juvenile Court, Jay Blitzman, whereby geography plays a disproportionate role in determining juvenile justice outcomes (check out his July 20 editorial on juvenile record expungement from Commonwealth Magazine).  This also hinders the collection of clear data on effectiveness and outcomes.  Yet while uniformity is still a goal, Fadel reported that things seem to be moving in the right direction, in large part thanks to support from the District Attorneys who have implemented diversion programs in 10 of 11 jurisdictions.

DSC_0087 Cropped

Judge Blitzman

One of the key points made by multiple panelists was the need for individualized and graduated responses in diversion.  While diversion done well has repeatedly resulted in positive outcomes, diversion done poorly can have the opposite effect.  The key is to require the appropriate level of engagement for the youthful offender.  Too little and the point doesn’t get across, too much and the diversion program can stifle a youth’s positive connections outside the justice system and build resistance and resentment.  However, with the proper amount of diversion programming, youths exhibit a remarkable tendency to learn from their mistakes, make victims whole again, and avoid future criminal behavior.

DSC_0079

Panelists (left to right): Kara Hayes, Vincent Schiraldi, and Judge Blitzman

Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School’s Program in Criminal Justice, spoke about how he worked to increase diversion as New York City’s commissioner of probation.  Through collaboration with the probation department, schools, courts, police, and even big box stores, the leaders of which he convinced to not prosecute all juvenile shoplifters, he was able to divert 41% of juvenile cases, an increase of more than 15%.  A large part of his success appeared to be driven by his tireless efforts toward bringing the community together to embrace diversion as a reasonable justice system alternative and also by tracking and regularly reporting data demonstrating the effectiveness of his work.

Massachusetts is still far from these levels of diversion, but panelists made clear that it is increasingly being accepted as a reasonable alternative to traditional justice.  Kara Hayes, Chief of Community Engagement at the Suffolk County District Attorney’s Office, reported that 25% of juveniles in Suffolk County are currently diverted before being arraigned.  This seems to place us in a similar position as New York City prior to Vincent’s arrival, and the stars appear to be aligning for further increases.  As Kara explained, diversion programs are also beneficial to victims, who often gain more satisfaction and closure than through the justice system, which can be impersonal and leave them feeling cast aside.  As a result, the Suffolk County District Attorney’s office is starting a pilot diversion program in the county that it hopes to have up and running by the start of the school year.  The pilot will include a dedicated program coordinator whose goal is to continue the thoughtful and strategic expansion of diversion to best fulfill the needs of the community.

We are devoted to continuing to provide thought provoking and timely programs and discussions on these sorts of developing areas of justice.  We hope program attendees left feeling informed and empowered to make an impact and we look forward to keeping you apprised of the latest developments in juvenile justice practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Celebrating Enactment of the Transgender Rights Bill

We’re thrilled that last Friday Governor Charlie Baker signed the Transgender Rights Bill (S2407) into law.  Massachusetts joins 17 other states and the District of Columbia, along with more than 200 cities and counties, explicitly prohibiting discrimination based on gender identity.  Here is a brief breakdown of the various provisions of the bill:

  • Section 1 prohibits public accommodation discrimination for gender identity.
  • Section 2 requires proprietors of public accommodations segregated by sex to provide the accommodation consistent with individuals’ gender identity.
  • Section 3 adds gender identity to the list of actionable public accommodation transgressions, making discrimination punishable by a fine of up to $2,500 and/or imprisonment up to 1 year and potentially liable for additional damages for the victim.
  • Section 4 calls on the Massachusetts Commission Against Discrimination (MCAD) and the Attorney General’s Office to make rules and regulations by September 1, 2016, that effectuate the purposes of the act, including defining when and how gender identity may be evidenced and guidance for legal action against any person who asserts gender identity for an improper purpose.

The new law will be phased in, with Sections 1 and 4 taking effect immediately and Sections 2 and 3 taking effect on October 1, 2016.

