Recent Developments in Capital Punishment

This week, the BBA’s position on the death penalty is back in the news, after BBA President Julia Huston released a statement urging the Department of Justice (DOJ) to take the death penalty off the table in its prosecution of the Boston Marathon bombing case and instead pursue a sentence of life without the possibility of parole.

The BBA has opposed the death penalty for more than 40 years, and just over a year ago we clarified that our position extends to federal cases as well.  In doing so, the BBA ratified the work of our Death Penalty Working Group, which had released a report on the issue entitled “The BBA and the Death Penalty”.

The report found that the inevitability of error makes it overwhelmingly likely that innocent defendants will be executed, and that the death penalty disproportionately affects racial and ethnic minorities. Furthermore, even when the facts of a specific case do not appear to raise questions about innocence or discrimination, pursuit of the death penalty is fraught with delay, inordinately expensive, and offers only the illusion of ultimate punishment.

As you may be aware, there has been significant movement away from the death penalty even in the past year, as demonstrated both in polling numbers that show a sharp drop in support, and in statements and actions from public officials.

Although six states have repealed their capital-punishment laws since 2007, prosecutors may still seek the death penalty in 32 states and in federal cases.  Yet governors in four of those states have taken executive action to place a hold on executions—most recently Pennsylvania’s newly-elected Governor Tom Wolf, who had pledged, as a candidate, to do so.  Many of the other 28 states currently have executions on hold pending state reviews, state litigation, or the Supreme Court’s decision later this year in Glossip v. Gross.

Glossip presents a challenge to the use of Oklahoma’s death-penalty drug “cocktail,” after three botched executions across the country in 2014.  Citing similar concerns, the governor of Ohio last month imposed a moratorium on use of the death penalty there for the remainder of 2015.  And just this past week, out-going U.S. Attorney General Eric Holder called for at least a temporary nationwide halt to all lethal injections.  Complications from the drugs currently used for lethal injection, which is the preferred method of administration in every capital-punishment state, are symbolic of the broken system that the BBA Working Group described.

The AG also expressed his concern about the possibility of the execution of an innocent person, which he called “inevitable,” echoing our Working Group.  Indeed, the steady drumbeat of news stories about prisoners being released from death row, upon findings that they were wrongfully convicted, has been another factor in changing public opinion.

We wrote in this space last summer about two North Carolina brothers who were exonerated after 30 years.  Since then, three men in Ohio had their murder convictions overturned nearly 40 years after a trial in which the prosecution’s case rested chiefly on the eyewitness testimony of a 12-year-old boy, who later recanted and was shown to have been elsewhere at the time.  This brings the confirmed total number of condemned prisoners who have been exonerated from death row to 150 in the past 42 years.

It is in this context that the trial of the accused Boston Marathon bomber begins at the Moakley Courthouse.  At the time of writing, jury selection has been underway for nearly seven weeks, and defense attorneys continue to pursue a change of venue.  Prosecutors from the US Attorney’s Office have said they will ask jurors to impose the death penalty.

Proceeding to a full trial with the death penalty as an option likely means many years of delays and appeals before a death sentence would be carried out, if ever. The BBA Working Group found that appeals last an average of 16 years, and that less than 1% of cases in which the DOJ seeks death actually result in execution.  Such delays would serve to keep the alleged bomber’s name in the news for the foreseeable future.

In the alternative, prosecutors could take the death penalty off the table and explore the possibility of a plea bargain that might result in a life-without-parole sentence.  There is certainly precedent for such an approach, including in the prosecutions of the so-called Unabomber and the accomplice to the Oklahoma City bombing—both of whom have largely disappeared from public notice since their sentencing.

Such an outcome would offer multiple benefits: The entire case could be concluded expeditiously and a definitive sentence imposed, allowing for closure and putting the focus back on continuing to help the victims, their families, and the city heal from this gut-wrenching tragedy.  What’s more, the trial could proceed directly to sentencing, with an opportunity for impact statements from victims and their families, who could confront the defendant and tell him directly how the crime profoundly affected them.

There is still time for the DOJ to seek a plea deal that would obviate the need for a trial and ensure that the defendant lives out his life in the obscurity of a federal super-max prison.  Just today, the nomination of current US Attorney Loretta Lynch to become the next Attorney General advanced to the Senate floor.  We hope that, once sworn in, she will take a fresh look at the case and agree with our suggested approach.

— Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Amicus on the Practice of Law and Attorney Sanctions

It’s been a little while since we last updated you on our Amicus Committee.  As of a few months ago, they were busy discussing the merits of an amicus brief arguing for a right to counsel for indigent parents of minor children in private guardianship actions.  They ultimately decided to recommend that the BBA sign on to a brief supporting this right, which also quoted from three different BBA working group and task force reports, including our Investing in Justice report on civil legal aid.  We did sign the brief, and the SJC recently adopted our position, as BBA President Julia Huston explained in her most recent blog post.

Since then, the BBA’s Amicus Committee has been extremely busy, most notably with the case of Wong v. Luu (SJC No. 11789).  Though the facts are complex and often somewhat unclear from the record, the appeal arises from two orders issued by a Superior Court Justice for sanctionsof $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based Asian food markets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction, explaining that the attorney had acted unreasonably, delayed the administration of justice, wasted court and attorney resources, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

The sanctioned attorney appealed and in December 2014, the SJC granted direct appellate review.  Shortly thereafter, the SJC issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.

