Walk to the Hill Recap and Budget Update

Last week, hundreds of civil legal aid supporters rallied at the State House at Walk to the Hill, in support of adequate funding for the Massachusetts Legal Assistance Corporation (MLAC), the largest provider of funding for legal services programs in the state. This event annually falls immediately after the release of the Governor’s budget recommendation and kicks off the BBA budget advocacy, which we previewed for you recently, in an exciting fashion. Keep reading for a recap of last week’s Walk, a request for those of you who couldn’t attend, and an update as to how our other budget priorities fared in Governor Charlie Baker’s proposal.

Walking for Justice

Walk to the Hill is coordinated by the Equal Justice Coalition, in which the BBA is an equal partner with the Massachusetts Bar Association and MLAC. Each year, it proves to be one of the largest advocacy events of its kind in the Commonwealth, and we are thrilled that 2018 was no different. Though the final tally is still being counted, roughly 700 lawyers and law students attended this year’s Walk to ask for an increase of $5 million in the MLAC line-item for a total appropriation of $23 million. We are grateful, as always, that the BBA got to be a part of this stunning show of support for access to justice.

Michael Avitzur, BBA Director of Government Relations & Public Affairs, addresses the BBA Walk to the Hill Breakfast attendees

As always, our Walk to the Hill day started off with a BBA Breakfast where we were joined by in-house counsel, solo and small firm practitioners, new lawyers, and dozens of UMass Law Students. At this standing-room-only breakfast, Director of Government Relations Mike Avitzur reviewed the talking points, the $23 million ask, and tips on how to talk to elected officials about civil legal aid. After fueling up on pastries and coffee, the BBA Breakfast attendees headed over to the State House and joined the crowd gathering in the Great Hall for the kick off to the Walk.

The impressive Walk to the Hill turnout has helped to build a solid base of support in the legislature, which increased the MLAC line-item from $15 million to $18 million between 2015 and 2017, even at a tough fiscal time when other-line items were not receiving that level of growth. As you know, the BBA’s own Investing in Justice Report has also been a critical tool in this advocacy, showing the great need for civil legal aid and the positive return on investment the state achieves from adequately funding legal services programs.

Walk to the Hill crowd at the Great Hall

BBA President Mark Smith highlighted the findings of this report in his speech to the crowd, noting both that an increase in state funding is critical to achieving access to justice for all and a smart investment. He also offered a few examples as to why, more than ever, a $5 million increase is necessary, pointing to recent natural disasters, and developments at the federal level, including threats to end federal funding for legal aid and changes to immigration policies, all of which are driving up demand for legal help at the state level.

For example, following Hurricane Maria, thousands of evacuees from Puerto Rico have sought resettlement in Massachusetts, including 2,000 school-aged children who need to enroll in local schools. These students, and their families, undoubtedly have pressing legal needs related to, in addition to education, other necessities like housing and health care.

Mark Smith, BBA President and partner at Laredo & Smith, addresses the crowd

President Smith further honed in on the impact of changes to immigration policies, offering two examples in the Commonwealth focused on students and children. First, he relayed a story from the Executive Director of MetroWest Legal Services, Betsy Soule, who held a Know Your Rights briefing on immigration last year at Framingham High School after school administrators asked her to speak to students, many of whom were very worried about their parents’ immigration status, with some afraid to even continue coming to school lest they risk being confronted by an immigration official. Nearly 400 students attended that event, and when Betsy offered to stick around to take specific questions, 80 students took her up on this. Many students, and their families, are facing incredibly significant consequences due to immigration policy changes, including potential deportation, making access to a lawyer more imperative than ever.

Chief Justice Ralph D. Gants also made the connection between immigration policy changes and the need for increased funding for civil legal aid. He gave a number of striking examples as to why $5 million more than last year is needed, noting a dedicated mother of two from El Salvador who cleans Boston offices from 5pm to 2am now faces deportation and separation from her family as her Temporary Protected Status has been suddenly dropped, and a teenage girl who aspires to be an architect but may have to drop out of high school early to support her younger sisters if her parents are deported, as well as a DACA “Dreamer” who has been in the country since she was 7, is enrolled at Northeastern University and whose future is now up in the air. In his powerful remarks, the Chief Justice concluded that “it has never been more important for our brothers and sisters who are poor, undocumented, or displaced to have access to attorneys who can enforce and defend their rights, articulate their claims and defenses, and advocate their cause.”

Chief Justice Ralph D. Gants of the Supreme Judicial Court addresses the crowd

Individuals at the Walk also heard inspiring speeches from EJC Chair Louis Tompros, of WilmerHale and MBA President Chris Sullivan who both highlighted the special role that lawyers play in achieving justice. EJC Chair Tompros noted that legal aid lawyers are “absolute superheroes,” but they needed more resources to meet the great need for services in the Commonwealth, and President Sullivan noted that lawyers have a special duty to ensure that “justice for all” is more than just an empty slogan.

Finally, the crowd was lucky enough to hear a striking personal account of the importance of legal aid from Danielle, a client of Greater Boston Legal Services (GBLS). Danielle relayed her harrowing multi-year struggle to get much-needed benefits for her daughter with sickle-cell disease. She noted that “everyone that touched my case genuinely cares about my daughter,” and that having GBLS in her corner allowed her to focus on the health of her daughter, while letting the lawyers take care of the legal needs.

After that moving and energizing kick-off ceremony in the Great Hall, the 700 lawyers-turned-activists received instructions 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.

If you were unable to make it to the State House last Thursday, fear not. There is still time to “Talk to the Hill” by calling (or emailing) your legislators to urge them to support a $23 million appropriation for MLAC. As always, the MLAC FY19 Fact Sheet, EJC Talking Points, and our own Podcast on How to Talk to Your Legislator (about Civil Legal Aid) will give you all the tools you need to make the ask.

