Near Final State Budget and Innovation in Civil Legal Aid Advocacy

We are pleased to start with some great news.  The FY2016 budget appears to be just about settled as the House and Senate are voting on their Legislative overrides to the Governor’s proposed vetoes (read more about the budget process and all our budget priorities here), and both houses agreed to restore vetoed funding for Prisoner’s Legal Services ($190,504), the Housing Court ($235,527), and the Land Court ($291,470).  All three provide essential services to people in Massachusetts.  At the time of writing, the House had also voted 143-11 to override the Governor’s veto of $3.7 million from the Trial Court’s administrative staffing budget.  We hope the Senate will do the same.

The Land Court Department has statewide jurisdiction over the registration of title to real property and foreclosure and redemption of real estate tax liens.  It also shares jurisdiction over matters arising out of local planning and zoning board decisions.  The Housing Court Department has jurisdiction over civil and criminal actions, including equitable relief, which involve the health, safety, or welfare of the occupants or owners of residential housing.  It hears summary process (eviction) cases, small claims cases, and civil actions involving personal injury, property damage, breach of contract, discrimination, and other housing related claims.  It also hears residential housing code enforcement actions.  We are currently advocating for the statewide expansion of Housing Court jurisdiction, as it now covers less than 70% of the state population.  This can be accomplished through the enactment of S901/H1656, and we hope restoration of this funding demonstrates the value the Legislature sees in Housing Court, and represents a first step towards passage of these expansion bills.

Thank you to all our members who responded to our social media action alert for Prisoner’s Legal Services (PLS)!  PLS provides legal assistance to incarcerated individuals and promotes the safe, humane, and lawful treatment of Massachusetts prisoners through civil rights litigation, administrative advocacy, client counseling, and policy outreach.  It receives well over 2,000 requests for advice or assistance each year and is one of the only organizations of its kind in the state, working to assure prisoner’s rights are upheld – that they get the medical attention they need, their confinement conditions are constitutional, and they are safe from assault.  PLS’s vital legal aid also safeguards prison staff, protects public health, and eases the burden on our courts.

Throughout the budget veto and override process, the additional $2 million received by Massachusetts Legal Assistance Corporation (MLAC), which funds civil legal aid programs across the state, remained untouched.  This substantial increase will help MLAC expand its important work and brings its total funding for FY2016 to $17 million, representing a 15% year-over-year increase, when the overall budget increased by only 3%.  This percentage increase demonstrates a clear commitment from the Legislature and Governor to support civil legal aid while also running a more efficient Commonwealth, thanks to the cost savings provided by civil legal aid as demonstrated in our Investing in Justice task force report.

Even as the FY2016 budget cycle comes to an end, our work never stops.  It is precisely this summer “down time” when we need to redouble our efforts and find new ways to spread our message on civil legal aid.  The need for legal aid is ever increasing, and we constantly see new stories highlighting the need for increased funding for legal services agencies and underscoring the value of the assistance they provide.

With this in mind, we are pleased to report on an innovative new way the private bar is becoming involved.  The idea is law firm breakfasts throughout the year, featuring presentations by members of the Equal Justice Coalition (EJC) and MLAC on civil legal aid and advocacy.  It is based, at least in part, on the model started at Nutter McClennen & Fish, which holds a breakfast for the entire firm around the time of Walk to the Hill, the annual lobbying event for civil legal aid, to promote the Walk and explain the importance of lawyers advocating for civil legal aid funding.

The breakfasts are being arranged by the EJC with the help of its private bar liaison, Louis Tompros of Wilmer Hale.  After a successful start at his home firm, the group recently paid a morning visit to Holland & Knight, where Ben Stern was host and past BBA President J.D. Smeallie presented to a full boardroom on the findings of the BBA Statewide Task Force on Civil Legal Aid, which he chaired.  The breakfast also included presentations by MLAC Executive Director Lonnie Powers, EJC Chair John Carroll, of Meehan, Boyle, Black & Bogdanow, and EJC Director Deb Silva.

The speakers talked about the history of legal aid and its funding, the importance of legal services, the budget process, tips for advocacy, and the key role played law firm attorneys, who, as Louis explained,  understand the issues and have the means to do something about it.  The presenters stressed the importance of not only being an engaged voter but also contacting legislators to inform them that their constituents care about legal aid.  Just this small act can go a long way and make a major difference.

Thank you to everyone who helped us advocate for our budget priorities in this budget cycle.  We will continue to keep you updated, and hope that you’ll be ready to answer the call again when the FY2017 budget process begins in January.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Justice Scott Kafker Confirmed as Chief Justice of the Massachusetts Appeals Court

On Wednesday, July 22, by a 7-1 vote, the Governor’s Council confirmed sitting Associate Justice Scott Kafker to be the next Chief Justice of the Massachusetts Appeals Court.  Justice Kafker succeeds Appeals Court Chief Justice Philip Rapoza, who retired from the bench on June 30. As Chief Justice, Kafker will oversee the 20 other Appeals Court judges and–as he put it—work as “the daily guardian” of the Commonwealth.