The Amicus Committee was first contacted about this case in late December 2014.  After thorough deliberation and input from a number of the attorneys involved in the litigation, as well as from members of the BBA’s Litigation and Civil Rights and Civil Liberties Sections and Ethics Committee, the Amicus Committee decided to recommend filing an amicus brief.  The Committee concluded that the case raised serious concerns regarding the practice of law, specifically, whether an attorney could be sanctioned for violating an assumption of confidentiality and whether a full evidentiary hearing should be held before a judge can issue sanctions, especially sanctions of this magnitude.

The Amicus Committee, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, Sherin and Lodgen LLP, to draft the BBA’s brief.  The record in this case is a bit tangled, and it took a lot of discussion to identify which issues the brief should focus on, but we couldn’t be happier with the result.  The brief requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order. In addition, it argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

BBA leadership unanimously approved the brief and it was filed on February 13.  Oral argument is scheduled for March 3, and we hope that the SJC will find our brief helpful as it considers these complex issues.  As always, we will keep you posted on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Power of Clemency

The power to grant pardons and commutations – a little-known aspect of a Massachusetts governor’s authority, and one that has been rarely used in recent years – has sprung into the public’s attention in recent months, leading us to review how that power may be exercised, offer some history, and assess the current state of play.

Under Article LXXIII of the state constitution, “The power of pardoning offences … shall be in the governor, by and with the advice of [the Governor’s C]ouncil.”  Pardons wipe a conviction from the grantee’s record; commutations, which are also covered by the constitutional language on pardons, shorten a sentence but leave the underlying conviction in place.  Applications for pardons and commutations — collectively termed “clemency” — are reviewed by the Parole Board, which — acting in its capacity as the Advisory Board of Pardons, and with the help of its Executive Clemency Unit — ensures that the requirements for clemency are met, conducts investigations about petitioners, holds hearings if appropriate (with opponents of clemency in each case invited to speak), and makes a recommendation to the governor.  If a governor approves clemency, the decision must then be ratified by the Governor’s Council.

Recent governors have, at least in theory, solicited formal clemency requests.  But the reality is that few such requests have been approved in the past couple of decades.  Indeed, until the past few months (see below), no pardon had been granted in Massachusetts since 2002.  Nor had any commutation been forthcoming since 1997, when Governor Bill Weld commuted the life sentence of Joe Salvati, who had served nearly 30 years for a crime he didn’t commit.  Even by then, only seven had been granted in the previous 10 years – with pardons also becoming less frequent — according to a 2009 article in the Boston Globe Magazine, which posed the rhetorical question, “Is [the justice] system [one] that allows for redemption and reevaluation over time, or is it strictly a system for retribution, where the judge and jury forever have the last word?”

That same article, noting several other states with far-higher rates of commutations, traced the decline in the granting of commutations back to the case of Willie Horton, which figured prominently in Governor Michael Dukakis’s unsuccessful campaign for President in 1988.

Across the country, pardons have traditionally been granted most often at the tail end of the calendar.  Surely the Christmas holiday has something to do with that timing, and perhaps the approach of a new year does as well.  It is especially common for a governor, or a President, to offer pardons or commutations at the very end of his or her last term, free from the need to seek re-election.

And so it happened that in 2014, Governor Deval Patrick, with his time in office drawing to a close, rewrote the rules he had previously applied to clemency requests, with an eye toward encouraging more applications.  For example, the new pardon guidelines did away with the requirement that a petitioner demonstrate a “compelling need” for clemency, instead focusing on whether he or she had made “extraordinary contributions to society” or faced a deportation that would be “unnecessary for public safety” and generate “especially harsh or unfair consequences.”  Commutations, under the guidelines, should be approved only if the petitioner can show the sentence was “unduly harsh” – either for a non-violent offense or as the result of the joint-venture or felony-murder laws – or that the petitioner has served a substantial portion of the sentence and is suffering from either a terminal illness or a serious debilitating condition.  For either type of clemency to be granted, applicants should “present no current risk of reoffending.”

About 70 people applied for pardons in the last year of Governor Patrick’s term, but only eleven have yet received hearings, and of those only four were granted pardons.  Among them were True-See Allah, a former gang member who now heads the Suffolk County Sheriff Department’s Boston Re-Entry Initiative, and Jeffrey Snyder, who has kept a clean record since serving two years after being caught selling marijuana as a teenager in the 1980s and said his conviction has kept him from pursuing his dream job as a high school sports coach.  In addition, one sentence was commuted — that of Deanne Hamilton, a recovering cocaine addict who said her substance abuse stemmed from childhood sexual abuse.  Hamilton had previously been released when her conviction was vacated but was sent back to prison when the Appeals Court reinstated her sentence.   She had three years left to serve at the time of her commutation.