Plus, keep an eye out for upcoming BBA e-alerts, where we’ll be calling on members for additional outreach and support at each stage of the budget cycle, on MLAC funding and our other priorities. Speaking of which…

Governor Baker’s FY19 Budget                          

The day before Walk to the Hill Governor Baker released his proposed $40.905 billion FY19 Budget, which reflected a 2.6 percent spending increase over FY18. Even though the House and the Senate are free to go a totally different direction on each and every line-item, the Governor’s budget does set a tone for the debate, and it’s worth checking in on how some of our long-standing budget priorities fared. You can also read our recent FYI9 budget letter to the Governor here.

Governor Baker proposed the same 1% increase in funding to the MLAC line-item as last year, making the total proposed appropriation $18.18 million. This, of course, falls quite short of the $23 million ask, but armed with all of the above reasons for why increased civil legal aid funding makes sense, we’ve been able to achieve significant funding beyond the initial proposal in years past. This is what makes your Talk to the Hill and e-alert actions over the next few months so important!

The Governor’s overall Trial Court appropriation of $668.53 million signaled his understanding of the importance of an adequately funded judiciary, but falls $3.4 million short of maintenance funding. We are hopeful that the Legislature will build upon the Governor’s recommendation by adding at least that amount.

The Governor also included additional funds for the Probate and Family Court, which should prove especially helpful given the dire shortage of legal assistance in Care and Protection cases currently plaguing the state. And on the statewide expansion of the Housing Court, where the Governor has showed strong leadership, we were thrilled to see this leadership continue! You may recall that, following four years of advocacy, statewide expansion became a reality last year, when both $1 million in funding and authorizing language were included in the FY18 Budget. As we’ve outlined, in order for the full gamut of benefits to be expanded statewide, the Housing Court must be adequately staffed and include the important parallel expansion of programs like the Tenancy Preservation Project and Lawyer for the Day. As such, we are seeking $2.6 million in the FY19 budget to ensure the expansion runs smoothly and efficiently. The Governor recommended this full $2.6 million appropriation in the Housing Court Expansion line-item, and we will make the call for the House and Senate to include this amount in their budgets as well.

As we mentioned, the release of the Governor’s budget is just the first step in a months-long process, and the next major step 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. After that, it’s on to the Senate for the same series of events, with their version released in May. Then 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. Be sure to check out our Geeking Out on the State Budget Podcast for a “101” on the Massachusetts Budget Process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

DA Marian Ryan, Rep. Chris Markey and ACLU’s Rahsaan Hall Discuss Criminal Justice Reform in the Commonwealth

We have spent this entire legislative session focused on the debate over criminal-justice reform.  As we’ve noted here, we released a report last fall, No Time to Wait, in the run-up to the floor debate and vote held in both the State Senate and the House.

Now that both bodies have produced their own blueprints for reform, the next step—hashing out compromises on the many differences between the House and Senate bills—is in the hands of a six-member conference committee appointed toward the end of 2017.  Their work, as is typical, is being conducted behind closed doors, offering little insight into their progress toward final legislation.

So it was informative and timely for us to welcome three major players in that debate to the BBA this week, to get their takes on what they’d each like to see as part of a criminal-justice package, and how they see the issues from their perspectives:

  • Since 2013, Marian Ryan has been the District Attorney for Middlesex County—the largest county in Massachusetts. She broke with the rest of her colleagues to endorse the Senate’s criminal-justice bill, and she recently made news with her decision to instruct her ADA’s to forego cash-bail requests in non-violent, low-level cases in the district court.
  • State Representative Christopher Markey previously served as vice-chair and acting co-chair of the Legislature’s Judiciary Committee, and on the working group for the Council of State Governments’ (CSG) recent review of the Massachusetts justice system. Following 16 years in the Bristol County DA’s office, he now operates his own law practice.
  • Rahsaan Hall, former co-chair of the BBA’s Civil Rights & Civil Liberties (CRCL) Section, is the Director of the Racial Justice Program for the American Civil Liberties Union of Massachusetts. In that capacity, he is one of the state’s leading advocates for broad and durable criminal-justice reforms. Rahsaan previously worked as an ADA in Suffolk County.
  • Natashia Tidwell of Hogan Lovells, current co-chair of the BBA’s Civil Rights & Civil Liberties Section, moderated the discussion, which was sponsored by both the CRCL Section and the Criminal Law Section.

CRCL Co-Chair Natashia Tidwell with panelists Rahsaan Hall, DA Marian Ryan, and Rep. Chris Markey

Tidwell started by asking each panelist where they saw the most-pressing need for reform in the current system, and Rep. Markey pinpointed drug offenses—including the importance of a shift toward a public-health approach, and away from “tough on crime” policies that have ignored the need for treatment.  Our criminal-justice system isn’t equipped to act as a social-justice system, but the tools are there to direct individuals toward resources that can support them; we just need to be more creative and provide incentives for all stakeholders—judges, prosecutors, defense attorneys, and lawmakers—to act on them.

For Hall, racial disparities in the Commonwealth must be addressed immediately.  What we have now, he says, is more of a criminal-legal than a criminal-justice system, because justice is being denied to so many.  These disparities—which are among the worst in the nation for black defendants and the absolute worst for Latinos and are exacerbated at every point of contact—undermine the argument that our incarceration rate is lower than most other states.  He outlined data showing that mandatory-minimum sentences help drive that problem.  For example, three-quarters of prisoners serving such sentences for drug crimes are people of color.  (These same disparities were addressed in the BBA Report, which reiterated our opposition to mandatory minimums and called, once again, for their repeal in all drug cases.)

DA Ryan talked about her efforts to treat defendants as individuals and focus more on preventing recidivism rather than pushing cases through the system en masse—which she sees as merely kicking the can down the road.  By the time someone is processed through a DA’s office, something has gone very wrong in their life, and frequently it’s the result of co-occurring problems such as substance abuse, mental-health, or social disorders.  She advocates for new approaches to break the cycle of recidivism, which is too often a multi-generational one.