This marks the first judicial appointment by Governor Charlie Baker, whose administration was applauded by the Council before the vote for putting forward such an “outstanding nominee right out of the box.” Councilor Terrence Kennedy remarked that “if they’re all like that, we’re going to have an easy ride the next four years.”  It is also is the first judicial appointment to have come through the recently-reconstituted Judicial Nominating Commission (JNC), chaired by BBA past-president Paul Dacier.  The JNC played an integral part in reviewing the candidate and is equally deserving of praise for its role in this process.

Who Is Justice Kafker?

First appointed to the Appeals Court in March of 2001, Justice Kafker has heard almost 2,700 cases and written opinions in nearly 900.  Prior to joining the Appeals Court, he served as chief legal counsel for the Massachusetts Port Authority (Massport) and deputy chief legal counsel to Governor William F. Weld.  During his time in the Weld Administration, Kafker served alongside Charlie Baker and current SJC Justice Robert Cordy.

A graduate from Amherst College and the University of Chicago Law School, Kafker spent his first few years out of school as an associate at Boston’s Foley, Hoag & Eliot. He has taught at Boston College Law School, the National Judicial College, and serves on the SJC’s Advisory Committee on the Rules of Civil and Appellate Procedure.  Justice Kafker is a trustee of the Dana-Farber Cancer Institute and a member of the American Law Institute.

The Process of His Nomination and Confirmation

As you may recall, earlier this year we reviewed the procedure for the appointment of new judges and explained the first two crucial steps of the process: The screening of applicants for judicial office by the Judicial Nominating Commission and the review of successful candidates by the Joint Bar Committee (JBC). Once Chief Justice Rapoza announced his retirement plans in February, it was clear that finding a suitable replacement would be the first order of business for the JNC, and it was their work that led to Justice Kafker’s nomination by the Governor.

JNC diversity meeting

JNC staff meeting at the BBA on July 8 with affinity bar leaders on strategies to increase diversity of the bench

After his nomination, Justice Kafker was subjected to a final review by the Governor’s Council, which is an elected body consisting of 8 Councilors and the Lieutenant Governor. All judicial nominations are subject to review by the Council — the final step in this multi-layered selection process.

Last week, we attended Justice Kafker’s public confirmation hearing, with the Governor’s Council taking witness testimony in support and, from one individual, in opposition to Kafker’s nomination. They also heard from Justice Kafker himself and asked him questions that would better inform their vote.

governors council kafker

Justice Kafker sits facing the Governor’s Council

Testifying on Kafker’s behalf was a diverse and comprehensive list of witnesses.  Justice Cordy and Appeals Court Justice Elspeth Cypher—who have both worked extensively with Kafker in the past—spoke to Kafker’s professional qualifications, citing his extensive experience and background, his legal, managerial, and collaborative skills, as well as his calm and contemplative  temperament. Council members inquired about Kafker’s leadership qualities, his disciplinary ability, and his “non-trial lawyer” legal background. Amid an exchange of jokes from both sides, Cordy and Cypher made plain with utmost conviction their belief in the abilities of Justice Kafker.

Law clerk Brittany Williams and court officer John Harrison spoke to their positive experiences working for Judge Kafker. Williams described Kafker as a “first-rate supervisor, mentor, and judge” and further emphasized his collaborative and pragmatic nature. Court officer John Harrison began by stating that he didn’t realize Kafker was a judge because “he was a regular, nice person”— which was received humorously by the Council. Harrison also conveyed how all the employees like Justice Kafker because he treats them all with respect. Councilors noted how much they valued this testimony because it demonstrated Kafker’s civility and managerial abilities.

Striking a common theme, Dana-Farber’s general counsel Richard Bosky and Kafker’s longtime friend and law-school classmate David Abelman, further testified in support of Kafker’s collaborative skills. Bosky spoke to Kafker’s diligence in preparation for board meetings, his dedication, and the value of his advice. He also mentioned how Kafker made it his priority to diversify the board. Abelman added that Kafker is fair, passionate, and leads by example.

The only person to speak in opposition to the nomination was Patrick McCabe of the Fatherhood Coalition. While McCabe was quick to praise the justice’s legal writing ability, he raised questions about Kafker’s leadership ability based on child-custody decisions to which the Coalition has objected. McCabe expressed concern over the fact that judges—including Kafker—routinely grant sole custody to one parent without any explanation.

In his address to the Council, Justice Kafker stated that if he were confirmed, his mission would include speeding up the issuance of decisions, creating more specialized expertise for better collaboration, promoting diversity on staff, and pioneering a new system of technology in the courts for improved efficiency. Kafker described himself as responsive and respectful, saying he respects everyone from all branches of government and tries to treat everyone with dignity. The hearing was cordial and flowed smoothly, with little debate, and several Councilors declared their support for Justice Kafker.