Since taking office, Governor Charlie Baker has withdrawn Governor Patrick’s guidelines, promising to announce his own guidelines shortly.  In the interim, however, the remaining applications are in limbo, with Parole Board hearings on hold for those applicants — including, most famously, Mark Wahlberg.  We will continue to follow this issue.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Spreading the Word About Civil Legal Aid

cropped NELBEarlier this week, we were pleased to see the Chair of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, J.D. Smeallie, and Task Force member Professor Russell Engler, take part in a panel discussion along with Greater Boston Legal Services (GBLS) staff attorney Alexander Mitchell-Munevar at New England Law Boston.  The panel examined both a right to counsel and the current civil legal aid system.  Although the criminal right to counsel is imperfect, it is far more effective than the current civil legal aid system, wherein 64% of those in need are turned away.  On the criminal side, a right to counsel was born out of the Gideon Supreme Court case and its progeny in the early 1960s.  On the civil side, the Supreme Court has largely, though not entirely, rejected a right to counsel, starting in the Lasseter case in the 1970s and continuing through the 2011 Turner v. Rogers case.  These rulings have put us at odds with the rest of the world, as European countries began granting a right to counsel in certain civil cases around the time of the Lasseter decision.

Because of these holdings, the fight for a civil right to counsel has largely shifted to the states, and it has had some successes, particularly in Massachusetts.  For example, the Commonwealth gives a right to counsel in many civil juvenile cases and parental termination cases.  In fact, one-third of the cases handled by the Committee for Public Counsel Services (CPCS), the public defender organization in Massachusetts, are civil cases, largely in these areas.

Regardless of how it is addressed, either through a right to counsel or legal aid agencies, there is still a major shortfall in service resulting in the bulk of legal needs going unmet for poor populations.  There are many potential solutions – all of which have already been explored in some way or other in Massachusetts, often by the BBA, but which are always evolving in an attempt to make the most impact.  These include:

  • Simplifying court procedures
  • Installing new technologies
  • Revising the roles played by judges, clerks, and other court staffers
  • Hotlines, pro se clinics such as lawyer for the day programs, limited assistance representation opportunities, pro bono lawyers, court service centers, law student volunteering, non-lawyer “lay advocates”

However, as the New England Law panelists discussed, even if we are able to expand access to justice through some of the above ideas, another issue emerges: the quality of justice.  The goal is to offer meaningful access, not mere access to justice.  Certainly as the justice system currently exists in Massachusetts, the best way to accomplish that is by providing those in need with a legal aid attorney.  This means providing much-needed representation to individuals facing legal challenges for basic life necessities such as a wrongful eviction or a child custody dispute with an abuser.  It is not to provide lawyers to deadbeat renters or scheming divorcees.

Setting aside the moral imperative to give everyone meaningful access to justice, the BBA’s report, provides another justification – it’s a sound investment.  While the state has done a great job at gradually increasing the Massachusetts Legal Assistance Corporation (MLAC) line item and the private bar has stepped up to provide tens of millions of dollars in donations and pro bono services, the need for legal aid has never been greater.  However, based on the conservative reports of independent economic analysts, Massachusetts can expect a sizable return on investment for every dollar spent on civil legal aid.  In housing, each dollar invested yields $2.69, mostly in police and shelter costs.  In domestic violence, each dollar invested yields $2 in medical cost savings, and in federal benefits, each dollar invested yields a $5 economic benefit to the state.

The numbers are clear, now it is just a matter of spreading the word, and we are trying to do that every way we can.  From the forum described at the start of this post, to a Boston Globe cover story, numerous op-eds and editorials, and the recent Walk to the Hill, we are doing everything we can to expand the conversation about the need for civil legal aid funding.  We even took to Twitter with the Equal Justice Coalition’s (EJC) #iwalkforjustice campaign, featuring lawyers, politicians, and other public servants holding up signs explaining why they value legal aid.  Now it is your turn to spread the word – contact the Governor and your legislators (don’t know who represents you? Look them up here) let them know you understand the importance of civil legal aid and request that they fund line item 0321-1600 at $25 million for his FY2016 budget.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Walking for Justice

They may have needed snow boots to get there this year, but once again, hundreds of attorneys took part in Thursday’s Walk to the Hill to promote funding for civil legal aid.  This annual event is organized by the Equal Justice Coalition (EJC) – a collaboration created by the BBA, the MBA, and the Massachusetts Legal Assistance Corporation (MLAC) – and it always makes a great impression on the Legislature.  The largest lobbying day for lawyers in Massachusetts, this year lived up to the hype.  While we are still waiting for final numbers, there were more than enough lawyers to pack the Great Hall, as you can see below.


Our day started with a Walk to the Hill meet-up and networking event hosted at the BBA by the Solo and Small Firms and New Lawyers Sections.  Led by Gary Bloom and Lianne Henderson, the group enjoyed light breakfast and a discussion of legal aid before heading over to the State House.


BBA leadership also got in on the act.  At 10:00 am, President Julia Huston met with her Representative, Alice Peisch.


Shortly thereafter President Huston and President-Elect Lisa Arrowood together met with their Senator, Michael Barrett.


Both legislators were well-versed in the issues surrounding civil legal aid – not surprising, as they have been strong supporters of the MLAC, which funds civil legal aid programs across the Commonwealth.