One such alternative approach the DA has embraced—overcoming her own initial skepticism, she said—is restorative justice, which brings both victim and offender together, alongside law-enforcement and a judge, but outside the court system.  (The BBA’s PILP program held a symposium on restorative justice in 2016.)  DA Ryan has observed these “circles” and witnessed transformation there unlike any she has seen in the traditional justice system.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

When asked what reforms they’d like to see included in legislation, Hall said we need to act on “front-end” reforms—such as keeping people from entering the justice system in the first place and reforming charging practices—as opposed to the back-end focus that the CSG group settled on.  He feels an urgency now, because while the pendulum has swung toward consideration of smarter criminal-justice policies, he fears that this year’s legislative package may be the last opportunity to achieve significant change for the next decade.

Rep. Markey returned to mandatory minimums, arguing that while there is a place for such sentences in a prosecutor’s arsenal—such as in helping to make a case against a violent offender—they can produce unjust and “ridiculous” imbalances, for example when a drug offense produces a longer sentence than the rape of a child.  He’d like to see legislation address that, perhaps in part by requiring judicial findings or allowing part of a mandatory minimum to be served under community supervision (although he worries that we have too many people on probation already).  But he also feels that prosecutors have the tools they need to handle their cases, even if mandatory minimums went away entirely.

He further decried the increase in collateral consequences that ex-offenders face and argued that judges should have the authority to deal with charges in a way that obviates them.  DA Ryan added that her office offers diversion to defendants for drug crimes, juvenile offenses, and young-adult offenders, so as to relieve them of the burden of collateral consequences, where appropriate.

Hall would like to see more mandated sharing of data from every corner of the justice system, in part as a means of addressing disparities.  “You can’t manage what you don’t measure,” he said.

Both DA Ryan and Rep. Markey said that, in order for meaningful reforms to occur, all stakeholders in the system must be willing to yield some of their power for the greater good.  And in response to a question from former US Attorney Carmen Ortiz, they both agreed that people need to step outside their comfort zones and addressed the issue of educating law enforcement on best practices: The DA said she and other law-enforcement officials she’s worked with in Middlesex County have been able to do that.  And Rep. Markey singled out police officers, who he said were more professional than ever these days, and understand that sometimes the people they encounter just need a second chance.

On that note, we hope this constructive dialogue is mirrored across the street within the conference committee.  We look forward to their end product, and we hope that they will move forward on each of the six keys issue areas that our No Time to Wait report addressed.

—Michael Avitzur
Government Relations Director
Boston Bar Association

ICYMI: SJC holds judges can consider victim statement in sentencing

Last month, the Massachusetts Supreme Judicial Court made a landmark ruling on victim testimony, holding in Commonwealth v. McGonagle that judges can consider the sentence recommendations of crime victims. The ruling feels especially timely given the recent national attention on the role of victim testimony, and the judge, in the Larry Nassar Abuse case.

Here in the Commonwealth, state law has allowed victims to appear in court to share personal accounts and recommend a sentence for the past two decades. Massachusetts General Law, 258B, Section 3(p) permits “victims, to be heard through an oral and written victim impact statement…against the defendant about the effects of the crime on the victim and as to a recommended sentence.”  In McGonagle, an assault and battery case, the victim recommended a sentence to the judge at the sentencing hearing, and the defendant thereafter challenged the portion of M.G.L. 258B which permits the victim to recommend a sentence.

The challenge argued that consideration of the victim’s recommended sentence violates the 8th amendment of the U.S. Constitution and Art. 26 of the Massachusetts Declaration of Rights, which prohibits cruel and unusual punishment as well as the constitutional guarantee of due process. Part of the Defendant’s argument relied on the 2016 Supreme Court decision in Bosse v. Oklahoma, which precluded the use of victim sentencing recommendations to the jury in a capital punishment case.

The SJC ultimately distinguished the constitutional concerns related to the jury phase of a capital murder trial from the presentation of evidence to a judge in a non-capital case.  Justice Lowy’s opinion for the unanimous court concluded that “[w]e all stand equal before the bar of justice, and it is neither cruel nor unusual or irrational, nor is it violative of a defendant’s due process guarantees, for a judge to listen with intensity to the perspective of a crime victim.”

You can read the full opinion here.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Let the BBA Budget Advocacy Begin!

It’s that time of year when our budget priorities become a focus here in the Government Relations Department of the Boston Bar Association (BBA). With Governor Charlie Baker’s Budget for Fiscal Year 2019 (FY19) to be released next week, we wanted to offer a refresher and a preview on what we’ll be focusing on in the coming months. First, though, make sure you’ve cleared your calendar for next Thursday’s annual Walk to the Hill for Civil Legal Aid (more below)!

Trial Court

As usual, we’ll be urging, at each step of the budget process (from the Governor’s initial budget to the House to the Senate to the Conference Committee and back to the Governor), for adequate funding for the Trial Court appropriation. The Trial Court, which is made up of seven court departments, handles the vast majority of cases in the Commonwealth, and as a result, acts as the primary point of contact for nearly all Massachusetts residents who are seeking resolution of a legal issue. In order to ensure the efficient operation of the judicial system and fair, impartial, and equal access to justice, it is essential that the Trial Court receive adequate funding.

Over the last few years, the Trial Court has made great strides in finding ways to work smarter and leverage technological advancements to get more done with less money and less staff. Their current request for maintenance funding of 6,359 positions represents a decrease of 161 positions below the FY16 staffing level and a 19% reduction since FY02. Despite these efforts, and even with steady increases in funding from the Governor and Legislature, the Trial Court still has a major need for increased funding to sustain and continue the progress made in recent years. In addition, the Trial Court’s facilities are in dire need of security system upgrades, which are necessary to preserve the safety of court employees, users, and the general public, ensuring the Trial Court remains effective and accessible for all residents of the Commonwealth.

This year, we are advocating for the Trial Court’s requested maintenance-level appropriation of $671.2 million—which represents an increase of nearly 3% over the current fiscal year—plus any necessary increases that may result from collective-bargaining negotiations.