The Governor’s Council reconvened yesterday to vote on Justice Kafker’s confirmation, with Lieutenant Governor Karyn Polito presiding. Polito, who takes part in the selection process and facilitate the Governor’s Council review, pledged that only the best candidates will come before the Governor’s Council, after Councilor Jennie Caissie offered congratulations to the Administration and all those involved in the process that produced the newly-sworn-in Chief Justice Kafker.  We echo this sentiment and are pleased to see the JNC’s hard work beginning to bear fruit.  We hope this is only the first of many strong appointments, and encourage everyone with any interest in a judgeship to apply, as the only way to assure we have great judges is to start off with great candidates.

– Jing Li
Summer Intern
Boston Bar Association

Breaking Down the SJC Ruling in BBA Amicus Case Wong v. Luu

On Tuesday the SJC released its decision in Wong v. Luu, and we were gratified by the results.  As you may recall, our Amicus Committee filed a brief in this case that played a major role in oral argument.  As it turned out, it played a role in the final holding, too.  Although our brief is not cited, the SJC held, as we had advocated, that the trial judge did not have power to assess nearly $240,000 in sanctions against an attorney for his alleged role in breaking up a potential settlement agreement.  The case helps to clarify the sanctioning power of judges going forward.

How We Got Here

We first learned about this case at the end of 2014, after the SJC granted direct appellate review and 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.  Our Amicus Committee, chaired by Mark Fleming of WilmerHale, reviewed this request and gathered feedback from the BBA’s LitigationCivil Rights and Civil Liberties, and Bankruptcy Law Sections and Ethics Committee, as well as the parties involved in the case.  They ultimately decided to recommend filing a brief, concluding that the case raised serious concerns regarding the practice of law.

The case arises from two orders issued by a Superior Court Justice for sanctions of $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based supermarkets.  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 – including some who were parties to the case and were already represented by counsel — 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 in order to compensate the other lawyers for their time after the breakdown of settlement discussions, explaining that the attorney had acted unreasonably, wasted court and attorney resources, delayed the administration of justice, 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.

Through the early part of 2015, the Amicus Committee worked with the BBA’s Executive Committee and Council and their chosen drafter, Debra Squires-Lee, Sherin & Lodgen, LLP, to finalize the BBA’s amicus brief.  We were excited about the final product, crafted by Debra with help from Sherin & Lodgen associate Jessica Gray Kelly, which, while taking no position on the underlying facts of the case, 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.  It further 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.

On March 3, 2015, the SJC heard oral argument in the case.  We hope you will watch the brief video, available here as it was clear that our brief played an integral part.  The brief is mentioned immediately, as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and at the 10:00 minute mark, when Justice Botsford asks the appellant’s attorney his opinion on our brief’s recommended standard for attorney sanctions.  Much of the discussion revolves around the brief’s main points, most notably at around the 6:00 minute mark, when Chief Justice Gants clarifies with the appellant’s attorney that even if the attorney’s actions at issue in the case were plainly in violation of a disciplinary rule and even if it was found that he was given an evidentiary hearing (two points of contention in the underlying case), that the Superior Court still did not have authority to sanction the attorney for his actions.

The SJC Decision

In an opinion authored by Chief Justice Ralph D. Gants, the SJC appeared to agree with some of our brief’s major points, most notably that the judge here abused his discretion by imposing the harsh sanctions and that the attorney’s conduct was more appropriately addressed by referral to the Board of Bar Overseers.

Although the Court rejected our argument that inherent sanctioning powers should be limited to cases where it finds “bad faith,” it adopted a similarly significant limitation – that sanctioning must be “necessary to preserve the court’s authority to accomplish justice” (Wong v. Luu, SJC-11789, p. 17) or “ensure the fair administration of justice” (20).  Expanding on this standard, the Court includes examples of sanction-worthy conduct including:

  • Failing to comply with an order of the court (18)
  • Undue delay in compliance (18)
  • Making knowingly false misrepresentations to the court, intentionally misleading the court, or knowingly concealing information that an attorney has a duty to provide to the court (19)
  • Engaging in conduct in the courtroom that interferes with a judge’s ability to manage the courtroom fairly, efficiently, and respectfully (20)

Analyzing the attorney’s conduct at issue here, the Court concluded that

“the fair administration of justice does not require the settlement of a case; although the parties are free to settle their case, their entitlement under law is to a trial, not to a settlement in lieu of a trial . . . the failure of settlement negotiations does not threaten a judge’s ability to ensure the fair administration of justice [and] the inherent powers of the court do not extend to claims that an attorney during settlement negotiations did not act honestly.” (22-25).

The case has already garnered national attention and we hope that the SJC’s leadership will help set sound precedent for courts in the Commonwealth and across the country.  We are proud to have been part of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Process Nearly Complete

This week, the Legislature’s Budget Conference Committee approved a final FY2016 budget and yesterday it was enacted in both the House and Senate.  Let’s take a look at where our items of interest ended up and how they got there:

Massachusetts Legal Assistance Corporation (MLAC) (Line Item 0321-1600)

We made a historic push for increased funding of this line item.  Following the release of our Investing in Justice task force report, we implemented an intensive and far-reaching educational campaign, which resulted in media coverage from national to local newspapers to radio and television coverage.  We also held meetings with over 50 public officials including state Executive Branch leaders, state and federal legislators, the Attorney General, and the Chief Justice of the Supreme Judicial Court.