This compromise version of the bill emerged from a legislative conference committee on July 6.  The committee was chaired by the Judiciary Committee Co-Chairs, Senator William Brownsberger and Representative John Fernandes, and included Senators Sonia Chang-Diaz and Bruce Tarr and Representatives Sarah Peake and Sheila Harrington.  They were tasked with amalgamating the House (H4343) and Senate (S735) versions of the bill, which had different effective dates (Senate: immediately, House: January 1, 2017).  Furthermore, the House version included language similar to the current Section 4, requiring the MCAD and Attorney General to consider rules for enforcement and misuse, that was not in the Senate version.  The Senate passed its version by a vote of 33-4 on May 12.  The House passed its version, 116-36, on June 1.

The law was passed despite some opposition centered on the use of bathrooms, which had previously had an impact in 2011, when public accommodations protections were removed from a broad transgender-rights bill before it passed that year.  The BBA supported that law (read our testimony here), which was enacted without the public-accommodations piece, taking effect on July 1, 2012.

Even without public accommodation protections, that bill took important steps forward, giving transgender people clear legal recourse if they face discrimination at work, in public housing, education, or when applying for credit.  At the time, Massachusetts became the 16th state to add gender identity to its non-discrimination laws in these areas.  It also added gender identity to the Massachusetts hate crime statutes.

We weighed in shortly afterwards, holding a number of programs on the impacts of the new law and publishing an article in the Boston Bar Journal highlighting ways lawyers could try to combat public accommodation discrimination for transgender victims, even without explicit legal protection.  We are pleased that, finally, lawyers representing transgender discrimination victims will no longer have to face the challenges and uncertainty highlighted in that article.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Update

On July 8, the Governor signed the budget amid news that the Commonwealth faces a nearly $1 billion budget deficit.  Despite vetoing $256 million from the Legislature’s conference committee budget (H4450), the Governor maintained a $1 million increase for civil legal aid funding and highlighted the increase in his budget message.

From here, the budget returns to the Legislature, which can override the Governor’s vetoes with a two-thirds vote in each branch.  The House votes first, followed by the Senate. Here is a breakdown of where things currently stand (updated to reflect the Governor’s final budget):

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000 ($500,000 added through a floor amendment)
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000 ($1,000,000 added through a floor amendment)
  • Conference Committee Final: $18,000,000
  • Governor Final: $18,000,000

We are thrilled that the Governor included an extra $1 million in funding for legal services over last year’s figure.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from legislators to assist those in need of civil legal aid.  It also continues to show the message of our BBA Task Force to Expand Civil Legal Aid in Massachusetts—that MLAC funding produces a positive return on investment by preventing “back-end” costs—has gotten through.

Trial Court

  • Request: $654,374,856 + Modules for additional initiatives
  • Governor’s Budget: $638,606,000
  • House Ways and Means Budget: $639,900,000 (including Specialty Courts module)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303
  • Conference Committee Final: $639,762,683
  • Governor Final: $632,969,055

It is unfortunate that this number was not higher, but we nevertheless appreciate that this funding amount is a slight increase over last year’s appropriation of $631.5 million.  In order for the courts to continue to provide the highest level of justice for the people of Massachusetts, they need adequate funding.  Underfunding of the courts will present a number of challenges, from infrastructure problems (many court houses need significant repairs and updates as well as security updates) to stifling innovations such as the Specialty Courts program, which addresses the issues underlying criminal behavior and produces great outcomes by reducing recidivism.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614
  • Conference Committee Final: $0
  • Governor Final: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases that involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strengths is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget proposal included $1 million for Specialty Court, enough to get it started and operational for the last 6 months of FY17, but the House did not follow his lead, leaving this measure out of its budget entirely.  The Senate provided similar language and funding to the Governor’s proposal, but disappointingly, the Conference Committee did not.  We hope this measure will resurface at a later stage in this year’s session, even if only in the form of legislative language authorizing the expansion (but with no money attached).

