What Will Become of Your Digital Assets?

If you’re reading this, that’s a good indication that you have an e-mail account.  You probably have a number of other on-line accounts, too—Facebook, Twitter, Instagram, and so on.  You may conduct a great deal of business exclusively on-line as well.  Perhaps you have money saved with a bank that exists only on-line, or you may have chosen to receive financial statements only via e-mail.  But have you given much thought to what will become of all these electronic communications and other digital assets (and they really should be thought of as assets) after you die or become incapacitated?

Chances are you haven’t … unless you’re a trusts-and-estates practitioner, in which case you can’t help but have noticed the lack of guidance on this issue from either the Legislature or the courts—even as we’ve come to live more and more of our lives “in the cloud,” so to speak.  Few decedents leave clear guidance as to their wishes regarding their digital assets, and policies are varied and often difficult for users to find (if they even exist) among the companies that act as custodians for on-line accounts.

All of this adds up to a growing problem, but one that the Uniform Law Commission set out to address by promulgating the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in 2016.  This week, the BBA Council, acting on the recommendation of our Trusts & Estates Law Section, voted to endorse that Massachusetts adopt RUFADAA.

Joe Bierwirth, of Hemenway & Barnes, presented the proposal to the Council alongside his Trusts & Estates co-chair, Andy Rothstein of Goulston & Storrs.  “This is an area of the law where we very much need some guidance, given the absence of statutes or case law,” Bierwirth told Issue Spot.  “While practitioners may not agree 100% on the ideal approach, adoption of RUFADAA would be helpful in setting the ground rules.”

This proposed uniform act, which has already been adopted in some form by at least 24 other states, would modernize fiduciary law for the Internet age.  It would provide some clarity to the law concerning a growing problem, helping Internet account providers, users, their fiduciaries, and the courts by creating a formal process to determine a fiduciary’s authority to access digital assets, while allowing a user to have control over how that process will play out in their case.

Fiduciaries are the people appointed to manage our property when we die or lose the capacity to manage it ourselves.  The bill explicitly covers personal representatives (who manage decedents’ estates), conservators (appointed to assist protected persons), trustees (only for the purpose of managing trust property), and agents acting under power of attorney.

Nearly everyone today has digital assets, such as documents, photographs, e-mail, and social media accounts, yet fiduciaries are often prevented from accessing those accounts by password protection or restrictive terms of service.  Digital assets may have real value, both monetary and sentimental, but they also present novel privacy concerns.  RUFADAA seeks to balance the interests of fiduciaries in managing digital assets in furtherance of their responsibilities with the privacy interests of the user—and potentially those with whom they communicated—against unwarranted disclosure.

The bill does so in part by establishing a hierarchy to determine the preferences of the user: First is a so-called “online tool” by which a user has named someone to manage their digital assets upon death or incapacity.  That person is considered the “designated recipient” under the bill, rather than a fiduciary, and the user could conceivably name a different person for each account.  The user could also direct the provider not to allow any access.

Next in the hierarchy is a will or other properly executed document, either allowing or prohibiting access.  Finally, in the absence of either of the above, the provider’s terms-of-service agreement will apply as a default.

The other way the bill balances interests is by granting a fiduciary full access to the content of electronic communications, in particular, only when authorized by the user, or when the user was the originator of the communication.  In other instances, unless a court orders otherwise, the fiduciary’s access is limited to a catalog of the communications, including such information as the addressee, sender, and date and time—rather than the full content.

It should also be noted that RUFADAA leaves unaffected other laws, such as fiduciary, probate, trust, banking, investment securities, agency, and privacy law.  Any fiduciary would still be prohibited from violating fiduciary responsibilities by divulging or publicizing any information obtained through RUFADAA.  It also does not grant a fiduciary access to an employer’s internal e-mail account that was used by the user.

One complication in all this has been the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act (18 U.S.C. Section 2701, et seq.)  Created in a pre-World Wide Web era, when few people held on-line accounts, that law set out to protect the content of a user’s electronic communications by prohibiting service providers from voluntarily disclosing a user’s content unless authorized, or under certain exceptions.  One of those exceptions has to do with “lawful consent” of the user, but the SCA is silent as to whether fiduciaries should be considered to have the consent of the users for whom they act.

As a result, the Supreme Judicial Court recently heard arguments in a case (Ajemian v. Yahoo!, Inc.) that pits Yahoo! against a user’s next of kin, who are seeking access to his Yahoo! account.  That case turns on whether the Act prohibits disclosure of the contents of a deceased e-mail account-holder’s account, including the communications contained therein, to the administrators of his or her estate—in this instance, represented by his two siblings, who argue that they should have access, under one of the Act’s exceptions, as their late brother’s agents.  Yahoo! asserts that the exception does not apply, and that the company is therefore barred from disclosing the contents of the e-mails at issue.

We will know soon what the Court decides, and how the Legislature chooses to address the issue (if at all).  But we appear to be a bit closer to finally having some clarity in this area.  In any event, as Trusts & Estates Section co-chair Andy Rothstein points out, “Regardless of what is ultimately enacted, it’s simply good practice to include decisions about digital assets as part of the estate-planning process.”

—Michael Avitzur
Government Relations Director
Boston Bar Association

Recent Developments in the Law on Jurors

Sometimes a series of news items come across our desk in quick succession and we can’t help but see connections.  And sometimes, like the Globe’s sports columnist Dan O’Shaughnessy, we’re just trying to string together a number of random ideas on deadline.  In the hope that you’ll view this more in the first category than the second, here’s the scoop on three recent developments regarding juries:


Racial Bias in the Jury Room

In a case that tested the sanctity of juror deliberations, the U.S. Supreme Court ruled in Pena-Rodriguez v. Colorado that a defendant could seek a new trial based on a showing that one of the jurors who convicted him was racially biased, even though this information emerged from the jury room rather than voir dire.  The 5-3 decision, released on March 6, held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the common-law no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury-trial guarantee.

Jury deliberations are presumed to be secret, and jurors generally cannot testify after a verdict that improper considerations had swayed the jury.  Over the years, that rule has been codified in state and federal rules of evidence, but it falls short of a blanket prohibition on piercing the veil.  In fact, juror testimony was already permitted to show that (1) the jury was given improper information from outside about the case, (2) someone tampered with the jury with bribes or threats, or (3) someone on the jury wrote down the wrong verdict on the official form.

The facts in Pena-Rodriguez are troubling and disheartening, to say the least: After the defendant was convicted of a sex offense, two jurors came forward to allege that another juror had injected into deliberations his own opinion—as a former police officer, no less—that the defendant must be guilty of a sex offense “because he’s Mexican, and Mexican men take whatever they want”—and that that “nine times out of ten,” Mexican men are guilty of “being aggressive toward women and young girls.”  Nevertheless, following the Colorado rule, the trial court refused to hear the evidence, and an appellate court affirmed the conviction.

In previous cases, the Court had declined to allow testimony from former jurors regarding either fellow jurors’ drug and alcohol use or their lies during voir dire about impartiality.  Here, though, the Court ruled that racial animus is different.  Writing for the majority, Justice Anthony Kennedy called it “a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice,” and one that “implicates unique historical, constitutional, and institutional concerns.”  Thus, a “constitutional rule that racial bias in the justice system must be addressed … is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”  The defendant was granted a new trial.


Trial Judge’s Discretion on Peremptory Challenges

Meanwhile, the Supreme Judicial Court of Massachusetts (SJC) issued a decision on February 28 in the closely-watched case of Commonwealth v. Oberle (SJC 12149).  A unanimous high court let stand a conviction in spite of the defendant’s claims that the trial judge had improperly denied his use of a peremptory challenge.