By 11:00 AM, registration was beginning, and soon the State House’s Great Hall was standing room only and our twitter feed began buzzing with live tweets of the event.  After an enthusiastic welcome from EJC Chair John Carroll, Supreme Judicial Court Chief Justice Ralph Gants took the podium.  He explained that, while the current MLAC funding of $15 million may sound like a lot of money, it is the rough equivalent of every person in the state buying a Dunkin’ Donuts coffee once a year.  The request for $10 million in additional funding is nothing more than that cup of joe plus a bagel . . . without cream cheese.  He was able to put the numbers in perspective and provide some much needed levity to the event.  He even brought his own props:


BBA President Julia Huston told the crowd about the cost savings achieved through legal-aid funding, as demonstrated in Investing in Justice, providing attendees with the information they would need to speak knowledgably to their legislators.  MBA President Marsha Kazarosian also expressed her support for civil legal aid.


Two civil legal aid clients spoke as well, providing the day’s emotional high point.  They each related how civil legal aid attorneys from different parts of the state had changed their lives for the better by helping them gain protection from abusive spouses and win custody of minor children.

J.D. Smeallie, chair of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, was called to the podium by John Carroll to give an impromptu explanation of how we got to this point.  He told how IOLTA funding has dropped $27 million since 2007, while the number of eligible individuals has increased and the pool of civil legal aid attorneys has shrunk.


Attorney General Maura Healey followed, putting a cap on the speaking program by proclaiming that the functioning of our society and legal system relies on everyone being recognized, included, and represented – civil legal aid assures that everyone has access to that representation.


By noon, the speaking program was drawing to a close, and it was time for legislative visits.  The hundreds of lawyers assembled in the Great Hall broke off as individuals and small groups, making their way to legislative offices to speak with their respective representatives.

In all, this year’s Walk to the Hill was a great success.  Hundreds of lawyers came, their presence alone making a statement about the private bar’s support of civil legal aid.  They were inspired by the words of the Chief Justice, the Attorney General, bar leaders, and especially civil legal aid clients, and then they spread out throughout the State House to advocate for civil legal aid funding.  Hundreds more participated in Talk to the Hill (and you still can too!), a simultaneous call-in event where lawyers from outside the greater-Boston area phoned their legislators to express similar sentiments.  By taking only about an hour out of their busy days, these lawyers were able to make a huge difference for people in need.

Thank you to all the lawyers who participated – you have truly made a difference.  And we end with a final plea – don’t stop now.  The budget process runs another six months, and we need your continued support.  First up is contacting the Governor, to let him know the importance of civil legal aid.  Keep an eye out for e-alerts from us on key budget times and meet with, call, or send an email to your legislator then, too.  Keep up the relationship, and keep civil legal aid funding their priority.  Thank you again and keep up the great work!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Walk to the Hill 2015 – A Call to Action

The annual Walk to the Hill for Civil Legal Aid will take place on Thursday, January 29,  exactly one week from the date of this post.  It is the biggest lobbying event for the Boston legal community and one of the largest of its kind in the country.  Over 500 lawyers will pack the State House’s Great Hall at 11:30 am to hear remarks from the likes of Supreme Judicial Court Chief Justice Ralph Gants, Attorney General Maura Healey, and BBA President Julia Huston.  By noon, the speeches will end and the most important part of the day begins – legislative office visits.

We cannot stress this enough: go see your legislators!  If you can’t be there in person, give their offices a call.

Don’t know who represents you?  Find them here.  Need a more information?  Here is a fact sheet.  Talking points to begin the conversation?  We’ve got you covered.  We know it can seem daunting, but all it takes is a brief visit with a legislator or staffer – let them know you care about legal aid funding, explain why it’s important, and ask whether they will support it.  It’s that simple.

The BBA has long supported legal aid funding, but this year is unlike any other.  On the heels of our report, Investing in Justice, which followed 18 months of intensive study, we are now better prepared than ever to support our unprecedented ask for an extra $10 million in legal aid funding each of the next three years.  If granted, legal aid funding would rise to $25 million in this year’s budget, $35 million next year, and $45 million the year after.  While this still isn’t enough to solve the shortage in legal services, it will make a significant dent in the rate of turn-aways.  Currently, 64% of eligible individuals, meaning they subsist on less than 125% of the federal poverty level (under $30,000 for a family of four), with valid legal claims, many of them concerning basic life necessities such as shelter or protection from a batterer, cannot receive legal services due to lack of resources.

Investing in Justice goes beyond turn-away statistics; it includes testimony from legal aid clients about how legal services changed their lives, a survey of judges on how unrepresented litigants hinder courts in administering justice and operating efficiently, and quotes from business leaders explaining why they support civil legal aid funding.  Moreover, it includes three extensive studies conducted by independent economic analysts on the return on investment civil legal aid provides.  By their calculations, the state can benefit in the amount of $2 to $5 for every dollar invested in civil legal aid through savings on police, shelter, and emergency care costs, as well as economic growth.

We have written before that the news only reinforces the need for increased civil legal aid funding, and not just from the myriad of stories specifically based on our report.  For example, recently, the Boston Globe ran yet another story on the plight of individuals in need of shelter.  As the article explains, tightened eligibility requirements for homeless shelters force more families into life threatening situations, such as one mother and son who spend nights squatting in emergency rooms and T-stations, and a pregnant woman who spends the night huddled on a Quincy beach.  To quote the Globe: “Housing lawyers say they are overwhelmed with families who have been denied shelter since the regulations went into place a few years ago. Hospital emergency rooms report an increase in the number of people showing up with nowhere else to go.”  Two sentences couldn’t express the issue more clearly.  Increased civil legal aid funding would provide the resources to help families sort through the complex shelter regulations, putting them into shelters and removing them from emergency rooms, T-stations, and unsafe public spaces.