Housing Court

We were thrilled to report that, following four years of advocacy led by the Massachusetts Law Reform Institute and supported by the BBA, statewide expansion of the Housing Court finally became a reality in the Commonwealth when both $1 million in funding and authorizing language were included in the FY18 Budget. This expansion means that the 84 cities and towns that previously lacked access—representing nearly a third of the state’s population— now enjoy the many advantages Housing Court has to offer.

As we’ve reported on, many times over, the Housing Court offers many significant benefits, including judges who have specialized knowledge on all, often complex, housing law matters, and housing specialists, who help tenants and landlords settle and mediate cases, saving the time and costs associated with litigation. Another key benefit of the Housing Court is the Lawyer for the Day Program, which has offered, since 1999, free advice, mediation, and case litigation on “eviction day” for unrepresented tenants and landlords that cannot otherwise afford legal assistance. Also, the Tenancy Preservation Program (TPP) provides a unique intervention that enables trained counselors to assist with services in cases involving persons with disabilities, helping to prevent homelessness and shelter stays. All of these advantages ultimately make the Housing Court a true example of efficiency, featuring the lowest cost per case of any Trial Court Department.

Implementation of the expansion is now underway, and the search has begun for two new judges and a Clerk Magistrate, and Barnstable, Middlesex, Norfolk, Dukes, Nantucket, and Suffolk counties are all expanding the Housing Court to every resident within their jurisdiction. In order for the full gamut of benefits to be expanded statewide, the Housing Court must be adequately staffed and include the important parallel expansion of programs like the TPP and Lawyer for the Day. As such, we are asking the Governor to include $2.6 million in the FY19 Budget to ensure the expansion, including the creation of a new sixth division, runs smoothly and the Housing Court remains a model of efficiency. An additional $500,000 appropriation for the TPP line-item (7004-3045) would allow for the hiring of 7.5 full time TPP providers, so that program, too, can expand statewide. Plus, estimates show that TPP saves the state between $5.5 and $11 million in shelter costs, and a thorough TPP expansion could result in an additional $2.5 – $5 million in savings.

CPCS

This year, we will also be urging, as usual, adequate and timely funding for the Committee for Public Counsel Services (CPCS), which plays a vital role in our judicial system, providing representation to indigent persons in criminal and civil cases and administrative proceedings, in keeping with the right to counsel under our laws and the Constitution. Adequate funding would help CPCS to increase salaries of their staff attorneys, who are woefully underpaid in comparison to their colleagues in other states, and to attorneys of similar experience in the executive branch. This is not merely our conclusion but that of the Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys of the Committee for Public Counsel Services. The BBA supports the Commission’s 2015 recommendation that minimum salaries for these attorneys be increased, over time, to match the corresponding minimums for executive branch attorneys, and increased funding for CPCS would be a significant and beneficial step in that direction.

CPCS funding in the FY19 budget is especially critical because the state faces what the Chief Justice of the Supreme Judicial Court has called a “constitutional emergency.” In cases where a child is facing removal from parental custody, the parents and children have a right to representation at a hearing within 72 hours. There are too few attorneys taking up these cases, and as a result, children and parents, especially in the western parts of the state, are being denied their constitutional right to a timely hearing. Adequate funding would allow CPCS to increase compensation for bar advocates, or private attorneys who defend indigent clients, which would help to find attorneys willing to take on these tough cases and protect the constitutional rights of these parents and children.

MLAC

Last, but certainly not least, each year we focus on adequate funding for civil legal aid through the MLAC line-item. MLAC was level-funded in the FY18 budget, for a total appropriation of $18 million. This year, we are supporting MLAC’s ask for a $5 million increase in the line-item for a total appropriation of $23 million.

In 2014, the BBA’s Investing in Justice report underlined the great need for increased civil legal aid funding when it revealed that each year, MLAC-funded legal services programs are forced to turn away nearly two-thirds of qualified applicants. Unfortunately, due to shortages in funding and increasing demand, approximately 45,000 otherwise eligible individuals are turned away each year in Massachusetts. In addition, changes in federal policies on issues such as immigration, as well as proposed reductions in funding to the leading federal provider of legal service programs, the Legal Services Corporation, threaten to increase this demand even further—just as continuing challenges like the opioid crisis and emerging issues like the resettlement of individuals impacted by Hurricane Maria and other natural disasters add to the burden borne by legal services. Unfortunately, when one is unable to access legal services, the consequences can be devastating, as often one’s family, home, health, and job may be at stake in civil legal matters.

In light of this ever-expanding need, and the devastating consequences, it is vital that the state adequately fund civil legal aid programs in the Commonwealth. Fortunately, as Investing in Justice established, legal aid actually pays for itself, and more, by saving the state money on “back-end” costs such as emergency shelter, foster care, and health care. A $5 million increase in the MLAC line-item would enable programs to hire 31 additional attorneys, 8 additional paralegals, 6 support staff, and assist more than 7,500 low-income residents of the Commonwealth.

As you likely know, the budget advocacy for MLAC and civil legal aid ramps up each January with one of the largest lobby days of the year: Walk to the Hill. At this event hundreds of attorneys converge on the State House to demonstrate their support for civil legal aid. The event kicks off with speeches from Chief Justice Ralph Gants, President of the BBA Mark Smith, President of the MBA Chris Sullivan, and a client who benefited from legal services, and concludes with the attorneys heading out to speak with their own state senators and representatives. We hope to see you all at the State House on January 25 at 11am for this important event, and we strongly encourage you to stick around for the meetings with lawmakers. Rallying at Walk to the Hill and meeting with legislators immediately afterward offer the best opportunity for BBA members and the legal community as a whole to convince the Legislature of the importance of civil legal aid.

If you don’t know your legislators, you can look them up here, and if you’re not sure what to say, refer to these handy talking points or listen to our Issue Spot Podcast on How to Talk to Your Legislators. If you’d like a quick refresher day-of, join us here at the BBA at 9:30am for our Annual Pre-Walk Breakfast, where we’ll review the budget ask and key talking points.