The defendant faced charges of domestic violence against his girlfriend.  Seven of the first eight venire members called for individual voir dire were women.  After defense counsel exercised his third peremptory strike, all to exclude women, the trial judge sua sponte found a pattern of discrimination and determined that the defendant could not justify two of his three challenges.  When counsel next used a peremptory strike on a female prospective juror, the judge disallowed it, even though the juror had specialized training in detecting and reporting domestic abuse and had done so on three occasions.  In response to counsel’s articulation of this rationale, the judge decided, without further explanation, that this rationale was a pretext, and the juror was seated notwithstanding the defendant’s objection.

The case presented two questions regarding voir dire: What standards, if any, govern a judge’s finding of a pattern of discriminatory strikes early in voir dire when all but one potential juror called for questioning are part of the same discrete group, and that group comprises half the venire; and what restrictions, if any, the Supreme Court’s recent decision in Foster v. Chatman places on a trial court’s authority to decide that an unquestionably adequate, group-neutral explanation for use of a peremptory challenge is nevertheless a pretext for impermissible discrimination.

The SJC noted the trial judge’s “considerable discretion” in ruling whether a permissible ground for the peremptory challenge was shown.  After a prima facie showing of a discriminatory pattern is made, the party exercising the challenge bears the burden of showing a “group neutral” explanation for the challenge.  The judge then considers whether the explanation is both “adequate” and “genuine.”  The Court found that “unfortunately” no specific findings on whether the challenge was “adequate” were made here, but even assuming the explanation was adequate, “the judge was not thereby obligated to accept that explanation as genuine.”  Therefore, the judge did not abuse his discretion by finding a lack of genuineness and denying the defendant’s peremptory challenge on this basis.  The defendant’s claim was rejected, and the conviction was upheld.


Post-Verdict Juror Contact by Attorneys

Those two cases dealt with the end (deliberations) and the beginning (voir dire) of jury service, respectively.  But what about after jury service has concluded?  Specifically, when and how can a trial attorney make contact with jurors after they have rendered a verdict and been dismissed?  That is the subject of a new set of amendments to the M.R.P.C. as proposed by the Standing Advisory Committee on the Rules of Professional Conduct.  Specifically, the changes to Rule 3.5, which addresses post-verdict juror contact, would add a new subparagraph (4) to Rule 3.5(c), as well as replace Comment 3 to Rule 3.5(c).  The proposed amendments are ultimately meant to conform the rule to the SJC’s decision last year in Commonwealth v. Moore.

A little background is in order: In 2014, the BBA’s Ethics Committee submitted comments to the Standing Advisory Committee on its then-proposed amendments to Rule 3.5, expressing support for the changes, which would permit post-verdict contact in the absence of a contrary order and subject to certain restrictions—but also noting that the rule might not immediately apply because of existing common law to the contrary.  The revisions to Rule 3.5 were adopted and became effective in July 2015.  But the Moore case, as anticipated by the Ethics Committee’s comments, raised questions about whether the amended rule effectively superseded common law, and if so, whether the rule allows for contact with jurors discharged prior to the effective date of the amendment.

Ultimately, the SJC held that the new Rule 3.5 did overrule the previous common-law rule requiring attorneys to seek the leave of court before post-verdict contact, but did not overrule other common-law principles, such as those limiting post-verdict inquiry of jurors to matters relating to extraneous influences.  The Moore court also offered guidelines for post-verdict contact, including a requirement of notice to opposing counsel before seeking juror contact.  The amendments to Rule 3.5 reflect this holding with new language preventing a lawyer from communicating with a juror after discharge if “the communication is initiated without the notice required by law.”  The proposed comments explain in more detail the specific notice requirements, outlining how much notice must be given and what content must be included.

Providing comments on these sorts of changes is an important service we provide to the court system.  Just last week, we wrote here about a series of comments we submitted recently.  And we are currently working to gather the input of our steering committees on not only the proposed rules on juror contact but also changes to the M.R.P.C. rule governing retention of client files.  Both are due on May 1, and we will follow up to find out what the final rules, as adopted by the SJC, ultimately look like.

—Michael Avitzur
Government Relations Director
Boston Bar Association


Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

February was a busy policy month here at the Boston Bar Association (BBA), as we submitted five sets of comments on proposed new rules and proposed amendments to rules. We’ve often highlighted the hard work of our Sections in submitting these comments. This process allows members to leverage their specific expertise and offer constructive feedback on items that will influence their own practice of law. The courts have long shown an interest in taking a close look at these comments, and the insights offered by the Sections are often reflected in the final iterations of the rules. In fact, keep reading to the end for an example of BBA Section concerns that were just addressed in a recently promulgated rule!

Last month’s BBA Section comment submissions included:

Board of Bar Overseers Proposed Rule Changes

                The Board of Bar Overseers (BBO) solicited comments related to amendments to Rule 3.18 and related rules on the conduct of adjudicatory proceedings. The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will now be reserved exclusively for Board members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.

                The Ethics Committee and the Business and Commercial Litigation Section Steering Committee drafted the comments to the BBO, unanimously agreeing that the proposed rule changes were “welcome and necessary.” Paul Lannon, Partner at Holland & Knight and Chair of the Ethics Committee, noted that “[t]he BBO provides a vitally important service to the Massachusetts bar and the general public” and “[t]he proposed rule changes should significantly improve that service, especially with respect to motions for protective orders and discovery.” The Ethics Committee and Business and Commercial Litigation Section Steering Committee agreed that because hearing officers have less experience than Board members, certain motions, like those on protective orders and discovery, should be decided only by Board members. Hearing officers may hear only one or two matters in their tenure, so leaving motions that serve important public functions and have significant impacts to more experienced Board members is best.

Proposed Amendments to Superior Court Standing Orders and Rules

                The Superior Court invited comments on a range of proposed amendments to Superior Court Standing Orders and Rules, including the addition of a new section calling for a “Final Trial Conference Before Jury Trial” to Standing Order 1-88. In that conference, parties would discuss matters in the new Rule 6.2(a) that relate to a range of empanelment issues like the statement of the case to be read to the venire and the process and content of the judge’s intended voir dire.

                The Business and Commercial Litigation Section Steering Committee provided comments on the proposed Amendments to Standing Order 1-88, expressing that members of the Section were generally supportive of the proposed changes. Paula Bagger, of Cooke Clancy & Gruenthal LLP and a member of the Steering Committee, who was kind enough to present the comments to the BBA Council for their approval, noted the Steering Committee members “unanimously agreed that the formal addition of a ‘final trial conference’ in the Superior Court conforms the rules to an existing ‘best practice,’ which helps civil trials get started promptly and efficiently.”

                Given the new Superior Court Rule 6, members expected the final trial conference would allow for much of the foundation of voir dire to be set in the conference, and some members noted that many Superior Court judges already regularize many of the issues that would be addressed in this new process, but it will likely benefit litigants to have this process formalized in a final trial conference. The comments also addressed a potential ambiguity in the proposed requirement that parties submit a “final joint witness list,” and suggested that there could be a clarification that this does not authorize unilateral additions to a party’s witness list.

Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure

                The Standing Advisory Committee on the Rules of Civil and Appellate Procedure solicited comments on amendments to Mass. R. Civ. P. 26(b)(5), which would make the Massachusetts rule on privilege logs the same as the federal rule. The current Massachusetts rule requires a log that presents certain information when a party does not provide, on the basis of privilege, otherwise discoverable information. Unlike the current Mass. Rule, the federal rule does not require a document-by-document log, though parties are still required to describe the nature of the material withheld in a manner that would provide the other party an ability to assess the merits of the reason for withholding the requested material.