We helped spread the word that 64% of qualified people seeking legal aid are turned away due to lack of resources.  That doesn’t even take into account those individuals who wait for hours on the phone with legal aid agencies and eventually give up because there simply is not enough staff to handle intakes, a number that may be as high as 50%.  We also were proud to share the accomplishments of the private bar, which operates in a public-private partnership with legal aid, donating immense amounts of time and money to the cause.

Finally, we discovered that up-front investments in legal aid will yield back-end savings from social welfare expenses.

  • For every $1 spent on legal aid in the area of eviction and foreclosure cases, the state can save $2.69, primarily on shelter costs
  • For every $1 spent on legal aid in the area of domestic violence, there is a $2 return, with $1 going to the state and $1 to the federal government in Medicare savings.
  • For every $1 spent on legal aid to provide federal benefits, the state will gain $5 in economic benefits to its citizens.

We are pleased to see that MLAC received $17 million in the Conference Committee budget, a $2 million (14%) increase over last year.  Thank you to everyone who responded to our many action alerts asking you to contact your Legislators to let them know the importance of funding legal aid.

Here is the final breakdown:

FY2015 Final: $15 million (before mid-year cut of 1.79%)


  • Request: $25 million
  • Governor’s Budget: $15 million
  • House Final: $17 million
  • Senate Final: $17.1 million
  • Conference Committee: $17 million

The BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts recommended a $30 million increase over three years, so our work in this area is certainly not done.  But in the context of an overall budget increase of 3.5% and a $1.8B budget gap that confronted the new Governor, this budget lays a good foundation.

Trial Court

The Trial Court budget includes 15 different line items funding the judges, staffs, and operation of all of its departments.  The Trial Court requested a maintenance budget of $642.6 million.  This is the amount it would take to continue operations as normal.  It also provided the Legislature with 16 budget modules, essentially enhancement initiatives and projects it could choose to fund in order to update and innovate the court system.  Some examples included funding to create more specialty courts, expand Housing Court statewide, and provide additional materials to self-represented litigants.

We were satisfied with the final funding amount of $631.5 million and grateful for legislative support.  Within that number there were some particularly bright spots including increases to specialty court funding and the courts’ HOPE/MORR intensive probation program. Unfortunately, statewide expansion of Housing Court jurisdiction did not make it into the final budget.  However, we still hope to accomplish this legislatively through bills H1656/S901.

This is how the funding breaks down:

FY2015 Final: $612 million (before mid-year cut of 1.79%)


  • Request: $642.6 million + modules
  • Governor’s Budget: $603 million
  • House Final: $622 million
  • Senate Final: $633 million
  • Conference Committee: $631.5 million

Committee for Public Counsel Services (CPCS) (Line Items: 0321-1500, 0321-1504, 0321-1510, 0321-1518)

CPCS’s budget is comprised of four line items that include compensation for its own attorneys as well as private counselors (bar advocates).  It was the subject of a recent MBA Task Force report, which made a convincing case that public defenders, bar advocates, and assistant district attorneys merit higher salaries, and a state commission unanimously agreed with that proposition.  The Globe has also run a number of articles on the issue of underpaid attorneys in these positions (see here and here).

It is important to note when understanding CPCS’s line item that the annual budget has historically underfunded CPCS, the theory being that since CPCS cannot predict with exact certainty how many cases it will have to serve, it is provided with an initial appropriation that is supplemented as the fiscal year progresses and its expenses become clearer.  The Legislature and Governor have consistently honored and funded these requests.  The FY16 budget does not propose any changes to the current CPCS service delivery system.

Here is the CPCS budget breakdown:

FY2015 Final: $168 million


  • Governor’s Budget: $186.7 million
  • House Final: $170.5 million
  • Senate Final: $173.6 million
  • Conference Committee: $170.6 million

Next Steps

The Governor now has a total of 10 days to review the budget (9 days left at the time of posting).  He can approve or veto the entire budget, veto or reduce specific line items, veto outside (i.e., non-monetary) sections, or submit changes as an amendment for legislative consideration.  Finally the Legislature has the chance to override any Governor’s veto with a 2/3 vote in each branch.  We hope the Governor will approve all of our line items of interest without change and we look forward to keeping you updated on the latest budget news.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Equality: Making Great Strides, but a Long Way to Go

Late last week, we were thrilled to see the U.S. Supreme Court following in Massachusetts’ footsteps, holding in Obergefell v. Hodges that the Fourteenth Amendment requires states to license marriages between two people of the same sex and to recognize same sex marriages lawfully performed in other states.  The BBA has long been a supporter of marriage equality.  We submitted an amicus brief along with the Massachusetts LGBTQ Bar Association in Goodridge v. Department of Public Health, the 2002 case that made Massachusetts the first state to legalize same-sex marriage.  Former SJC Chief Justice Margaret Marshall’s majority opinion contains many eloquent and powerful arguments that have been repeated around the country and most recently by the Supreme Court.  The BBA has since filed or signed onto a number of additional amicus briefs in support of marriage equality in the following cases:

However, even as we mark last week’s great step forward, we are reminded that society has a long way to go before we achieve total equality.  Even the Obergefell decision, which is certainly a milestone for marriage equality, doesn’t go so far as to clarify what level of scrutiny courts should apply to sexual orientation classifications.  The Supreme Court has historically applied varying levels of scrutiny to Constitutional law questions, including due process and equal protection cases.