As our budget advocacy gets underway, there will be plenty of opportunities beyond Walk to the Hill for you to join us in advocating for our priorities, which will help to ensure access to justice for all residents of the Commonwealth and an efficient and effective judicial system. Watch for e-alerts coming your way, asking you to reach out (again) to your elected officials at key points in the process during budget season! In the meantime, you can learn about the state budget process by listening to this podcast focused on civil legal aid in particular, and about the federal budget and budget advocacy at that level from our Federal Budget Process 101 podcast.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Joins Freedom for All MA to Protect Transgender Antidiscrimination Law

In their last meeting of the year, the BBA Council reaffirmed their support for transgender equality and voted to join the Freedom for All MA Coalition to protect An Act Relative to Transgender Antidiscrimination from repeal in November 2018. Keep reading to learn more about the BBA’s long history in support of these protections, how the law made it to the ballot, and what you can do to ensure this important law remains on the books.

In 2007, the BBA Labor and Employment Section brought a request to Council to support H.1722, an Act Relative to Gender Based Discrimination and Hate Crimes, which would clarify that gender identity and gender expression were protected in existing anti-discrimination and hate crime laws. This proposed law included protections in employment, housing, credit, higher education, as well as public accommodations. After endorsing the bill, the BBA worked with the Massachusetts Transgender Political Coalition to advocate for these anti-discrimination protections. We presented oral testimony at legislative committee hearings, and you can read our written testimony here.

As this testimony provides, antidiscrimination protections are necessary for ensuring access to justice for all, a key part of the BBA’s Mission. Transgender individuals need these specific protections because they suffer pervasive discrimination and disproportionately high levels of crime. As an association of more than 12,000 legal professionals, the BBA also knows that diversity in the profession, as well as in our society at large, is vital. These laws are necessary to ensure that no one faces discrimination or violence based on their gender identity.

We continued this advocacy until a law was eventually passed in 2011. When that law, An Act Relative to Gender Identity, was adopted, we applauded the governor and the Legislature for finally taking this important step. The final version, however, differed from the proposed 2007 bill in one major respect: protections were extended to employment, housing, credit, and higher education but not public accommodations—meaning public places like retail stores and malls, restaurants, hotels, public parks, theatres, public transportation, and medical offices. Advocates continued to fight for the inclusion of public accommodations until 2016, when An Act Relative to Transgender Anti-Discrimination was passed and protections were extended to these spaces. Upon enactment of this law, we again issued a statement in support, providing:

“Discrimination against individuals who are gender non-conforming is both dehumanizing and inconsistent with the bedrock principle of justice for all. We applaud Governor Baker and the Legislature for placing Massachusetts alongside 17 other states and the District of Columbia in taking this important step forward.”

Following this, we continued to track the law’s implementation, and last spring hosted a program that discussed what it meant and how it was working thus far. Check out our podcast on that program here.

There having been no reports of issues with enactment of the Massachusetts law (and no issues in the various jurisdictions, like Boston, who have had these same local protections for over a decade), this begs the question, how did the law end up on the ballot?

Following its enactment in 2016, opponents of the public accommodations protections began a ballot initiative to pursue repeal of the law. This group, called Keep MA Safe, has based their opposition to the law on the familiar, fear-based “bathroom bill” rhetoric that was used to oppose the laws in 2011 and 2016. By gathering the requisite number of signatures, only 1.5% of the total vote cast for Governor at the last state election, Keep MA Safe managed to ensure that repeal of the 2016 law appears on the November 2018 ballot as a veto referendum. At the polls, voters will be asked whether they approve of the law, and a “Yes” vote will safeguard the public accommodations protections for transgender individuals.

The BBA is proud to join the Freedom for All MA Coalition in ensuring these crucial protections remain law. According to President Mark Smith:

 “It is my hope that, in concert with the Freedom for All Massachusetts coalition, we can prevent this important civil rights victory from being reversed.”

This Coalition is working hard to gather broad support to counter the fear-based narratives being put forth by opponents of the law and educate voters on both the experiences of harassment and discrimination faced all-too-often by transgender individuals and the benefit of having such a law on the books. Already, the coalition is made up of a large and diverse network of individuals and entities, including big businesses, advocacy organizations, educational institutions, public officials, law enforcement officers, religious leaders, and industry associations. This includes large employers like Google, GE, Facebook, Ropes & Gray, and LPL Financial; public officials and entities like Mayor Marty Walsh, the Major City Chiefs of Police, the Chiefs of Police Association, the Greater Boston Chamber of Commerce, and the Boston Public Library; advocacy organizations like the ACLU, GLAD, the Human Rights Campaign, and the YWCA; as well as bar associations like the Women’s Bar and the Mass LGBTQ Bar. If your company, bar association, or entity has not yet added their name to this Coalition, you can find more information on how to do so here.

You can expect regular updates on this campaign and some important opportunities to join the BBA in its work to protect these antidiscrimination protections going forward, so stay tuned! In the meantime, you can sign the Freedom for All MA Pledge to defend transgender equality in Massachusetts.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Government Relations Year in Review

As we begin to turn our attention to 2018, we wanted to spend a moment to recap our past year in the Government Relations Department.

Our annual survey of our Issue Spot posts reveals our priorities over the past year, and it will come as no surprise to learn that Criminal Justice Reform and Access to Justice were two key focal points. We also offered regular updates on our budget priorities, legislative advocacy, news from the courts, and comment submissions, with the remainder of the posts focusing on various notable events and speakers.

Criminal Justice Reform

It’s been a big year for criminal justice reform here at the BBA, and for the Commonwealth as a whole. A couple of decades since the last comprehensive set of reforms, the Legislature is posed to pass sweeping changes, and we’ve been right in the mix with the release of our own report and recommendations for necessary reforms.

February 23: Let the Criminal-Justice Reform Debate Begin. The year kicked off with the long-anticipated release of the Council of State Governments’ Justice Center (CSG) report and recommendations, following 18 months of CSG review and analysis. In an effort to achieve consensus, the recommendations focused largely on recidivism reduction and improvements in re-entry efforts, leaving many issues unaddressed, especially on the so-called front end of the system (e.g., diversion programs, cash bail, and sentencing,).