                The Business and Commercial Litigation Section Steering Committee also offered comments on these amendments to Rule 26. Paula Bagger noted that “whether the rules should mandate the preparation of privilege logs turned out to be an issue close to the hearts of our Steering Committee of business litigators and generated active discussion. Our comments reflected both the views of the majority, which favored the proposed rule, and those who believed the present rule better reflects practice in our state courts.”

                Some members, for example, welcomed the change in the rule, noting that the current rule on privilege logs is often time-consuming, expensive, and even potentially creates a means for a party with fewer privileged documents to aggressively insist the party with more documents follow the rule completely or risk waiver. Others, however, felt the current rule, even if burdensome, offers more safeguards as it makes it more difficult to “slip something past” opposing counsel than would be the case with more generalized descriptions. They also acknowledged the benefits of harmonizing state and federal law but warned that certain key differences in practice, like the availability of early judicial intervention in federal courts, make the new rule less suitable to Massachusetts. Finally, other members noted the new rule could be improved by requiring accompanying information to be provided with the categorical description and clarifying that a judge can order production of a privilege log when a particular case or circumstance would benefit from it.

Proposed Amendments to the Mass. Rules of Civil Procedure Regarding Credit Card Debts

                The Standing Advisory Committee on the Rules of Civil and Appellate Procedure also invited comments on two new proposed rules related to actions for money damages against individuals arising from credit card debt. The proposed amendments were specifically meant to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Proposed Rule 8.1 would require plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Proposed Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1.

                The Bankruptcy Law Section offered comments on the proposed rules, expressing general support for the provisions and noting that the rules would help to address common abuses within credit card debt collection cases. The comments also raised one concern about the requirement that an affiant attest under oath that action is not barred by the statute of limitations, proposing that instead, perhaps the affiant could be required to attest the he or she believes after reasonable investigation that his or her client has a good faith basis for asserting the action is not barred by the statute of limitations.

Proposed Rules Governing Bail Magistrates and Bail Commissioners

                The Trial Court Bail Committee invited comments on proposed Trial Court Rules Governing Bail Magistrates and Bail Commissioners, intended to replace the 2014 Superior Court Rules Governing Persons Authorized to Admit to Bail Out of Court. The new rules would apply to all Clerks of Court, Clerk-Magistrates and Assistant Clerk-Magistrates who participate in the overnight bail process and Bail Commissioners, and remain similar in many aspects to the 2014 rules. The changes in Proposed Rule 14, however, were taken up by the Criminal Law Section Steering Committee.

                The Steering Committee comments noted that, overall, members of the Section believed the Proposed Rules represent a commendable effort to improve the process and quality of out-of-court bail determinations. However, some members expressed a concern over the lack of clarity as to whether the standards found in Proposed Rule 14 were fully consistent with applicable substantive law. The comments pointed out the specific provisions of the rule which may conflict with provided statutory and case law, suggesting that the Trial Court Bail Committee ensure these particular points were consistent with the relevant statutes and cases. Eric Haskell, of the Massachusetts Attorney General’s Office and the member of the Steering Committee tasked with drafting the comments, was pleased the Committee was “able to identify several specific areas where we believed the Proposed Rules could benefit from provisions” and “add value to these proposed rules.”


While we were busy preparing and submitting the comments above, the BBA also got word of a final order that reflected the concerns of past comments submitted by a BBA Section:

Parenting Coordination Standing Order

                On February 1, 2017, the Probate and Family Court promulgated the final Parenting Coordination Standing Order 1-17, related to the procedures and requirements for parenting coordinators either assigned by agreement between parties or appointed by the Court.

                Last year, the Family Law Section Steering Committee provided comments raising a number of concerns, including the uncertainty surrounding what happens when the parties disagree with a parenting coordinator, whether or not the Court has the power to grant the parenting coordinator binding decision-making authority without agreement of the parties, and what payment procedures apply if the Court appoints a parenting coordinator but both parties refuse to pay.

                Many of the concerns expressed in the comments were ultimately addressed in the final version of the Order. The Court clarified that parties always had a right to access the Court, even when they had submitted to the binding decision-making authority of the parenting coordinator. Additionally, the Order now provides that the binding decision-making authority of the parenting coordinator could apply only upon agreement of the parties and that a parenting coordinator could not be appointed by the Court if both parties refused to pay.


We look forward to being part of many more opportunities to comment this year (right now we’re gathering input on post-verdict juror contact and file retention) and will keep you up to date on the important insights and hard work coming out of our Sections.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Chief Justice Gants Addresses the BBA Council

The Chief Justice of the Massachusetts Supreme Judicial Court (SJC) was once again kind enough to address the BBA Council at its most recent meeting. He spoke on a number of important issues facing Massachusetts, including criminal justice reform, the state budget, and civil legal aid.

From his appointment to the Superior Court two decades ago, to his appointment as Chief Justice of the SJC in 2014, and beyond, Chief Justice Gants has consistently shown his analytical rigor and intellectual scrupulousness. In addition to his unmatched legal analysis, he is well-known for his community outreach, regularly taking the time to address the public about the Massachusetts court system and the real impact it has on individual and community experiences.  Chief Justice Gants also has a long history of offering numerous platforms for discussion and critical insights on many of the causes near and dear to the BBA, including access to justice and pro bono legal services. He was a member of the SJC’s Standing Committee on Pro Bono Legal Services and also served as co-chair of the Massachusetts Access to Justice Commission from 2010 to 2015. The BBA recognized Chief Justice Gants with the Citation of Judicial Excellence in 2012.

At the Council meeting, Chief Justice Gants spoke on:

Immigration Issues

Chief Justice Gants began by thanking BBA President Carol Starkey, and the BBA as a whole for the recent leadership shown in response to current events impacting immigrant communities. He noted that complex issues like these will likely not be going away anytime soon, and he is hoping to see members of bar associations stepping up and remembering why they chose to enter the legal profession in the first place. The Chief Justice also pointed to an instance in Texas where a woman was detained by ICE while filing for a protective order from her allegedly abusive boyfriend, noting that the courts in Massachusetts will be keeping a watchful eye on these issues. He remarked that even though these events may be happening far away, the impacts can still be experienced by Massachusetts residents and Massachusetts courts, potentially creating a chilling effect that discourages victims from pursuing redress. Once again, he noted how important it will be for lawyers, and specifically bar associations, to step up and reach out. Underserved populations need this outreach to ensure they understand the availability of legal assistance and know when and how to access their rights and seek assistance and justice through the courts. For its part, the court system has been sending the message that all are welcome and no one’s status will be questioned.

Criminal Justice Reform

Chief Justice Gants next discussed the Council of State Governments (CSG) report on criminal justice reform, which had been released earlier that morning.  Check out last week’s Issue Spot for our full run-down of the released report and a BBA event with an all-star panel discussing the final recommendations.  Similar to his last speech to the Council where he compared the budget process to a baseball game, Chief Justice Gants employed a sports analogy to describe the report, comparing the CSG process and report to a football game. He stated that the final report and proposed legislation were the equivalent of a first down: it advanced the ball down the field and did not require the team to resort to a punt. However, the CSG process did not produce a touchdown, so there is still more work to be done on criminal justice reform.  Overall, the Chief Justice saw the CSG procedure as a great learning opportunity, especially important as the previous nationwide reluctance to pursue substantial criminal justice system reform is beginning to shift and more and more other states are comprehensively addressing these issues. Finally, he provided that the CSG report and proposed legislation is particularly strong in certain areas, including its findings on wrap-around services and the specific reentry needs of 16 to 24 year olds that work to reduce barriers to housing, employment, and education. On that last point, the court system is developing a pilot project dedicated to those young people.