With the state facing a dire economic picture – a $765 million budget shortfall, as reported by Governor Baker’s office – it is going to take more convincing than ever to increase civil legal aid funding.  Yet, we have the perfect argument: increased civil legal aid funding will SAVE the state money.  That’s right, by investing in the Massachusetts Legal Assistance Corporation (MLAC) line item (0321-1600), Massachusetts will not only help the nearly one million people who qualify for civil legal aid to secure or maintain basic life necessities.  It will also save the state money.  The math is clear, every $1 spent on legal aid to prevent housing and homelessness saves the state $2.69, every $1 spent on legal aid to prevent domestic violence saves $2, $1 each for the state and federal governments.  When legal aid attorneys help their clients secure their rightful federal benefits, such as from Supplemental Security Income and Social Security Disability Insurance (SSI/SSDI) payments, the state’s economy grows by $5 for every dollar invested.

Think of it as preventative medicine – just as an ounce of prevention is worth a pound of cure, investing in civil legal aid saves the state on police, medical, shelter and other costs.  A family that wins a case against a dishonest landlord with the aid of an attorney gets to stay in their house rather than having to resort to a shelter and possibly foster care.  A domestic violence victim who gains protection from a batterer with the help of a legal aid attorney can break the cycle of abuse and avoid the repeated exorbitant costs of emergency medical care.  The numbers don’t lie.

In closing, we urge you to check out Investing in Justice, read the survey results, the testimony from legal aid clients, and the economic reports for yourself.  If you don’t have the time now, read the talking points.  Spread the word to your colleagues and come to Walk to the Hill to bring the message to your elected officials.  Tell them what you learned and make sure they understand that civil legal aid funding is important – to you, to the underprivileged who need legal aid to secure basic life necessities, to a court system overburdened by pro-se litigants, and to the state looking to emerge from a major budget deficit.  We look forward to seeing you at the State House on January 29th!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Following Up on the CPCS-ADA Salary Study Commission

We’ve written in this space at least twice before about the issue of underpaid assistant district attorneys (ADA’s) and staff attorneys at the Committee for Public Counsel Services (CPCS).  We turn to it again this week, both because it is a pressing issue of fairness and public safety, as well as a priority for the BBA, but also because there are new developments.

The Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys for the Committee for Public Counsel Services, established by former Governor Deval Patrick in July, released its report and recommendations shortly before the end of the Governor’s term.  The key takeaway: The minimum salary for both ADA’s and CPCS attorneys should be tied to that of the starting salary for attorneys in the Commonwealth’s executive-branch (Counsel I) – which stood at $55,360 at the time of the report but rose to $56,594 at the start of 2015.

The report spells out, just how low ADA and CPCS salaries are in comparison to their counterparts in other states.  In neighboring states, as the report says, “The findings were stark — Massachusetts is the lowest, despite a cost of living that is markedly higher.”

Last year, an MBA report made similar findings and drew support from Yvonne Abraham of the Boston Globe and the Massachusetts Lawyers Weekly editorial board.  The MBA emphasized that the low salaries for these public service lawyers, combined with the enormous burden of education debt, causes damaging turnover among fledgling attorneys in DA and CPCS offices and discourages others from even pursuing these jobs.

The Commission – which brought together CPCS and the District Attorneys, the House and the Senate, the MBA and the BBA, among others, and was chaired by the Secretaries of Public Safety and Administration and Finance – brings renewed attention to the issue and demonstrates the universal opinion of all stakeholders that a raise is not only justified, but long overdue.

As BBA Vice-President Carol Starkey, who was our representative on the Commission, put it:

ADAs and CPCS attorneys play a critical role in dispensing justice, and this report shows what the criminal-justice community has known all along – that these public lawyers, charged with protecting public safety and bringing constitutional guarantees of individual rights and procedural fairness to bear in our system, are woefully underpaid by every measure: whether that be in comparison to other government attorneys, in comparison to their colleagues in other states, or in relation to their training and expertise.  It’s long past time to address this general unfairness through a meaningful salary increase that would make these essential jobs, the very keystone of our criminal justice system, competitive to meet the cost-of-living needs of these committed lawyers.

After its release, the report was the subject of news items in the Boston Globe and Massachusetts Lawyers Weekly.

The MBA and Commission reports provide some much-needed momentum behind the push for raises in the 2015-16 legislative session.  However, the timing turns out to be far from ideal, with the state facing a fiscal crisis of a scale yet to be determined.  Estimates vary widely as to the size of the hole that has opened up in the state budget halfway through the 2015 fiscal year, and new Governor Charlie Baker and his team are looking into whether cuts may be necessary now, and how this situation may affect his FY2016 budget (due out in the next several weeks).

The bottom line for salary increases is that we will have to work even harder than expected to achieve our goal, in the face of these fiscal headwinds.  This will nevertheless continue to be a BBA priority, and we will keep you updated on developments.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Is The Moment Right For Comprehensive Mandatory-Minimum Reform?

This week, in her Let the Record Show blog, BBA President Julia Huston talks about a visit to a Dorchester session of Drug Court, which deals with offenders whose problems stem from substance abuse.  Below, Issue Spot takes a look at sentencing policies that address offenders who are convicted of drug offenses – specifically, those that trigger mandatory minimum sentences.