June 29: Criminal-Justice Reform Inches Forward. Over the summer, the Joint Committee on the Judiciary held two heavily-attended public hearings on the CSG legislation as well as over 150 other criminal justice bills on items like criminal procedure, sentencing, prison programs, and related issues. BBA Treasurer Martin Murphy of Foley Hoag testified on our behalf, focusing on our long-standing opposition to mandatory minimum sentences.

October 05: New BBA Report Recommends Comprehensive Criminal Justice Reform. As the CSG group prepared release of its report, then-BBA President Carol Starkey of Conn Kavanaugh appointed a BBA working group to review and analyze the CSG work and consider further reforms necessary for improving the criminal justice system in Massachusetts. Led by former BBA President Kathy Weinman of Hogan Lovells LLP and BBA Treasurer Martin Murphy, the Working Group released its report and recommendation, entitled “No Time to Wait: Recommendations for a Fair and Effective Criminal Justice System.” This report, which calls for broader reforms than that recommended in the CSG proposal, outlined six key ways to make the criminal justice system here in the Commonwealth fairer and more cost-efficient.

November – December. As the year wrapped up, both the House and the Senate passed criminal justice reform legislation that would offer significant changes to our system. We offered updates at each of the key steps:

While neither of the bills in conference would implement all of the recommendations of the BBA Report, they would take significant steps toward reaching the goals outlined in the six areas addressed in the Report, and we will continue to advocate our positions to the conferees and keep you updated as the debate continues!

Access to Justice

As a key part of the BBA’s mission, 2017 was also filled with many access to justice-related updates.

January 12: Walk to the Hill 2017: Rallying for Civil Legal Aid. Every year kicks off with one of the largest access to justice events in the state, and one of the largest lobby days at the State House, and 2017 was no different. Here, we previewed the January 26 Walk to the Hill event…

February 2: Walking for Justice … And here, we recapped the event, where around 700 lawyers gathered in the Great Hall to hear from then-BBA president Carol Starkey, the MBA President, and SJC Chief Justice Ralph Gants on the importance of civil legal aid funding, before heading out to speak to their own legislators.

May 3: BBA at ABA Day 2017. While much of our government relations focus remains at the local and state level, every April, BBA leadership heads to D.C., alongside bar leaders from across the country, to advocate for federal funding for civil legal aid and other important issue areas. Last year, in addition to calling for adequate funding for the Legal Services Corporation, then-BBA President Carol Starkey and current-BBA President Mark Smith also discussed access to justice for homeless veterans on their congressional delegation visits. The 2017 ABA Day felt especially close to home, as Representative Joe Kennedy received the ABA Justice Award for his work on civil legal aid, upon nomination by the BBA and MBA.

July 27: BBA Council Endorses Two Access to Justice-Focused Policy Items. The July BBA Council took on an access to justice theme with the consideration of ABA Resolution 115 and a set of comments from the Civil Rights and Civil Liberties Section. The Council voted to endorse the Resolution, which called for the provision of counsel in federal immigration proceedings, by the federal government, and unless and until then by all levels of government, with a priority given to those individuals in removal proceedings who are detained. The set of comments related to the proposed change from print reports of appellate decisions to electronic reports only, and presented key access to justice considerations that must be made when making this switch, as requested by the Court’s comment solicitation.

October 12: Third Access to Justice Commission Reconvenes. The Third Access to Justice Commission held its first meeting of the year in October, celebrating key victories of the past year like the statewide expansion of Housing Court—approved by the Legislature after years of efforts by a coalition led by the Massachusetts Law Reform Institute and including the BBA—and previewing some key initiatives in the coming year, including the Justice for All Project, the Greater Boston Immigrant Defense Fund, the Office for Victim Assistance Grant to the Massachusetts Legal Assistance Corporation (MLAC).

October 19: A2J Update: Legal Services Corporation comes to Cambridge; Equal Justice Coalition Previews 2019 Budget Campaign for BBA Council. In what proved to be an access to justice-focused October, the Legal Services Corporation (LSC), the federal funder of legal services programs, came to Massachusetts for its Quarterly Board Meeting. The Meeting consisted of a Forum with a number of panels on topics like “Natural Disasters, Legal Aid, and the Justice System” and “The Importance of Access to Justice to American Business.” Following the forum, BBA President-Elect Jonathan Albano was invited to speak at the Pro Bono Awards Reception honoring attorneys who have devoted significant time and energy to pursuing projects at LSC-funded legal aid organizations. That same month, the Chair of the Equal Justice Coalition (EJC) Louis Tompros of WilmerHale and Director of the EJC Laura Booth visited Council to forecast the FY19 civil legal aid budget campaign and thank the BBA for our continuing work in support.

December 14: Walk to the Hill with the BBA. As 2017 began with a focus on civil legal aid and Walk to the Hill, so it wrapped up, as we previewed the 2018 event in one of our last Issue Spots of the year.

Budget Advocacy

We also, as usual, continued to advocate for our key priorities in the budget. In addition to adequate funding for civil legal aid and the MLAC line-item, we also successfully advocated for funding and authorizing language for statewide expansion of the Housing Court, and renewed our call for adequate funding for the Trial Court Department and the Committee for Public Counsel Services (CPCS).

February 16: Initial Read on the FY18 Budget

March 30: BBA Budget Advocacy for FY18

April 13: BBA Budget Update: House Ways and Means Proposes FY18 Budget

June 1: Budget Update: Senate Approves FY18 Budget

July 13: Budget Update: Conference Committee Submits FY18 Budget to Governor

By way of reminder, the FY18 Budget provided an $18 million appropriation (level-funding from FY17) for the MLAC line-item, $642.6 million for the Trial Court Department, and around $59 million for CPCS staff and operations, $98 million for CPCS private counsel compensation, and around $15 million for indigent court costs. The past few years have seen revenues fall consistently short of initial projections, creating on an on-going budget crunch, but the run-up to the current fiscal year was especially challenging, with the shortfall continuing to widen throughout the budget process, causing conference-committee members to take the drastic step of revising their appropriations downward on the fly. Early indications are that, while revenues remain constrained, the outlook for the coming FY19 (starting July 1) is not quite so dark.