The Budget

Next, the Chief Justice addressed budget issues, beginning with a discussion of Governor Charlie Baker’s allocation of $1 million for a state-wide Housing Court. He noted that currently only two-thirds of the state has access to the Housing Court and that it “just makes sense” to extend access to the entire state. As the BBA has written in the past, proponents of a Housing Court expansion point to the expertise of the judges who are equipped to handle the range of housing issues, the specialists at Housing Court who offer mediation and save potential litigants time and money, and the special services in place that make the Court adept at serving pro se litigants and handling municipal code enforcement.  Additionally, the Housing Court operates at the lowest cost per case of any Trial Court department, making it an efficient option. Make sure to keep an eye out for future BBA updates on this issue.

Chief Justice Gants also addressed the Trial Court’s budget prospects. As we outlined a few weeks ago, the budget process is only just beginning, but the Governor called for a 1% increase in appropriations for the Judiciary for Fiscal Year 2018.  Chief Justice Gants specifically spoke about the likelihood of an increase in Probation staff in light of the CSG report that will call upon more comprehensive supervision to ease reentry and reduce recidivism. He also pointed out that the increase provided in the Governor’s budget would not be enough to allow for an expansion in specialty courts, including Veteran’s Treatment Courts, Drug Courts, Homelessness Courts, and Mental Health Courts. Overall, the Chief Justice noted that BBA support would be crucial on these budget issues, and the BBA has a long history of offering that support.

Civil Justice Reform

The Chief Justice concluded his remarks by reminding members of the Council of the recently-created “menu of options” now available that give lawyers more practice options and allow them to craft their own case in a way that makes the most sense for the particulars of the specific situation.  Chief Justice Gants stressed, as he did previously, that these increased options will only work if lawyers choose to employ them. In many other jurisdictions, the use of these options is imposed by the court, but the Chief Justice is hoping that here, more lawyers will step up and pursue the options independently now that they have the choice.

As expected, the Chief Justice offered important insights into a range of issues, displaying both his impressive expertise and his constant passion for reform that will improve the efficiency, effectiveness, and accessibility of the Massachusetts court system.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association



Let the Criminal-Justice Reform Debate Begin

After months of anticipation, the Council of State Governments’ Justice Center (CSG) finally released its report and recommendations on the Massachusetts criminal-justice system.  Eighteen months ago, the leaders of all three branches of government — Governor Charlie Baker, Chief Justice Ralph Gants of the Supreme Judicial Court, Senate President Stanley Rosenberg, and Speaker of the House Robert DeLeo — formally invited CSG to undertake such a review, and a Tuesday-morning press conference attended by all four leaders heralded the end product.

Governor Baker immediately filed legislation to implement some of CSG’s recommendations, while emphasizing that the full report represents a consensus among all the leaders, who collectively made up the steering committee that worked closely with CSG staff throughout the process — as did a broader working group of 25 additional stakeholders.  The legislation will be taken up by the Legislature, as will additional bills to address issues that were not included in the report.  Collectively, this criminal-justice reform debate will be one of the top priorities on Beacon Hill between now and the July 2018 end of this legislative session.

Look back at the July 2015 letter that started the review process — with Massachusetts now one of 26 states to have brought CSG in for their technical assistance and data-driven approach to help improve efficiencies and outcomes in criminal justice.  You’ll see that it was carefully crafted to achieve initial consensus among the signers, with language targeted at very specific aspects of the system and discrete goals for the project.  Here’s the key sentence:

“Without limiting the scope of your data analysis, we hope, looking at the data as a whole, to better understand how we can further reduce recidivism and enable successful re-entry, and whether we can further reduce our prison and jail populations through early release programs while ensuring appropriate punishment and preserving public safety.”

Reform advocates were concerned from the outset that the scope of the review would thus be too limited — in particular, that it would be focused on the so-called back-end of the system, recidivism and re-entry, to the exclusion of “front-end” issues such as diversion, bail, and sentencing.  As it turned out, there is indeed more or less a straight line from the request letter to the final report, which doesn’t extend the scope beyond what was initially proposed.  State leaders argue that this was the only way to achieve consensus, and that there will be time this session for both houses to consider the many legislative proposals for further action.

These proposals cover not only the three areas cited above but also issues like:

  • further reform of the state’s laws on criminal offender record information (CORI)
  • relieving the burden of fees and fines on defendants and ex-offenders
  • lifting or alleviating more of the hundreds of collateral consequences that are tied to criminal records and, like the above two, create roadblocks to successful reintegration after release from incarceration — or any involvement with the justice system, even short of incarceration — by making it difficult to secure employment, housing, government benefits, and so on
  • allowing greater opportunity to seek expungement of criminal records
  • providing a way for elderly or disabled inmates to obtain extraordinary release, as in the federal system
  • increasing the threshold for felony-level larceny, which has remained unchanged for decades, in spite of erosion by inflation
  • making parole a presumption to be denied only when justified

Despite growing political pressure, as it became clear that the report would likely hew to its original narrow scope, the report unveiled this week was silent on all of the above.  On perhaps the biggest such flash-point, efforts to roll back some of the state’s mandatory-minimum sentences, however, state leaders were quick to point to a recommendation that had not been publicly-broached before — one that would offer all inmates, including those serving mandatory sentences for certain drug offenses (not involving opioids, minors, firearms, or violence), a greater opportunity to accrue “earned time” for participation in programs designed to improve their chances of successful re-integration.  This would, in turn, reduce recidivism.

It gets somewhat complicated here, but basically, earned time will be available, within limits, to move up a DOC inmate’s parole-eligibility date.  Those who are not paroled and instead “wrap up” their sentences will also be released earlier based on earned time, but they will be under supervision for the remaining period of their sentences.  This addresses one key CSG finding — which was not exactly a secret beforehand: Too many inmates are serving out their sentences and being released directly to the street with no supervision — a recipe for unnecessarily high recidivism rates.  But it also addresses the concern that any mandatory post-release supervision program not have the effect of extending an inmate’s time within the system.

Many questions remain about this approach: Will it have the effect of reducing time served under mandatory sentences without actually changing the statutes that impose them?  Will prison programming be made available to meet the anticipated increased need that this change seeks to create?  Will judges modify their sentencing practices by reducing the use of “and a day” sentences — those in which the minimum is set at the mandated level but the maximum is only one day later?  (These are viewed by some as a judicial expression that the mandatory minimum in a given case is too high, but they also result in releases without supervision, because parole is not a real possibility.)

These contours of the debate to come at the Legislature were explored by an all-star panel at a BBA event held the day after the CSG report — with both praise for the final recommendations and some calls for further action on display from panelists, all of whom worked with CSG.  For his part, Michael O’Keefe, District Attorney for the Cape & Islands, argued that with incarceration rates near the bottom in the US, and continuing to decline, the CSG focus on recidivism — what he called the “weak point” in our justice system — was properly placed.  Massachusetts recidivism rates are in the middle of the pack, but we can do better, he argued, if we invest in programming and supervision.

State Senator Will Brownsberger, Senate Chair of the Legislature’s Judiciary Committee, told attendees that the system isn’t broken, yet it does create a footprint that’s too big.  He sees prisons and jails that are too full by historical standards, and in comparison to other developed democracies, and he wants to try to reduce collateral consequences as well.

To Randy Gioia, Deputy Chief Counsel of the Public Defender Division at the Committee for Public Counsel Services (CPCS), the CSG report creates a “once in a lifetime opportunity” to do something big on criminal-justice reform but won’t generate enough savings by reducing incarceration.  Those savings are needed, he says, to invest in the same high-risk communities that have been devastated by the upswing in imprisonment over the past several decades.  Only then will the cycle of recidivism be broken.

Former State Representative John Fernandes, recently retired as House Chair of the Legislature’s Judiciary Committee, pointed out that the report had to be as limited as it is, so that all participants could emerge pledging to see its recommendations through to execution.  The review, he said, “was never intended to change everything in one package.”  Nevertheless, it represents a first step that can be built upon later.