Over the past decade or so, a large and growing number of states, many of them “red”, have rolled back mandatory minimums – which are in many instances an artifact of the “tough on crime” approach that gained favor in the 1990s.  With budgets stretched and prisons overflowing – and with violent-crime rates down dramatically – states have found savings through mandatory-minimum reform and other changes to sentencing and incarceration policies, in some cases reallocating those savings toward more effective criminal-justice measures.

Massachusetts has made some recent changes around the edges but has been slower to embrace the kind of wholesale move away from mandatory minimums that the BBA (among many others) has long endorsed.  With the start of a new year and a new legislative session, however, that may be changing, as a review of some of the key players in this debate shows:

Former Governor Deval Patrick

In both 2010 and 2012, the outgoing Governor signed landmark legislation that reduced mandatory minimums for a host of non-violent drug offenses.  Yet as he left office, he told reporters that not having been able to go further was one of his biggest regrets.  In one of his last acts in this area, he reconstituted the state’s Sentencing Commission, which is charged with “developing systematic sentencing guidelines.”  The Commission has also been gathering extensive data on sentencing, which can be used as the basis for discussion of any changes to sentencing laws.

Governor Charlie Baker

As a candidate, Governor Baker told Families Against Mandatory Minimums (FAMM) that he would oppose extending mandatories or expanding them to additional crimes.  He went on to express his support for their repeal for drug offenses, adding, “I believe reforming minimum sentences could be part of an overall strategy to rethink how those with substance abuse issues are treated.”

Someone with Governor Baker’s background and reputation as a number-cruncher both inside government (as Governor Bill Weld’s chief budget-maker) and in the private sector (as CEO of Harvard Pilgrim Health Care) – may well appreciate the savings that can be achieved by keeping more people out of prison (such as through Drug Courts), by reducing sentences for those who do go to prison, and by improving the recidivism rate through evidence-based re-entry programs.  His selection of a Secretary of Public Safety — one of only two seats in his Cabinet yet to be filled — may send a key signal as to whether this will be a priority for Governor Baker.

Attorney General Maura Healey

During last year’s campaign, the new attorney general was quite vocal about her opposition to mandatory minimums.  She posted her plans for comprehensive criminal justice reform on-line, including an end to mandatories for non-violent drug crimes and expansion of Drug Court (and Mental-Health Court).  As the state’s chief law-enforcement officer, she will have a critical voice in this debate.

Senate President Stanley Rosenberg

A longtime champion of sentencing reform, the new Senate President looks to continue his commitment to this issue.  In his first speech as Senate President, he called for a “tough and smart” criminal justice system.  He also voiced concerns about high incarceration rates for those suffering from mental health and drug addiction problems, noting that Massachusetts lagged behind other states in this area.  Though he did not specifically commit to examining mandatory minimum sentences, Rosenberg, a former member of the Criminal Justice Commission (see below), is well-informed on the issue.

House Speaker Robert De Leo

The only returning leader on Beacon Hill, the Speaker has also been the quietest on sentencing policy.  He has shepherded through two rounds of mandatory-minimum reform — in each case as part of broader criminal-justice reform (CORI reform in 2010 and expansion of the “three strikes” law in 2012).

There are numerous members of the Speaker’s caucus who oppose significant reductions in mandatories, but under the leadership of Rep. Tom Sannicandro and Sen. Jamie Eldridge, a new bipartisan (and bicameral) “harm reduction” caucus – boasting more than 60 members from both houses – has come together to support broad reforms on criminal-justice policies affecting drug offenses.  They are expected to file a bill next week that would repeal most, if not all, existing mandatories for drug crimes.

Chief Justice Gants

The state’s highest-ranking judge and one of the leaders of the judicial branch made his position clear in his “State of the Judiciary” speech this past October, asking every trial court department with criminal jurisdiction to convene a working group to ensure that all sentences are individualized and evidence-based.  He went on to describe the disparate impact mandatory minimum sentences have on racial and ethnic minorities and said, “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism.”  He has made those feelings known in other forums as well and clearly intends this to be one of his top priorities during the new legislative session, as he seeks to build relationships with the leaders — most of them, like him, new to their positions — of the other two branches of government.

Criminal Justice Commission

This standing commission, first created in the FY12 state budget, has been operating mostly under the radar for more than three years, under the leadership of two different Secretaries of Public Safety.  Made up of dozens of members representing stakeholders such as prosecutors, defense attorneys, the Attorney General, the sheriffs, the Department of Mental Health, and the Department of Youth Services (to name just a few), the panel includes Marty Murphy as its BBA representative.  They have been meeting monthly and deliberating over no less broad a range of issues — from pre-trial diversion to security classifications for prisoners to measurement of recidivism — but with the Patrick Administration coming to a close, they proceeded to votes on three key recommendations late last year, including one to remove mandatory minimums for all drug offenses.


Though they by no means speak with one voice on sentencing, the state’s 14 sheriffs — who operate the county jails where inmates serving shorter sentences are housed — are at the front lines of the incarceration crisis.  Several have spoken out on the need to rein in mandatory minimums.

We know these individuals are certainly not alone in their stance. In fact, there is strong polling evidence that the most important constituency of all, the public, has shifted its views, with solid majorities now favoring judicial discretion over mandatory sentences and prevention and rehabilitation over enforcement and punishment.