In a major budget victory, after more than four years of advocacy, the FY18 budget included both funding and authorizing language for statewide expansion of the Housing Court. The Housing Court Department has begun this expansion, and you can expect more updates for us on this rollout into 2018.

State House Updates

In addition to our budget advocacy and push for criminal justice reforms, we continued to advocate for our past positions, like support of a ban on conversion therapy practices on minors, and added a few new ones, like support for Massachusetts adoption of the Revised Uniform Fiduciary Access to Digital Assets Act language. Here’s a recap of these and other legislative updates:

February 8: State House Forecast for Civil Rights and Civil Liberties

March 23: What Will Become of Your Digital Assets?

April 6: News from the State House: Educating Beacon Hill at a Public Hearing and a Legislative Briefing

May 11: RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

May 18: BBA Testimony at Judiciary Committee Hearings

June 8: BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

News from the Courts

We used a number of Issue Spot posts to update key case and court developments. One of the biggest stories of the year was the highly-anticipated “Bridgeman II” decision that stemmed from Hinton Drug Lab Scandal and the misconduct of chemist Annie Dookhan. You’ll recall that the BBA filed an amicus brief, drafted by then-Amicus Committee co-chairs Elizabeth Ritvo of Brown Rudnick LLP and Anthony Scibelli of Barclay Damon LLP in the case, calling for a global remedy, or the dismissal of all drug charges tainted by the misconduct. While the court did not adopt the global remedy approach, the decision placed the burden on the DAs and not the individual defendants to correct the misconduct and produced a similar result, with the eventual dismissal by prosecutors of over 20,000 convictions.

January 26: SJC Takes a Big Step Toward Closure in the Years-Long Annie Dookhan Drama

March 2: Chief Justice Gants Addresses the BBA Council

March 16: Recent Developments in the Law on Jurors

April 20: SJC Update: Dookhan Conviction Dismissals and ICE Detainer Oral Arguments

September 27: SJC Update: Court Narrows Felony-Murder Rule

October 2:  ICE Conducts Raids in Massachusetts, Points to SJC decision

October 30: Chief Justice Ralph Gants Delivers the State of the Judiciary

Comments

Many of our posts also focused on the hard work of our sections in submitting comments on proposed new rules and amendments to existing rules:

March 9: Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

August 10: Comment Round-Up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

October 26: BBA Committees Offer Comment on Proposed Amendments to SJC Rules on Clerk Magistrates and a Proposed Probate and Family Court Uniform Practice

December 7: Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

Miscellaneous Posts

Finally, we took the time at various points throughout the year to recap key speakers, dates and events:

January 19: AG Healey Spells our Priorities at Council

March 27: Issue Spot Podcast Episode 5: Gender Identity and Public Accommodations in Massachusetts

April 27: BBA Council Hears from the Governor’s Chief Legal Counsel

May 25: BBA Law Day Dinner: Celebrating the Leaders Who Shape and Protect the Rule of Law

August 24: ABA Annual Meeting Recap

September 7: Welcome to the 2017 – 2018 Program Year

September 14: DACA Update: BBA Hosts Panel Discussing Implications of Program Discontinuation

September 28: BBA Annual Meeting Preview

We look forward to continuing to keep you up to speed on our work, and we hope that you’ll keep reading. Happy New Year!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Walk to the Hill with the BBA

Each year the Equal Justice Coalition brings together hundreds of attorneys to participate in one of the largest lobby days at the Massachusetts State House with the aim to protect state funding for programs that provide civil legal aid to low-income Massachusetts residents. Lawyers form teams and head to the State House to hear from various leaders in the legal community and speak to their own state Senators and Representatives on the crucial need to adequately fund the line-item for the Massachusetts Legal Assistance Corporation, the largest source of funding for the State’s network of legal aid providers.

For a full rundown of just how important this effort is, read up on the work of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts, check out reporting on last year’s efforts, and review the FY19 budget request.

To join this effort, you’re invited to join the Boston Bar Association’s Team as we walk to the State House together to advocate for the FY 19 budget request. We’ll meet for breakfast at the BBA to hear tips for talking with your legislators from our Director of Government Relations.

If you’d like to join the BBA’s Team and attend the breakfast, register here.

To check if your firm or organization has a team, the full list of registered teams is posted here.

If you have questions about Walk to the Hill, please contact Alexa Daniel at adaniel@bostonbar.org for more details.

Criminal Justice Conference Committee Formed

Last week, leaders of the Massachusetts Senate and House of Representatives named the six conferees who will be tasked with working out differences between the two chambers’ respective omnibus bills on criminal-justice reform.  The Senate passed its legislation, S. 2200, in October, and the House followed suit last month with H. 4011 and H. 4012.  Senator Will Brownsberger and Representative Claire Cronin—co-chairs of the legislative Judiciary Committee, which initially worked on the issue—will lead the panel, joined by Senator Cynthia Stone Creem, Senate Minority Leader Bruce Tarr, House Majority Leader Ronald Mariano, and Representative Sheila Harrington.

Each house’s bill would bring sweeping changes to the Commonwealth’s criminal-justice system, of the kind not seen for decades.  Certain mandatory minimum sentences would be repealed, pre-trial diversion programs would be expanded, the burden of fines and fees on poor offenders would be somewhat eased, and meaningful reforms would be made to the bail system and to the laws on public access to individuals’ criminal records.  These are just a handful of the topics covered by these comprehensive bills, but all of these areas were addressed in the BBA’s recent report, No Time to Wait.

Although neither bill would implement all the recommendations of our report, they would make progress toward those goals, and we will continue to advocate our positions to the conferees.  There is no formal deadline for the conference committee to release a final bill, but the formal legislative session must conclude by July 31.  (You can get more background on all this here.)