Lon Povich, Chief Legal Counsel to Governor Baker, noted that the Governor’s recent budget already provides $3.5 million to fund the first-year costs of implementing the report’s recommendations.  He’d like to see the CSG legislation passed soon, with further reform efforts taken up thereafter, and he particularly pointed to collateral consequences as an important area to work on in order to drive down recidivism rates.

Superior Court Judge Jack Lu took part in his role as chair of the Sentencing Commission, which is working on a rewrite of the state’s sentencing guidelines.  Those guidelines remain advisory, because they have never been enacted.  Judge Lu promised the Commission would offer “state of the art” data-driven guidelines but predicted that they would “move the needle” rather than call for sweeping sentencing changes.

Judge Paula Carey, Chief Justice of the Trial Court, praised the CSG’s work as an unprecedented cooperative effort by all three branches, resulting in a three-pronged approach going forward: legislative (in the form of the bill filed by the Governor), but also administrative and budgetary.

So implementation is now in the hands of the leaders who kick-started this effort a year-and-a-half ago.  How it plays out over the year-and-a-half (actually a little less) remaining in the 2017-18 session — and beyond — remains to be seen.  But with an internal working group already reviewing the CSG report and contemplating recommendations for reforms that would go further toward improving our system of justice, you can be sure the BBA will be a part of that debate.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Initial Read on the FY18 Budget

We’re still in the early stages of discussions over the state budget for Fiscal Year 2018 (FY18), which starts on July 1, but this is nevertheless a good moment to review what’s gone on thus far.

The first official step in the process is for the Governor and the two houses of the Legislature to agree on a figure — known as the consensus revenue estimate — that represents the amount of money they expect the state to collect in taxes during the coming fiscal year.  This time, the figure is about $27.07 million, or 3.9% (just over $1 billion) more than they’re estimating in the current year (FY17), which is now more than half over.  If the estimate comes to fruition, it will represent a significant increase in revenue growth over the current and past fiscal years, during which state coffers have expanded at a rate of about 2.3%.

As reported by the State House News Service, Senate Ways and Means Chairwoman Sen. Karen Spilka said in a statement, “This conservative estimate reflects our cautious optimism about the Commonwealth’s economic position. Throughout the fiscal year 2018 budget process, we will continue to carefully monitor revenue performance to build a fiscally responsible, balanced budget that invests in the health and prosperity of people and communities across the state.”

Kristen Lepore, Secretary of Administration and Finance under Governor Baker, used the word “modest” to describe the projected growth, which she told State House News is “in line with testimony we heard in December” at the annual consensus revenue hearing.  And according to Sen. Spilka’s House counterpart, Rep. Brian Dempsey, “This Consensus Revenue agreement reflects continued stable growth and is in line with current economic trends.”

Unless there are major changes in the state’s fiscal outlook over the next few months — such as last spring, when legislators had to react, in the middle of the budget-drafting cycle, to news that revenues were plummeting well below projections — that figure of $27.07 million will be the final revenue amount that each of the three stakeholders (the Governor, the House, and the Senate) will use to draft their individual budget plans.

In fact, Governor Charlie Baker has already put forward his proposal, filing a bill with the House that’s known, in odd-numbered years, as H. 1, or “House 1.”  (In even-numbered years, it’s called H. 2.)  Although the two houses’ budget-writers are free to tear up the Governor’s budget and pursue their own priorities as they wish, that bill and the consensus revenue estimate set a tone for the debate that unfolds thereafter.

Here’s what we know so far on three of the BBA’s long-standing budget priorities:

Trial Court funding

The Governor provided for a 1% increase in appropriations for the Judiciary, for a total of $646.8 million.  This is slightly less than the courts’ maintenance-budget request of $649.5 million — that is, the amount they would need in order to merely continue providing the same level of services that they’re able to this year.  But the Legislature has been generous with court funding in recent years, and there is reason to hope that the budget that emerges from that body will fund the judiciary at a higher level — as has been the case lately.

Housing Court expansion

For the second year in a row, the Governor made funding available in his budget to cover an expansion of the state’s effective and efficient Housing Court, to provide statewide jurisdiction.  As we’ve written here previously, barely two-thirds of the state’s population currently has access to the Housing Court, which offers expert judges, trained mediation specialists, and a streamlined process dedicated to housing, homelessness, and municipal code-enforcement issues — not to mention that it boasts the lowest cost-per-case across all court departments.  We couldn’t get this expansion all the way through the budget process last year (it was dropped by the conference committee), but we are certainly trying again this year, and H. 1 is a good start.

Funding for civil legal aid

Walk to the Hill, held three weeks ago, is the big annual kick-off in the drive to support the line-item appropriation for the Massachusetts Legal Assistance Corporation (MLAC) — the state’s leading provider of funds for legal-services agencies.  If this year’s event is any indication, there’s reason for great optimism.  We have a great story to tell about civil legal aid, based on the findings of a 2014 BBA task-force report that demonstrated the positive return on investment the state achieves from such expenditures, which help low-income residents struggling with problems like domestic violence, threatened evictions, and an inability to secure the federal benefits to which they’re entitled.

But we will need to rely on that evidence, as well as the broad support enjoyed by civil legal aid both in the legal community — as shown by the 700+ attorneys who showed up at the State House for Walk to the Hill, to rally for MLAC and speak with their legislators — and in the Legislature — which has consistently provided increases over the past few years to try to close the justice gap that results when the number of people seeking legal help far outstrips the ability of the agencies to meet that need.  (Our report estimated that 64% of qualified applicants for legal aid must be turned away.)

I say we’ll need to rely again on those resources, because the Governor’s budget calls for only a 1% in the MLAC line-item (as with the judiciary — see above).  That comes out to $18.18 million, at a time when we are asking for an increase to $23 million.  We’ve done it before, though: The Legislature has come through with an aggregate 20% increase in funding over the past two fiscal years — a time when, as noted above, revenues have barely grown by 2% annually.

The next major step in the process doesn’t come until mid-April, when the House Ways & Means Committee will release its budget, triggering a flurry of amendments from the 160 House members seeking changes during the marathon floor debate.  And then the ball will be in the Senate’s court until they pass their own version of a budget in May.  Next comes a conference committee to reconcile the inevitable differences between the two houses’ budgets.  And when the conferees reach agreement, and their respective houses concur (typically a mere formality), that final legislative budget goes to the Governor for his signature, with the prerogative for line-item vetoes that the Legislature can then try to override.

Along the way, there will be plenty of opportunities for the BBA, and other groups, to advocate for their priorities.  So watch for action alerts on the budget coming from us, because we will likely be seeking your help in reaching out to your elected representatives in conjunction with our efforts.  And watch this space for regular updates, as the debate unfolds.  In the meantime, if you’re interested in a little more detail on the process, you can check out this Issue Spot podcast, which focuses on MLAC funding.

—Michael Avitzur
Government Relations Director
Boston Bar Association


State House Forecast for Civil Rights and Civil Liberties

A recent discussion at the BBA addressed the question of what the new 2017-2018 legislative session may hold in store for legislation on civil rights and civil liberties.  We were joined by a truly all-star panel, starting with our moderator, Kate Cook of Sugarman Rogers, who currently co-chairs our Civil Rights & Civil Liberties Section, and who was previously Governor Deval Patrick’s chief legal counsel.  The event also featured:

These four insiders came by to offer their assessments of the hot topics set to be debated at the State House over the next two years (well, year-and-a-half, really, since formal sessions end on July 31, 2018).