We look forward to keeping you updated on the latest budget developments and, as always, urge you to make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Criminal Justice Reform through Juvenile Restorative Justice

It was quite a week here at the Boston Bar Association and we’ve got you covered here in case you missed any of the action.  First is a write-up from our Juvenile Restorative Justice Symposium, a half day program developed by the BBA’s 2015-16 Public Interest Leadership Program (PILP).  Further below is a breakdown of our Benefits of Judicial Diversity program followed by an explanation of a recent Appeals Court decision on reopening settlement agreements in divorce cases.

PILP assembles an annual class of young attorneys with interest in civic engagement and public service who are looking to embrace the leadership role of lawyers in service to their community, their profession, and the Commonwealth.  PILP participants connect with prominent community leaders at meetings and events, learn about the challenges confronting local organizations and take part in efforts to address specific community needs.  After completing the 14-month program, graduates enter a growing network of accomplished alumni who provide mentoring and support to their successors.

This year’s PILP class took an interest in restorative justice, a model used as an approach to criminal justice and community harm that emphasizes repairing the damage done by a criminal event as opposed to just handing down a punishment.  It is a collaborative decision-making process that brings together the offenders, victims, and other affected community members.  It seeks to hold offenders accountable by acknowledging and taking responsibility for their offenses.  Studies have shown that recidivism rates are significantly reduced for participants in restorative justice programs, and the costs are far lower than traditional court processes such as prosecution and incarceration.

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Erin Freeborn

The symposium began with an introduction by Erin Freeborn, Executive Director of Communities for Restorative Justice (C4RJ).  She explained the four principles of restorative justice, a process that has existed in some form or another since the dawn of human society.  They are:

  1. Voluntary participation
  2. Crime, meaning a violation of people and relationships creating a harm that needs to be rectified.
  3. Inclusion and empowerment of those most affected. Part of the process is to find out how to rectify the situation, sometimes with information (an explanation for why the crime was committed) and/or sometimes with material needs.
  4. An understanding that the harm cannot be undone, but that all parties will strive to make things as right as possible to try to put the situation back into balance and collaboratively restore order.

Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment for the offender.

Traditional ApproachRestorative Justice Approach
What law was broken?  How will the offender be charged?Who has been hurt?
Who did it?What are the victim’s needs?
What should we do to them?  What will be their punishment/sentence?Who is obligated to meet those needs and how can they do so?

Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator who sets their expectations and lays the ground rules:

  • Everyone takes turns talking and has their chance to speak without interruption.
  • There is no hierarchy, so the facilitator or judge, the victim, and the accused individual are all on equal footing.
  • The circle can include supporters of each party, so in the juvenile context this may mean family members or friends of the offender, as well as the victim.
  • Everyone must take part voluntarily and can pull out at any time and insist on the traditional justice methods.
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Panelists discussing juvenile restorative justice

An extensive panel discussion followed with an examination of current applications of juvenile restorative justice in the Commonwealth.  It was moderated by Northeastern University School of Law Professor Susan Maze-Rothstein and featured five leaders in the restorative and criminal justice field:

The panelists began by considering the appropriateness and effectiveness of restorative justice.  There seemed to be consensus that restorative justice can and often does work better than traditional methods, and that once arraignment takes place and juveniles are given a record, their lives are forever changed, so it is especially important to consider carefully what happens before that step.  Furthermore, restorative justice can serve as a means of reconsidering juvenile justice generally and the need to discuss and change behaviors for youths.  As Commissioner Dolan explained, the traditional response was to simply remove youthful offenders from their situation and hold them in detention for a certain amount of time without providing any help to resolve the incident or underlying issues.  Now, thanks at least in part to the ideas underlying restorative justice, there is a far greater focus on intervening with a holistic approach to solve problems – both to restore balance from the incident leading to the detention and also to resolve underlying issues that prompted the behavior.

While the panelists spoke of their positive experiences with juvenile restorative justice in Massachusetts, they also repeatedly spoke of New Zealand, an international leader in restorative justice, which passed legislation to completely overhaul its juvenile criminal justice system in order to focus its time and resources on restorative justice practices.  As Ziyad Hopkins explained from his own research there, the New Zealand law requires that juvenile offenders take part in a restorative justice program before they can possibly enter the court system, and often provides a means for them to avoid the traditional justice system altogether.  As a result, the number of cases in juvenile court dropped by 80% and juvenile arrest rates did as well.