  • The most basic level, rational basis, requires only that the government’s actions be rationally related to a legitimate governmental interest.
  • The next level, intermediate scrutiny, requires that the government’s actions be related to an important government interest, and is most well-known for its use in sex-based classifications.
  • Finally, strict scrutiny, which is applied when a fundamental right is at issue or when the government action applies to a suspect classification, requires a compelling governmental interest, that the law or policy be narrowly tailored to achieve that goal, and that it be the least restrictive means. Strict scrutiny is used for classifications such as race or national origin.

In our 2011 and 2013 amicus briefs cited above, we argued that strict scrutiny should apply to classifications based on sexual orientation.  While the Obergefell decision hints that strict scrutiny should apply, it does not actually go so far as to apply the test.

Massachusetts has long been a leader in legislating equality.  The Legislature enacted a broad anti-discrimination law in 1989, prohibiting sexual orientation discrimination in the areas of employment, housing, public accommodations, credit and services (this site has a very useful and concise breakdown of the law and its application).  Remarkably, more than 25 years later, residents in many other states still lack these protections.

Yet, even here in Massachusetts, some would argue there is plenty more we can do to assure fairness and equality.  As recently reported, Massachusetts still doesn’t treat same-sex couples the same as married couples.  For example, same-sex couples who are unmarried may have a harder time than their opposite-sex counterparts in getting legal recognition of joint parenthood.  They may also face legal discrimination from private insurance companies or be unable to enjoy the same family leave privileges as opposite-sex couples.  In addition, while the Massachusetts Legislature extended its anti-discrimination laws in 2012 by passing An Act Relative to Gender Identity, which prohibits discrimination based on gender identity, public accommodations were stripped from the bill’s coverage before it was enacted; we are now seeing a renewed push this session to expand the law’s protections.

In sum, we are proud of Massachusetts, for leading the way on marriage and we are excited that the U.S. Supreme Court took a major step forward in recognizing marriage equality as a right required under the Fourteenth Amendment.  However, we recognize that there is still a long way to go.  In the judiciary, we hope to see sexual orientation benefit from the heightened scrutiny standard it deserves.  In the Legislature, both nationally and in our own state, we look forward to laws that will help assure equality for all, regardless of their sexual orientation or gender identity.  Obergefell represents a great moment in history, but we hope it is only the beginning of a new era of equality.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Will This Be the Year? Hearing on Longstanding BBA Probate and Family Law Bills

The BBA’s Trusts and Estates and Family Law Sections have long been amongst the most involved with policy and thus it was fitting that representatives from both were in the State House to testify on long-time BBA bills of interest on Wednesday.  The Judiciary Committee held the first of two hearings on probate and family issues and we provided testimony on three of the fifty-one bills on the agenda.

H1291 – An Act making Corrections to the adopted children’s act

The BBA been worked on this issue both through litigation and legislation.  Bear with us, as the full explanation is a bit technical, but in simplest terms, the bill changes the law to align with the SJC ruling in Bird v. BNY Mellon, a case that restored a 1958 law regarding trusts.  Got it so far?  Here is the detailed explanation prepared with the invaluable help of Brad Bedingfield of Choate and Marc Bloostein of Ropes and Gray.

In 1958, the Legislature modernized the law to presume that adopted persons are included in terms like “child, “grandchild” and “issue” unless the instrument plainly states otherwise. But it made the new law applicable only to instruments executed after its effective date.  The old law, which presumed adopted persons to be excluded unless they were adopted by the testator or settlor himself or herself, continued to apply to pre-1958 instruments. For the next 50 years, families adapted to this presumption for older trusts, making compensating and often irrevocable arrangements for adopted descendants who were not beneficiaries of these old trusts.

However, in 2008, that all changed.  Chapter 524 of the Acts of 2008 (which became effective in 2010) reached back to pre-1958 trusts and reversed the legal presumption, providing simply that the 1958 rule of construction (presuming inclusion of adopted people) would now apply to all instruments whenever executed.  This shift came as a complete surprise to the trusts and estates bar, banks, and other professional trustees, who knew nothing about the law until after its enactment and likely would have strongly opposed this sudden and disruptive change.