—Michael Avitzur
Government Relations Director
Boston Bar Association

Comments Update: BBA Committees Provide Comments on Proposed District Court Protocol and Trial Court Rule Amendments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Steering Committees, who offer insights from the viewpoint of a particular practice area. Last month, we submitted comments on behalf of the Ethics Committee and the Steering Committees of the Business and Commercial Litigation Section and Criminal Law Section on a proposed amendment to a Trial Court rule and a proposed District Court Standing Order.

Proposed Amendments to Trial Court Rule XIV

In October, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records. You may recall that in 2016, the BBA spent a great deal of time thinking about Trial Court Rule XIV and even established a working group on the matter that, along with various sections, submitted substantial comments on the then-proposed rule. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was only given provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected proposed revisions to this Section, and proposed a few key changes, namely:

  • The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
  • The addition of safeguards, specifically “Terms of Use,” that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics Committee, Criminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees did not have much issue with the substance of the rule itself, and instead highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by noting that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that “[o]ne may not use the Attorney Portal to access information in a manner that risks the integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The Criminal Law Section Steering Committee also noted a point of ambiguity in the Terms, with some members thinking the provision that provides “you must not leave your computer or work area unsecured while you are logged into the Attorney Portal,” was somewhat unclear, difficult to enforce, and duplicative, since the terms already note that one is fully responsible for activity that occurs under one’s login credentials. The Steering Committee also raised a point about the Rule itself, which provides that the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.)

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the Rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the Terms, they thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). They proposed a definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. Finally, the committee members felt that the fourth bullet in the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials, even if not permitted (as it currently states “or persons you allow to use your login credentials”), as the prior bullet already states that one is fully responsible for all activity that occurs under one’s login credentials.

District Court Standing Order on Voir Dire Protocol

The Steering Committees of the Criminal Law Section also offered comments on the Proposed District Court Standing Order on Voir Dire Protocol, following an invitation to comment from the Chief Justice of the District Court Paul Dawley. As provided in the invitation to comment, the “new order establishes a standard procedure for jury selection in each civil and criminal case while permitting attorneys and self-represented parties a fair opportunity to participate in voir dire so as to identify inappropriate bias.”

First, committee members commended the District Court for creating the standing order and expressed hope that it would encourage more attorneys to utilize voir dire in the court. Members also found the order to be overall reasonable and helpful, with one individual specifically noting that the explanation and details offered on what questioning is, and is not, appropriate, is especially useful for practitioners.

Committee members also, however, raised a few questions about certain aspects of the rule. For example, some were worried that the order was perhaps overly inflexible. Though the level of detail was noted as very helpful, some felt the requirements were somewhat too involved, and instead, a bit more flexibility should be built into the voir dire process, depending on the nature of the case and the requests of the parties. Some felt the order favored panel voir dire but noted there were instances where individual voir dire made more sense, highlighting the use of panel and individual voir dire in Superior Court that was working well.

In addition, some members also felt the requirement that all voir dire-related requests in criminal cases be filed not later than five business days before trial may not be reasonable in practice. These members noted that the reality of practice in the District Courts is that judges usually do not deal with any trial motions until the morning the case is called, because typically there will many cases called for trial each day. As a result, members felt there was no real likelihood that a judge would address the voir dire with the parties some days before a trial, so instead, simply requiring formal requests to be made by the date of trial would be more reasonable for both attorneys and judges. Some members felt adding a check-off indicating if the parties will be seeking attorney-conducted voir dire to the Pretrial Conference Form would be sufficient and more practical.

Finally, members of the Steering Committee expressed hope that the Boston Municipal Court Department would also soon be instituting rules for attorney-conducted voir dire, and that any such rules would parallel the District Court’s protocol in order to reduce confusion and ease the use of voir dire for attorneys.

A special thanks goes to Co-Chair of the Criminal Law Section Steering Committee, Dean Mazzone, of the Attorney General’s Office, for presenting these comments to the BBA Executive Committee last week! A usual, we’ll be sure to keep you posted when final versions of the proposed amendments to Trial Court Rule XIV and the Voir Dire Standing Order are promulgated.

SJC Approves Amendments to SJC Rule 3:07

Speaking of which, the SJC just approved amendments to the Mass Rules of Professional Conduct Rule 3.5 on post-verdict juror contact, which the Criminal Law Section Steering Committee offered comments on in April. Read more about the BBA’s work on the issue here.

The proposed amendments to Rule 3.5 were meant to conform the rule to the SJC’s 2016 decision in Commonwealth v. Moore, 474 Mass. 541 (2016). In that case, the court held that Mass. R. Prof. C. 3.5(C), adopted in 2015, effectively overruled the rule established by Commonwealth v. Fidler that required attorneys to seek leave of court prior to contacting jurors post-verdict, and to do so only under court supervision and direction. In Moore, the Court also held that common-law principles limiting post-verdict inquiry of jurors to matters relating to extraneous influences and prohibiting inquiry into the individual or collective thought processes of jurors, the reasons for their decision, or the substance of their deliberations, remain as continuing precedent, and that though any attorney is entitled to initiate contact with jurors on permissible subjects without seeking leave of the court, they must adhere to the notice requirements established by the court.

The amended rule now includes the provision that “a lawyer shall not…(c)communicate with a juror or prospective juror after discharge of the jury if:…(4) the communication is initiated without the notice required by law.” In addition to the addition of Rule 3.5(c)(4), the adopted amendment also replaces current comment 3 and adds a comment 3A and 3B. These comments offer more guidance as to when post-verdict juror contact is, and is not, allowed and outlines the specific notice requirements that must be followed when an attorney does wish to initiate contact on a permissible topic.

We are thankful to our members who take the time to review and respond to these comment opportunities and look forward to continuing to be active participants in the comment process in 2018!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

MA Legislature Advances Criminal Justice Legislation

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

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

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

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

—Michael Avitzur
Government Relations Director
Boston Bar Association