Many others share their concerns about mass incarceration and the unfairness of mandatory minimum sentencing.  We look forward to working with all of the above stakeholders, and any others interested in improving the criminal justice system by eliminating mandatory minimums, and we will do our best to keep you updated on our progress.

— Michael Avitzur
Government Relations Director
Boston Bar Association

The Year in Review: Looking Back at 2014 (and Ahead to 2015)

We knew at the start of 2014 that this year would mark a turning point: Marty Walsh was set to be sworn in as the first new mayor of Boston in 20 years, and both Governor Deval Patrick and Senate President Therese Murray were entering their final full year in office.

We now know that Charlie Baker, former Weld Administration official and health-care executive, will be the next Governor, and long-time legislator Stanley Rosenberg of Amherst is expected to be chosen as the next Senate President when the Legislature reconvenes in early January for its 2015-16 session.  The only continuing member of top leadership at the State House will be Speaker Robert DeLeo, though the countdown has begun toward the 2017 end of his term, which is limited by House rules to eight years.

This fall’s elections also saw former BBA Executive Committee and Council member Maura Healey, in her first campaign for elective office, win the race to replace her former boss, Attorney General Martha Coakley.

Change was in the air on Beacon Hill well before Election Day, with a large number of members departing in the middle of their terms.  The session began in 2013 with Senator Katherine Clark and Representative Eugene O’Flaherty as co-chairs of the Judiciary Committee, but by early 2014, both were gone.  Clark won a special election last December for Ed Markey’s seat in Congress after his election to the U.S. Senate.  O’Flaherty gave up his chairmanship after 12 years to become Mayor Walsh’s Corporation Counsel.  William Brownsberger was named the new Senate co-chair, and House vice-chair Chris Markey filled in temporarily for O’Flaherty.  Stephen Brewer, chair of the powerful Senate Ways and Means Committee, is retiring – no word yet on his replacement.

Amidst this upheaval, the Legislature enacted sweeping changes to the state’s laws on domestic violence.  The changes, including a required minimum 6-hour hold before the release from custody of anyone accused of a domestic assault and a ban on publicly releasing  identifying information in such cases from police logs, were prompted in large part by the scandal surrounding the lengthy criminal history of Jared Remy, who pleaded guilty in May to the first-degree murder of his girlfriend.

After the tragedy in Newtown, Connecticut, the Legislature passed gun-law reforms that solidify Massachusetts’ place as one of the most-restrictive states in the country while also addressing the concerns of gun owners about the scope of police chiefs’ authority to deny them a license to own a weapon.

Offenders convicted of first-degree murder as a juvenile will face a 20-to-30-year minimum before parole eligibility, depending on the severity of the crime, under a new law.  The Legislature was on notice that the state’s pre-existing law – imposing mandatory life-without-parole sentences on juveniles and adults alike – was unconstitutional since the U.S. Supreme Court’s 2012 ruling in Miller v. Alabama.  But shortly after the BBA released its December 2013 principles opposing juvenile life without parole sentences, our own SJC followed with a pair of decisions last Christmas Eve (Diatchenko and Brown) that overturned any sentence of life without parole for juvenile murders.

And in a move mostly of interest to the legal community, the Legislature also created a limited right to attorney voir dire in state-court jury trials.  The new law takes effect in February, and an interim order – developed with the help of a committee that included BBA Secretary Mark Smith — is already in place.  (On January 21, the BBA will host a CLE program on the new rules.)

Although this session will conclude, for the first time since 2008, with no broad changes to mandatory minimum sentencing – which the BBA opposes — such reforms were a growing topic of discussion throughout the year.  Several candidates for statewide office, including the incoming Governor, expressed support for the elimination of mandatory sentences for non-violent drug offenses.  A standing state commission on criminal justice, including BBA representative Marty Murphy, wrapped up 2014 by voting for a similar recommendation.  And a bill to that effect is expected to be filed in January on behalf of a large new caucus of legislators supporting drug-law reforms.

Change was afoot as well at the Supreme Judicial Court, where Chief Justice Roderick Ireland stepped down shortly before reaching the mandatory retirement age of 70.  His colleague on the SJC, Ralph Gants, was elevated to the top position in the state’s judiciary, and Geraldine Hines was promoted to the SJC from the Appeals Court, becoming the first black female justice and putting women in the majority for the first time.  Governor Patrick made both selections, with the approval of the Governor’s Council.

Five of the seven current justices on the SJC were appointed by Governor Patrick, who named the first Jewish (Gants) and black (Ireland) chief justices, and the first Asian-American (Fernande Duffly), and openly-gay (Barbara Lenk) justices.  His imprint on the judiciary extends well beyond the high court, as he appointed 188 of the state’s 411 sitting judges.  Recent retirements, spurred by long-overdue pay raises for judges phased in by the Legislature over 2013 and 2014, created some of that turnover.  For the historic diversity of his selections, the BBA gave Governor Patrick its Beacon Award for Diversity and Inclusion.  With Justices Hines, Spina, and Botsford turning 70 in the next four years, Governor Baker will have the opportunity to place at least three justices on the SJC.