The problem was that from 1958 to 2008, lawyers had counseled numerous clients about how to provide for adopted children who were not benefited by pre-1958 family trusts. In many cases where such trusts benefitted only biological descendants, parents and grandparents with both biological and adopted descendants adjusted their estate plans to compensate the adopted descendants who were not thought to be beneficiaries under the pre-1958 trusts.  These plans could not always be changed to account for the 2008 change, which undermined the reasonable expectations of those who had created estate plans in the preceding decades.  It also removed existing interests in trusts by bringing in adopted beneficiaries to share in the trust benefits, unexpectedly diluting the interests of the long-standing beneficiaries and resulting in a windfall for adopted beneficiaries, who effectively got double shares where families had made corrective estate plans.

In the 2012 Bird case, in which the BBA filed an amicus brief, after one aggrieved beneficiary of a pre-1958 trust filed suit, the SJC found the 2008 reversal of the old, pre-1958 presumption to be “not reasonable” in that case.  The SJC felt that the 2008 bill violated due process by taking away vested trust interests or other property rights without serving a sufficient public interest to outweigh that loss by trust beneficiaries.  However, while the Court indicated generally that its ruling presumably would apply to other situations, it did not rule on the constitutionality of the 2008 bill in all cases.  Consequently, the 2008 law is still on the books.  Our bill, H1291 would remove it, clarifying the law and assuring that estate plans are executed as designed.  To see our full written testimony, click here.

S746 – An Act relative to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

A BBA panel comprised of retired Probate and Family Court Judge Edward Ginsburg, Senior Partners for Justice, Family Law Section Co-Chair Theresa Ramos, Tracey & Associates, P.C., and Family Law Section Public Policy Committee Co-Chair, Gayle Stone-Turesky, Stone, Stone & Creem, gave riveting testimony on the need for this bill.

family law panel

Judge Ginsburg shared his illustrative experience in the 1998 case of Cricenti v. Weiland, which set the precedent for this bill.  The Judge presided over the custody claims of a Massachusetts divorce.  The mother had remarried and wanted to move to Nebraska with her children.  This was concerning to the children’s father, who asked Judge Ginsburg what would happen if the wife ignored a potential parenting agreement – would he have to go to Nebraska to litigate the case?  Judge Ginsburg assured him that was ludicrous, that Massachusetts would have continuing jurisdiction over the case, and that he would personally see to it that the mother and children would have to come to Massachusetts should there be any issues.  With this assurance, the father signed the agreement, permitting the mother to bring the children with her to Nebraska.

Seven months later, the mother went to a court in Nebraska and changed the terms of their parenting agreement.  The husband took action.  She was served in Nebraska and Judge Ginsburg was ready to find her in contempt.  However, the Court of Appeals had other ideas, holding that Massachusetts does not have exclusive continuing jurisdiction.  After a party leaves for six months, she is free to start over in another state and there is nothing Massachusetts can do about it.

Since then, the Judge has spent nearly twenty years trying to change the law.  Massachusetts is the only state left that has not adopted the UCCJEA, and thus is the only state that cedes jurisdiction to the home state of the custodial parents after six months of residency in the new state. This arrangement is extremely unfair to the “left behind” parent who is then forced to travel and litigate the issue in another state.  It also promotes forum shopping.

The purpose of the bill is to remedy these interstate conflicts.  Under the bill, once a state has exercised jurisdiction over custody, that state has exclusive jurisdiction over potential changes in the judgment or order, so long as the parent, the child, or someone acting as a parent remains in the original state.  This construction is very similar to the current laws regarding child support in all fifty states (including Massachusetts), which have an “exclusive jurisdiction” design.

The bill will lift a burden on litigants, who are more mobile in the modern world, and on the courts.  Although, under the bill, Massachusetts courts will maintain jurisdiction over some custody cases, they will avoid the contentious battles that currently arise in removal cases, where parents are fighting both to keep their children and to keep any future custody litigation close to home.

To read more about this bill, click here.

S748 – An Act relative to the elective share of surviving spouses

Some of you may remember this issue, as it too has been on the BBA’s agenda for some time.  It is another issue that doesn’t skimp on complexity.  Essentially, a spousal elective share is a potential remedy for a spouse left out of his or her significant other’s will.  Under current law, this disinherited spouse is generally entitled to claim at least one-third of the deceased spouse’s total estate.  The law ignores factors such as the duration of marriage, the age of the surviving partner, and the state of the economic partnership.

The spousal elective share bill changes the calculation used to determine the elective share.  Under the bill, the share is a sum of all the couple’s relevant assets, multiplied by a percentage based on the length of the marriage – ranging from three up to 100 percent with fifteen or more years of marriage – then dividing that total in half.  The bill reflects a similar economic theory to the one behind the equitable distribution system that is now applied when a marriage ends in divorce.