For Sen. Eldridge, the focus will be on criminal-justice reform and immigration.  In his continuing role as co-chair of the Harm Reduction Caucus, the Senator will be in a good position to help lead the dialogue on criminal justice, and among his priorities are reform of the bail system, elimination of racial disparities, and repeal of mandatory minimum sentences for drug offenders.  He has also filed the Safe Communities Act, which would prevent the state from offering any support for a potential Muslim registry, prohibit agreements with the federal government to deputize local law-enforcement as immigration agents, bar local officers from taking part in immigration enforcement generally, and guarantee basic due-process rights for people detained on civil immigration violations.  Sen. Eldridge mentioned that he’d earlier that day participated in a rally in support of immigrants at the Irish Famine Memorial in Boston.

Rep. Rushing had his eye cast toward Washington, D.C.  For him, the new Administration — which was just taking shape at the time of this event, held hours before the controversial executive order on immigration was promulgated — offered both challenges and opportunities, and he suggested that there may come a time when the proper response will be for the state to openly defy federal mandates, just as Massachusetts did when runaway slaves arrived here.

Rep. Harrington offered a note of caution on what her colleagues had said, pointing out that the Supremacy Clause makes it difficult for a state to pass a law declaring its intention to disobey a law of Congress — especially when federal dollars are at stake.  Still, she found common ground with Sen. Eldridge on criminal justice, noting that the bail system is part of the comprehensive review of the Massachusetts system being conducted by the Council of State Governments (CSG) Justice Center.  She also said that evidence in support of restorative justice programs, which Sen. Eldridge has championed, is “very compelling”, and she offered her support on not only bail and mandatory minimums but also diversion of cases outside the system, and limits on solitary confinement.

To Rep. Harrington, shared parenting is also a civil-rights issue, encompassing the rights of children to have good relations with both parents.  The focus, she said, should always be on the best interests of the child.  She also brought up the state’s new marijuana-legalization law, noting that bills to make changes to the language passed by voters in November have been filed by seemingly every other legislator.  Her e-mail inbox, she said, was “rolling in marijuana bills” (get it?)

Rep. Rushing pointed out that Blacks use marijuana at the same rate as other groups yet have been convicted on such charges at rates many times higher than others.  In the implementation of the recent medical-marijuana law, he also sees a possible bias — one that has disadvantaged people of color who apply for licenses as providers.  He would like to see the new Cannabis Control Commission reach out to communities that have been historically harmed by marijuana prohibition and, a historian himself, he suggested looking back to the 21st Amendment ending the alcohol prohibition — the last time a controlled substance was legalized — for guidance.

Like Sen. Eldridge, the ACLU will have its eyes on criminal justice and immigration this session.  Their Fundamental Freedoms Act would protect Massachusetts residents from government monitoring by barring state participation in any discriminatory registration system based on religion, national origin or immigration status, and enhancing safeguards for protestors from information-gathering about them based only on protected First Amendment activity.  As Rahsaan Hall put it, “expressions of dissent are patriotic,” and such dissent is a founding principle of America.

He took some issue with the process being followed by the CSG group on criminal justice, calling it “a little short-sighted” in its focus on reducing recidivism without giving due consideration to how people enter the system.  The pressure is thus on advocates to build on that, such as by addressing racial disparities — which, he argued, will remain a feature of the system until direct action is taken.

To this, Rep. Rushing said he’d filed two bills calling for greater collection and uniformity of data.  Rep. Harrington asked how best to tweak laws that aren’t facially discriminatory yet have that outcome.  If the system is structurally biased, that’s what happens, said Rep. Rushing, who said fixes can include requiring police officers to hand out business cards upon any public interaction, providing better training of officers in handling such stops, and video-recording all stops.

Although Black and Latino residents make up only 21% of the state’s population, they comprise 75% of state inmates serving drug-related mandatory minimum sentences.  We must, Hall said, identify and analyze the drivers behind those figures.  And to those who would point to Massachusetts’ low incarceration rate compared to other states’ to make the case against reforms, Hall alluded to the U.S.’s position as an extreme outlier among developed nations, warning, “Let’s not celebrate being the best of the worst.”

Look at the effect of school-zone laws — tacking on additional mandatory jail time for drug offenses near school, parks, and playgrounds — said Rep. Rushing, calling it “straight-out racial punishment in cities.”  As an example, 90% of Boston land falls within such a zone, far more than in suburban and rural communities.  And let’s dispense with viewing marijuana as a gateway drug for users, he said.  Instead, it’s a gateway drug for sellers, “who’ll sell [marijuana users] something else as soon as they can” — something “incredibly dangerous”.  According to Rep. Rushing, taxing it like alcohol will end that black market; taxing it more heavily, like cigarettes — that is, as a way to get users to stop — will not.

For her part, Rep. Harrington remained unmoved.  Legislative hearings, which she attended in her role on the Judiciary Committee, offered no convincing evidence for legalization, and the Legislature’s delegation to Colorado, which preceded the Commonwealth down that path, learned of a panoply of problems in that state.  For example, we have no measurement tool for drivers impaired by marijuana, adults will get high at inappropriate times (such as while watching their kids) simply because it’s now “OK”, and the lack of any restriction on marketing edible doses will also have negative consequences.  In the end, for her, this question is not even a civil-rights issue.

Cook closed by asking the panelists how else they were seeking to protect civil rights and Massachusetts values.  Hall spoke about electronic-privacy protections and access to reproductive health care.  Rep. Rushing mentioned his efforts to repeal a variety of unconstitutional statutes that remain in the Massachusetts General Laws and thus can potentially find new life — such as existing anti-abortion laws that could go back into effect if Roe v. Wade were overturned.  Rep. Harrington returned to the immigration issue, saying we have to “walk a tightrope” between enforcement and protection of rights … at least until the federal government takes responsibility for it.  And Sen. Eldridge brought up protection from the impact of climate change and development of renewable energy.

We came away with a better understanding of the debates to come in Massachusetts.  Meanwhile, just in the days since this discussion, events at the federal level have conspired to put civil rights and civil liberties front and center of a national debate as well.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Walking for Justice

Another Walk to the Hill is in the books, and while it may be something of a cliché to say that the speakers, organizers, and participants outdo themselves every year, that proposition certainly seemed to be right on the money last Thursday for the 2017 edition.

Don’t believe it?  Check out our new Issue Spot podcast on Walk to the Hill to hear from some of the participants, some of the volunteers who showed up to meet with their elected representatives at the State House, and one State Senator who spoke to us about the critical importance of constituents showing up at legislative offices to share their personal stories and their insights about the importance of state funding for civil legal aid.

Speaking of showing up, about 700 lawyers came out on a balmy January day, to gather in the Great Hall.  (Many were delayed, in entering the State House, by a malfunctioning metal detector at the main entrance—leading some to joke that the Walk to the Hill crowd had broken it by dint of their sheer numbers.)  It is said that this is the largest annual advocacy event of its kind in Massachusetts, and that tremendous turnout, year after year, has helped build a solid base of support among Senators and Representatives.

You can see the effect of that support reflected in the numbers: Over the past two fiscal years, the Massachusetts Legal Assistance Corporation (MLAC), the state’s largest provider of funding to legal-services organizations throughout the Commonwealth, has seen its line-item in the state budget grow by 20%, from $15 million to $18 million—even at a time of great fiscal constraints, when most other line-items are growing much more slowly, if at all.

BBA President Carol Starkey:
“At the Boston Bar Association, we’re ready to fight” for civil legal aid.

Another reason for that increase?  The BBA’s own Investing in Justice report, which demonstrated in 2014 the positive return on investment the state achieves from civil legal aid.  For example, for every $1 spent helping fight against wrongful evictions and foreclosures, Massachusetts saves $2.69 in shelter, health care, foster care, and law enforcement costs.  In addition, every $1 spent on legal aid for survivors of domestic violence results in $2 in medical and mental health care savings, and every $1 spent on legal aid attorneys working to secure federal benefits yields $5 in federal economic benefits to Massachusetts residents.  That report was the culmination of the hard work of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, as well as the three independent economic consultants who conducted the underlying analysis.