However, best restorative justice practices are still being developed in Massachusetts.  Panelists discussed the importance of protecting confidentiality in restorative justice discussions, especially should the case end up utilizing traditional justice processes.  Potential misuse of restorative justice discussions to fish for evidence would undermine the entire process.  There were also concerns about whether offenders in restorative justice proceedings need representation by an attorney.  On one hand, legal representation ensures that accused juveniles understand the process and that their rights are protected.  As one panelist put it, all diversion programs inherently implicate a certain level of coercion, and thus it is of the utmost importance that a juvenile and their family have someone to explain the process, options, and minutiae to them.  Furthermore, juveniles have underdeveloped verbal and processing skills and the restorative justice process can be intimidating – an attorney assures the offender’s voice is heard.  On the other hand, it starts to make restorative justice proceedings more similar to traditional justice and may stifle the free and willing exchange of ideas these procedures require in order to be effective.

Currently, restorative justice programs vary greatly by location within the Commonwealth.  They have been implemented piecemeal in certain communities and are yet to catch on in others.  The hope seems to be that they will continue to spread on a grassroots level as more communities recognize their value and importance and that eventually legislation may provide for a uniform and adequately funded statewide system.  There currently is legislation pending (S71/H368, An Act promoting restorative justice practices), which panelists supported, though they noted that it stops short of requiring restorative justice proceedings.

The keynote speaker, First Justice of the Middlesex County Juvenile Court Jay Blitzman, has been a pioneer in the restorative justice field.  He told how his views shifted on restorative justice.  When he first heard of the idea as a “hard-charging defense attorney” he was appalled, feeling like youths were giving up their right to have an attorney stand up for their interests.  It was not until he took part in the “circle” process that he realized that in many ways restorative justice was a richer way for young people to be heard.  He found that taking part in the circle made him a more reflective listener, less judgmental, and better able to facilitate traditional justice proceedings.

He noted the importance of engaging youths through restorative justice.  The circle process gives them a voice, balancing accountability with support.  It assists the community both by solving the problem(s) at hand and by bringing the involved individuals more into the community by encouraging them to take responsibility for their actions, devise a solution, and avoid creating a record.  Justice Blitzman described a common scenario in which a juvenile is involved in a domestic violence case against a family member – typically, a parent or sibling.  These cases rarely go to trial, and are often dismissed, but once the juvenile is arraigned, they have a record which can have many negative consequences for their ability to return to their community, such as limits on housing and jobs.  He suggested that an expungement bill currently before the legislature (S64) could fix part of the problem, but noted that the better solution was to avoid creating the record in the first place through restorative justice proceedings.

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Senator Jamie Eldridge

Senator Jamie Eldridge, a legislative leader on criminal justice issues and Co-Chair of the Harm Reduction and Drug Law Reform Caucus, led a lunch discussion on the future of restorative justice in Massachusetts.  He described the aforementioned bills and their status in the Legislature.  As the sponsor of restorative justice legislation himself, he was hopeful that they might move this session and encouraged attendees to reach out to their legislators to voice their support.  However, he was frank that they faced uphill battles to pass in the final month of this legislative session.  He was optimistic that restorative justice measures might be included in a more comprehensive criminal justice overhaul that he predicted would come next legislative session following the full report of the Council of State Governments, which is conducting an in-depth review of the current criminal justice picture in Massachusetts at the request of Governor Charlie Baker, Speaker of the House Robert DeLeo, Senate President Stanley Rosenberg, and Supreme Judicial Court Chief Justice Ralph Gants.

In all, the symposium was a huge success.  The discussion was lively and informative and we are proud to be at the forefront of considering this issue.  We will, as always, keep you posted on what happens with the relevant legislation this session and look forward to reporting on forthcoming criminal justice reforms.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association