The BBA has been working on spousal elective share legislation since the 1990s.  At that time, the BBA and the Women’s Bar Association (WBA) composed one version of the bill, while the Massachusetts Bar Association (MBA) had another.  Over the next few years, these three groups worked together to draft a single consensus bill that the BBA Council first voted to endorse in 2007.  This bill has since been replaced by a new bill which is similar, though not identical, to the Uniform Probate Code’s spousal elective share provision.  The ad hoc Elective Share Committee explained their proposed amendments in a 2012 report, which was submitted to the Committee at Wednesday’s hearing.  The BBA’s Family Law Steering Committee and Trusts and Estates Section voted to support the latest version of the bill in November 2012 and the BBA Council again approved the bill in February 2013.  The MBA and WBA also support the bill and testified along with us on Wednesday.

spousal elective share panel

The panel consisted of:

They gave a great presentation, explaining not only the need for the bill and its complicated history, but also the technical aspects.

We also have another State House update: another BBA bill H3611 (formerly H1284), passed the House this week, following testimony by Real Estate Section Co-Chair Michael Fee, Pierce & Mandell P.C. at a May hearing.  The bill helps to protect consumers and other owners of improved real estate that violates zoning rules where a municipality has taken no enforcement action.  To learn more, read our testimony.  We will continue to track this bill as it moves through on the Senate side, and all the above discussed bills as they continue through the legislative process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Debating Public Access to Court Records

You may have heard recently that the Trial Court held a public forum to solicit input regarding online access to court records.  This week, we present the story behind that event.

Historically, attorneys, pro se litigants, members of the press, and public were all able to access court docket information online at by requesting a username and password from the courts.  However, with the installation of the new program, there have been some limitations on this access.  The program initially required a Board of Bar Overseers (BBO) number to log in, meaning it was accessible only by attorneys.  However, as of earlier this month, two Superior Court counties, Middlesex and Barnstable, made their dockets publicly available on the MassCourts website.  In all other counties, as of the time of this post, access is limited to attorneys only, though the Courts have stated that they intend to expand full access statewide eventually.  The current access situation has created concerns, especially amongst members of the media, who have alerted the public.  The group tasked with creating a rule to address such issues, the Trial Court Public Access to Court Records Committee (Committee), responded, after 19 months of meetings, by announcing a public hearing for June 15.

The Committee is composed of 22 members and includes representatives from the Trial Court and all of its departments, as well as the Supreme Judicial Court, Appeals Court, and Probation Services.  As a number of individuals pointed out at the hearing, the Committee does not include anyone from outside the courts, such as members of the public, media, or bar.

The purpose of the hearing was to receive the views of interested individuals and organizations with regard to issues surrounding the public’s access to court case records, including their online availability.  The Committee promises to then consider these concerns when drafting a rule governing records access.  The BBA is particularly concerned about the limits to records access, especially the impact they will have on pro se litigants.  We submitted a letter to the Committee, noting our concerns and our hope to be a part of the continuing review process once a rule has been drafted.

On June 15, we attended the Committee’s hearing.  Twenty-three individuals and panels provided testimony that encompassed a wide range of ideas and positions.  But the main arguments discussed can be divided into two general camps – those in favor of broad access and those in favor of limiting access in certain instances.  Both sides have legitimate concerns, meaning the Committee has a tough task ahead of them.

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Broad Access

Those in favor of broad access noted that Massachusetts historically permitted online access to court records, and expressed the hope that the new policy would not be limiting.  They explained that a lot of case information is currently available at courthouses, and many felt that anything available there should also be online.  They argued that this would help the courts by lifting the burden on staff to provide visitors with paper files.  It would also help to provide a uniform process, as many offered anecdotes of widely differing policies by county or courthouse on accessing files at the court.  In addition, other states and the federal PACER online system provide broader access to court records and documents than Massachusetts.

A number of witnesses justified this request by noting that the media and public can serve as a check on fraud and corruption, and that everyone, from attorneys to pro se litigants to the public, deserves equal treatment.  Broad accessibility, they argued, would help facilitate court procedures by helping people access their dockets and schedules and would also help members of the public and media gather, compile, and disseminate useful data and statistical reports on the functioning of the justice system.  They countered fears of unintended negative consequences for litigants by putting the burden on attorneys to redact information and impound documents that could have negative implications or contain private information.

Limited Access

Those favoring limited access to online court records focused largely on those negative consequences the public sharing of case information can have, particularly for tenants, victims of domestic violence, and anyone with a criminal record.  For example, some landlords are said to use the system to search for prospective tenants’ names.  Even if an individual has gone to court only to force a landlord to fix a broken heater, or was merely named in a case against a roommate, they may be unfairly denied a lease.

Victims of domestic violence may be less likely to come forward if they know that potentially embarrassing details of their cases will be available online.  And if they do seek the help of the courts, putting their information online could jeopardize the safety of them or their children.  They may also face discrimination, especially in housing or employment.  The same may be true for criminal offenders whose case information would otherwise be sealed thanks to the 2010 CORI reform efforts.  Even though their records may no longer be available through official channels, witnesses expressed concern that their cases would always be available online once posted.  Many other types of cases can include sensitive mental health or financial information or highly personal family information that can be damaging if available publicly, or lead to identity theft or commercial uses by data brokers.

As a result, many called for safeguards such as the use of initials in place of party names, a protocol to correct errors, and resources devoted to assuring accuracy.  They were hesitant to place the burden on lawyers to redact and impound information because of fears that pro se litigants would disproportionately bear the consequences of a failure to do so.