That report has been the foundation for advocacy ever since, and BBA President Carol Starkey reminded those in attendance of its key findings—and of the “necessity for all of us to come together to help low-income families and individuals.”  Civil legal aid, she said, “helps keep the basic, fundamental promise of justice for all of us—not just a few of us.”  And she warned that advocates may soon have to fight off proposals at the federal level to slash funding for legal aid, including for the Legal Services Corporation, the nation’s leading provider of money for legal aid. “At the Boston Bar Association, we’re ready to fight,” President Starkey pledged.

SJC Chief Justice Ralph Gants always addresses the audience at Walk to the Hill, usually bringing the majority of the high court with him, and this year was no exception.  To the question of why legal aid deserves to continue receiving significant increases in funding, he suggested responding, “We expect the coming year to present unprecedented challenges to the rule of law and to the health and well-being of the poor and the vulnerable.”

Chief Justice Gants delights every year in finding a new data point to illustrate just how small the state’s appropriation for civil legal aid is, in the context of a $40 billion budget.  Perhaps spring training is already on his mind, because this year’s example came by way of the hometown first-baseman’s contract: “That fight will cost just $23 million—which is roughly what the Red Sox are paying Hanley Ramirez this year.”

The President of the Massachusetts Bar Association, Jeff Catalano, said, “This is not just a walk for funding; this is a walk for justice.  Because a society where poor people can’t get access to legal representation to assert their rights is truly not a just society.”

MBA President Jeff Catalano:
“This is not just a walk for funding; this is a walk for justice.”

Finally, the crowd heard from a legal-services client, Bill O., who told the compelling story of how his attorney at Greater Boston Legal Services (GBLS) restored his MassHealth coverage, which was taken away at a time when he was battling a life-threatening illness.  “It was like a miracle,” Bill recalled, “because I could not afford those incredibly-expensive drugs on my own.  And I was so, so relieved, it was physical.”  There was no way, he said, that he could’ve achieved the same result himself—no way he could’ve sifted through all the paperwork, in spite of a career spent in health-care.  Bill told the hushed crowd, “I wouldn’t be standing here today, I don’t think, telling this story, if it weren’t for the help of Nancy and GBLS.”

After that moving and energizing kick-off ceremony in the Great Hall, the 700 lawyers-turned-activists took their marching orders from Jacquelynne Bowman, executive director of GBLS, and filtered out to offices all over the State House, to spread the word to their respective legislators and make the ask: a requested $5 million increase in MLAC funding, to $23 million.  Among the many, the two bar presidents, Carol Starkey and Jeff Catalano, happen to be represented by the same State Senator, Michael Rush, who raced back from a Senate session to sit down with them as they asked for his help in securing that $23 million.

That’s still not enough, unfortunately, to entirely close the gap identified by the BBA Task Force, with an estimated 64% of qualified applicants for legal assistance turned away by providers solely due to lack of resources.  But it would be a big step.  And for those thousands of additional clients who could be represented if that money comes through, it may mean being able to stay in their homes, escape from an abuser, or gain the federal benefits to which they’re rightfully entitled.  That’s why we come back each year—to fight for help for those who need it the most.

And make no mistake: it will be a fight once again.  Walk to the Hill typically arrives toward the start of the budget cycle, and this time it was one day after Governor Charlie Baker released his budget proposal for Fiscal Year 2018 (FY18), which begins on July 1.  The Governor’s plan, delivered to the Legislature as House Bill 1 (or “H. 1,” as it’s affectionately called), would set the MLAC appropriation at $18.18 million, or 1% above last year’s level—likely not enough even to maintain the same level of legal services as this year.

But the ball is now in the Legislature’s court.  The House Ways & Means Committee is already working on the numbers for their budget, which will be released in April.  (For more on the budget process in general, and how it affects our lobbying for MLAC, check out our recent podcast, with the unfortunate—but nevertheless accurate—title “Geeking Out on the State Budget.”)  You will certainly be hearing more from us in the months to come about MLAC and our other budget priorities…

—Michael Avitzur
Government Relations Director
Boston Bar Association

S.J.C. Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

In the five years since scandal enveloped the state’s Hinton Drug Lab—after the misconduct of Annie Dookhan was discovered—we’ve covered the fall-out many, many times.  Last week, the Supreme Judicial Court (SJC) rendered its highly-anticipated “Bridgeman IIdecision addressing the crisis.  But as with any story on the Dookhan cases, a little history is in order first…

Those links above collectively tell the story of a rogue chemist who mishandled drug samples, failed to conduct tests on samples she nevertheless labeled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, and falsified evidence logs and reports, among other misdeeds.  Dookhan was sentenced to three-to-five years in prison in 2013, after pleading guilty to obstruction of justice, tampering with evidence, and other charges, and she was released early last year.  Case closed.

Except that even now, upwards of 20,000 defendants are still living with the fallout from criminal records stemming from adverse dispositions in cases in which Dookhan was a chemist of record.  These are people who were convicted or pled on the basis of what we now know to be tainted evidence, and they are living with the consequences: difficulty obtaining employment, public housing, benefits, drivers’ licenses, and so on.  Many faced harsher punishment later because a Dookhan conviction was a predicate offense.  For some, their custody of children, or even their very presence in the country is at stake.

But the courts have struggled to find a solution: How to offer justice across so many cases, short of simply vacating all remaining charges in one go—the so-called global remedy that the SJC has resisted?

David Meier of Todd & Weld was named by then-Governor Patrick to lead a task force that would seek to identify all the “Dookhan defendants.”  He ultimately produced a list of 40,323 individuals … but that was incomplete and based on only partial information.

Special magistrates—including current BBA Council member Judge Margaret Hinkle (retired)—were appointed by the Superior Court to handle hundreds of cases but were able to process only a fraction of the full universe, with a focus on those who were then still in custody.

Last year, after a comprehensive list of affected defendants was finally compiled and agreed upon by all stakeholders, notice was sent to all of them, at their last known addresses, by the District Attorneys in each case, advising of their rights to appeal based on Dookhan’s influence on their cases.  But the response has been limited.

Meanwhile, Bridgeman v. District Attorney for Suffolk County was making its way to the SJC, not once but twice.  In May 2015, in the first Bridgeman case (“Bridgeman I”), the SJC ruled that Dookhan defendants cannot be charged with more serious crimes if given a new trial and, if convicted, cannot be given a harsher sentence than was originally imposed.

By last October, the case was back before the SJC, with the Court seeking amicus briefs on:

Whether the persons who were convicted of drug-related charges and in whose cases … Dookhan signed the certificate of drug analysis as the analyst … are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.

The BBA filed a brief calling for a global remedy that places the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.

Our interest was twofold: to facilitate access to justice for all defendants in criminal cases, and to ensure the timely, fair, and efficient administration of justice.  Not only would a global remedy secure justice for the defendants, but it would also start to relieve the significant burden on a justice system that was otherwise facing the prospect of addressing more than 20,000 unresolved cases one-by-one.  The burden should rest with the Commonwealth rather than these individuals, we argued, because the widespread and systemic nature of Dookhan’s misconduct, as a state employee, implicates public confidence in the government and justice system.

Our brief stated that while the courts have worked admirably and diligently to handle these cases, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy.  We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ [the SJC’s word] misconduct attributable to the Commonwealth will remain intact.  Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.”  This outcome is unacceptable and inconsistent with due process and undermines the integrity of the criminal justice system.