Here at the BBA, we proudly released Investing in Justice, the report of our Statewide Task Force to Expand Civil Legal Aid in Massachusetts, chaired by former BBA President J.D. Smeallie.  The report received universally positive attention from the press, including a front-page story in the Boston Globe.  The Globe followed up with two supportive editorials and an editorial cartoon.

Our work in this area is far from done, as both J.D. and current BBA President Julia Huston have begun meetings with key legislators, making the case for a $30 million increase in legal-aid funding over the next three years.  The Task Force concluded that such an increase in legal-aid funding is crucial to alleviating the justice gap that sees 64% of qualified applicants turned away and has created a troubling influx of pro-se litigants in our courts.  Backed up by three independent reports from economic analysts, the Task Force Report also demonstrates that an investment in legal aid will grow the economy and will more than pay for itself in the form of reduced state costs in a variety of areas, such as shelter for the homeless, medical expenses, and foster care.

This year, the BBA also argued against a shift in accounting practices being considered by Congress – one that could have had a devastating impact on law firms.  We advocated for the uniform guardianship bill that passed the Legislature on the final day of formal sessions; supported by our Trusts and Estates Section and the BBA Council, the bill will streamline cooperation between courts of different jurisdictions on guardianship and protective proceedings, making these cases more efficient, saving the time and resources of the probate court and attorneys that practice there.  Our death-penalty working group led to a broadening of our long-standing opposition to the death penalty to include federal cases.  A BBA task force looked into the fall-out from the drug-lab scandal triggered by state chemist Annie Dookhan’s criminal misconduct and called for increased funding, stricter oversight, and a prompt resolution of all open cases.  And we learned that the SJC had largely adopted the position of our amicus brief in Commonwealth v. Taylor, in which we called for clarification of the speedy-trial rule.

In 2015, we will continue to engage with all three branches of government to promote our agenda.  In January, bills will be filed on our behalf on a broad range of issues, including an update to our estate law on the spousal elective share, a uniform law on intellectual property, and technical changes to title protection rules.  The new Governor will file his first budget in March, and we will be seeking continued increases to the judiciary budget, which grew to $612 million this year, as well as expansion of their specialty courts for veterans, substance abuse, and mental health.

In short, we look forward to an exciting and productive 2015.  Happy New Year!

— Michael Avitzur
Government Relations Director
Boston Bar Association

Housing Court For All

The BBA is pleased to add its name to the large and growing list of supporters for a statewide housing court, following unanimous Council approval earlier this week.The proposal had earlier received recommendations from our Real Estate and Delivery of Legal Services Sections.  Housing Court is a special court session conducted by experienced and expert judges.  They operate out of already existing court houses, providing landlords and tenants with a special legal forum to resolve disputes, as well as code enforcement, mortgage fraud, and numerous complex housing matters.

Housing Court was first established in 1972 for the City of Boston.   Since then, it has gradually expanded through the advocacy work of local constituencies to its current makeup consisting of five divisions covering approximately 80% of the state geographically.  Housing Court is the only forum in the Commonwealth set up to handle code enforcement, evictions, and other housing issues on a daily basis.  Its judges have the expertise to analyze the federal, state, local laws, and codes on housing.

Housing Court is also the only forum to use Housing Specialists, individuals who mediate cases, saving potential litigants time and money they would otherwise spend to have their case heard in court.  Over half of Housing Court cases were resolved in this way last year.  Specialists also perform on-site reviews of property to resolve issues concerning housing conditions.  In part because of these services, Housing Court is extremely efficient, featuring the lowest cost per case of any Trial Court department.

Finally, Housing Court is adept at serving pro se litigants and individuals facing evictions.  It is home to the Tenancy Preservation Program (TPP), a counseling service designed to intervene in cases affecting individuals with physical and/or mental disabilities to help prevent homelessness, as well as volunteer lawyer-for-the-day and other self-help forums.

Despite all these benefits, nearly one-third of Massachusetts residents do not have access to a housing court.  Currently, there is no Housing Court for all of Barnstable, Dukes and Nantucket Counties, most of Norfolk County, and a large portion of Middlesex County.  These areas include cities such as Chelsea, Framingham, Malden, Cambridge, Medford, Somerville, Watertown, Woburn, and Waltham, which have some of the highest number of rental units.  As a result, any housing or code enforcement issues in these counties are heard in District Court, where judges may not have any special housing expertise and housing cases are simply a drop in the bucket of a high volume caseload.  One consequence we’ve heard is that municipalities not covered by the Housing Court sometimes don’t even bring code-enforcement actions to District Court, because they know the inevitable delays make it not worth the effort.

Another interesting element of this proposal is the simplicity with which it can be accomplished.  Because the Housing Court is simply a special sitting, it will continue to operate out of existing court houses.  A handful of support staff is all that is needed to make it a reality.  The total cost to the state is estimated to be roughly $2.4 million per year.  However, funding is a secondary element, as the current proposal seeks only approval of the policy issue of expanding Housing Court statewide. With the support of SJC Chief Justice Ralph Gants, the court will pursue funding on a separate track.

We hope that lending the BBA’s voice to the chorus of supporters will help put this proposal over the top.  We will do our part to make the case in the Legislature that expanding the Housing Court is a step toward greater efficiency and a move in the right direction not only for lawyers and the judiciary but also for two million people, many of whom are renters, in the communities that currently lack the special services only Housing Court provides.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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