In a majority opinion written by Chief Justice Ralph Gants, the Court once again declined last week to adopt a sweeping global remedy, ordering instead a three-step protocol, to be implemented by Justice Margot Botsford as single justice:

In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered.

In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one.

In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial.

If the number seeking counsel is so large that counsel cannot be assigned despite CPCS’s best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.

So … not entirely what we had advocated for but nonetheless a significant step toward that comprehensive resolution—while holding out the potential for lifting the remaining cloud over the Dookhan defendants and allowing them to move on with their lives.  The Court agreed with our argument that continuing to place the burden on these defendants to come forward one at a time—to say nothing of the burden on the courts—is no longer a viable option, in spite of the DA’s arguments that the notice they sent served its purpose and no extraordinary action need be taken, and that a different course of action, five years after the scandal first came to light, is necessary to protect the fairness and integrity of our criminal justice system.

The DA’s were given 90 days to inform the single justice in which cases they “could produce evidence at a retrial, independent of Dookhan’s signed drug certificate or testimony, sufficient to permit a rational jury to find beyond a reasonable doubt that the substance at issue was the controlled substance alleged in the complaint or indictment.”

Justice Geraldine Hines, for her part, filed a dissenting opinion, in which she stated that

the need to adopt a swift and sure remedy for the harm caused by her deceit presents itself with palpable urgency. The time has come to close the book on this scandal, once and for all, by adopting a global remedy. While I agree, as the court notes, that a global remedy is “strong medicine” … the continuing violation of the rights of the defendants affected by Dookhan’s misconduct and the damage to the integrity of our criminal justice system demand no less.

The three-step protocol, she said,

is simply unworkable as a timely and effective mechanism for addressing the due process claims of the thousands of defendants now deemed to have been convicted on Dookhan’s tainted evidence. In short, the court’s solution is too little and too late. The only fitting end to this blight on the integrity of our criminal justice system is vacatur and dismissal with prejudice of the convictions of all relevant Dookhan defendants.

It should also be noted that Justice Barbara Lenk, joined by Justice Kimberly Budd, trod a middle path in a concurrence with the majority, expressing her impatience:

I write separately to underscore that, in those five years, and despite the time and efforts of so many, we have managed to address fewer than 2,000 of the estimated 20,000 or more cases involving Annie Dookhan-tainted evidence. We cannot go on this way. …

I share the dissenting Justice’s frustration with the unacceptably glacial systemic response to date and join in her view that extraordinary measures are now in order. … [H]owever, I regard the protocol announced today … as promising to be such a measure, but only if implemented in a manner that countenances no further delays. … [T]here must be strict compliance with its stringent timelines and requirements.  Only this will forestall the need for a “Bridgeman III” and different measures.

And indeed, the single justice has already held a hearing earlier this week, to begin to implement the new protocol.

As you can see, the Dookhan scandal is one that has taken many turns in the past five years.  When will the last chapter finally be written for all the defendants whose lives she upended?  We still can’t say … but after last week’s ruling, and this week’s hearing, that day at least feels closer.

— Michael Avitzur
Government Relations Director
Boston Bar Association

AG Healey Spells out Priorities at Council

She was a member of the BBA Council from 2012 to 2015 and also sat on the Executive Committee.

She co-chaired our Civil Rights & Civil Liberties Section.

Two years ago, she was the keynote speaker at the BBA’s Law Day Dinner, where she spoke warmly of having “grown up” professionally through her BBA involvement, attributing many of her core values to what she learned as a member.

And this past week, Maura Healey returned to the Council as the state’s Attorney General, having been elected to that office, after nearly seven years on AGO staff, in 2014.

Since she took over what she calls The People’s Law Firm, her office has successfully rolled out several major policy initiatives, including the Earned Sick Time law and the Domestic Workers’ Bill of Rights.  She also helped shape the Transgender Rights, Pay Equity, and Pregnant Workers Fairness bills.  And on that last issue, she has led by example—providing six weeks of paid family leave for all employees, making the AG’s Office the first state agency to offer paid parental leave.

The AG spoke to Council members at length on Tuesday about her priorities and the work of the Office, but she started by stating that, given the great uncertainties about what it is to come politically, there has never been a more important time in this country for the role of lawyers, or for the rule of law.

In that assessment, she sees a role for the private bar especially.  AG Healey cited a hotline she established in November, for people to use in reporting acts of hatred and bias, and she thanked BBA President Carol Starkey for offering to help in lining up volunteers to handle any cases that emerge.

In addition, we are also partnering with the Attorney General, as well as legal services organizations, to identify other emerging legal needs in the community, particularly as they pertain to the increase in concerns surrounding immigration.  The AG’s office continues to monitor developments in federal immigration policy, to determine what impact they may have on Massachusetts residents.

In the AG’s view, this is part of what it means to run The People’s Law Firm: standing with those who are marginalized or have limited means.  She sees her office as a problem-solver.  Sometimes those problems can best be addressed through litigation; other times, leveraging the expertise and the resources of her office can produce a resolution without going to court.

Another area where we are working from the same playbook as the AG is criminal-justice reform.  She told the Council that policy-makers need to “lean in”, seizing this moment to produce change that goes beyond what has been recommended by the Council of State Governments group that has been studying the issue the past year.

She specifically cited racial disparities and data collection as areas where greater effort is called for, and she expressed hope that the scope of the debate to come on Beacon Hill this year will extend beyond merely mandatory minimums—which the BBA has long opposed.  This would include keeping people out of prisons and jails where possible—and where not, properly treating those who are incarcerated and offering them meaningful preparation for re-entry to society.

AG Healey also highlighted some of her other priorities for 2017:

  • Her office has also been conducting workers’-rights clinics for employees who believe they’ve been treated unfairly. She’s especially concerned about immigrants and other vulnerable populations.  To spread awareness of this educational opportunity, her office has been giving notice about the clinics whenever a private right of action is issued in an employment case.
  • The state’s on-going opioid crisis demands attention, and AG Healey has advocated for greater funding and expansion of education and outreach to both parents and children. It has also created a need for more pro-bono representation in guardianship cases—for example, when a grandparent must step in to raise a child.
  • Economic opportunity and security will continue to be a focus of the AG’s Office. She’s particularly concerned about debt-collection cases, and the tremendous number of defaults occurring in District Court, which only causes more problems for debtors down the road, with obtaining housing, employment, and loans.
    • To address the problem, and quell predatory practices, her office has recently begun a pilot program at the Boston Municipal Court—a single session, once a week, where trained attorneys meet with debtors to review cases.
    • Notice is sent to defendants ahead of time, advising them of this opportunity, and already, in just a few months, the program is showing results, with a 50% increase in attendance at hearings (hence, no default) and more than 100 participants having avoided default.

AG Healey also took questions from members, touching on subjects that included:

  • Climate change—she plans to step up, probably alongside colleagues from other states, if she believes the EPA is backing off on its regulatory enforcement. This is an issue she hears about at town-hall meetings around the state, and one in which she feels a moral obligation to confront potential economic consequences.
  • Acting in concert with other AG’s—again, in response to any regulatory retrenchment in a variety of other areas. She sees these offices as the first line of defense against such roll-backs, as well as potential unconstitutional practices.  She described waking up every day and asking whether her office has standing to intervene in such instances.  Witnessing what she described as voter suppression in other states (though not here) has her wondering whether her office can help.

Along the way, the AG took pains to credit her staff, and she thanked the bar for providing their expertise on issues like the equal-pay law and regulations on earned sick time for employees.

We very much appreciated hearing from Attorney General Healey, and we look forward to next month’s Council meeting, which will feature an appearance by SJC Chief Justice Ralph Gants.  Stay tuned…

— Michael Avitzur
Government Relations Director
Boston Bar Association