In sum, the hearing provided a great opportunity for many people to be heard and for the Committee to gather valuable feedback on the issue before them and their process.  We look forward to seeing the rule they draft, and to continuing to be part of this process.  We will keep you updated on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Amicus Committee Program Year in Review

With our 2014-15 program year coming to an end, we would like to take a moment to reflect on the extremely productive past ten months for Ethics and Amicus, the two committees overseen by the Government Relations Department.  Both groups are comprised of hard working and highly-regarded attorney volunteers.  Steve Kasten and Ellen Messing co-chair the Ethics Committee, and Mark Fleming chairs the Amicus Committee.

Amicus Committee

The BBA files amicus briefs primarily on issues related to the practice of law or the administration of justice and accepts requests for such submissions through our website, which also lays out the detailed policy requirements.  We have a strong history of providing briefs on important issues, ranging from protecting marriage equality to defending attorney client privilege, and our arguments are often cited during oral arguments and in final decisions.

The BBA’s Amicus Committee had a busy program year.  They signed onto one brief, drafted an original brief in another case, and closely reviewed numerous submissions that ultimately didn’t make the cut for a host of reasons.

The Amicus Committee’s first brief this year was In Re Guardianship of V.V..  In this case, the petitioner was a young woman who originally sought to vacate a guardianship decree that had given sole custody of her child to her own grandmother.   The mother represented herself during the Probate Court proceedings, while her grandmother had legal counsel.  The state was not involved in this strictly private proceeding.  The underlying case was rendered moot when the child was returned to the mother before appellate review.  However, the case went forward because of the significant legal questions it raised, and the SJC requested amicus briefs.

The BBA signed onto a brief authored by a team from the Massachusetts Law Reform Institute, Russell Engler of New England Law Boston (and our task force on civil legal aid), and a group of Nutter, McClennen & Fish lawyers, including former BBA President Mary Ryan.  We were joined on the brief by a host of legal and social organizations, including the MBA, WBA, Greater Boston Legal Services.  The brief argued for a right to counsel appointments for indigent parents in private guardianship proceedings and quoted extensively from three BBA task force and working group reports, including our recent Investing in Justice report on civil legal aid.

The brief argued that appointment of counsel in these cases is required under the due process and equal protection provisions of the Massachusetts Constitution.  It also made policy arguments that appointing counsel in these cases promotes a sound child welfare system and follows the national and state policies for counsel appointments generally.  In addition, the brief pointed out the incongruity that in essentially identical cases where the Department of Children and Families is a party, the right to counsel already exists for indigent parents, so it makes little sense that they should be denied counsel when facing a private party.

Following oral argument in January, the SJC took the position, as the amicus brief argued, that a right to counsel exists in these cases.  The full decision is available here.  We were pleased to be part of the brief that contained the argument that ultimately carried the day and pleased that the SJC took a stand promoting access to justice.

The Amicus Committee also drafted a brief in the case of Wong v. Luu.  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 sanctions of $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.

Several of these other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their 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 both 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, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, of Sherin and Lodgen LLP, to draft the BBA’s brief.  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.

While we are still waiting on a final decision from the SJC, it is clear that our brief played an important role in oral argument as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and later the 10:00 mark when Justice Botsford asks the appellant’s attorney his opinion on our brief’s recommended standard for attorney sanctions.  Much of the discussion revolves around the brief’s main points, most notably at around the 6:00 mark when Chief Justice Gants clarifies with the appellant’s attorney that even if the attorney’s actions at issue in the case were plainly in violation of a disciplinary rule and even if it was found that he was given an evidentiary hearing (two points of contention in the underlying case), the Superior Court still did not have standing to sanction the attorney for his actions.  Our brief and the appellant’s attorney argue that it does not.

We look forward to a final decision from the SJC and will keep you updated.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Ethics Committee Program Year in Review

The Ethics Committee took a leading role in two major court comment requests – the Massachusetts Rules of Professional Conduct and the Code of Judicial Conduct.  The revised rules of professional conduct are the culmination of months of consideration, revision, and even oral argument that began more than a year ago.  In July 2013, with the SJC’s permission, the SJC Standing Advisory Committee on the Rules of Professional Conduct (“SJC Committee”) published its proposed rules for comment.

Many of the proposed changes were based on the model rules proposed by the ABA Ethics 2000 Commission and the ABA Commission on Ethics 20/20.  The BBA’s Ethics Committee carefully reviewed the rules and composed six comments along with the BBA’s Bankruptcy Law Section, which were submitted to the SJC Committee in February 2014.  Following careful review of these and other comments, the SJC Committee submitted revised proposed rules to the Justices of the SJC on May 14, 2014.

In October, the SJC Justices announced their decisions regarding some rules and requested oral argument on certain issues for some others in December.  In late March, the SJC posted the revised MRPC online.  We were particularly pleased to see some revisions in line with the BBA’s comments.  Most notably, the BBA’s Ethics Committee encouraged adoption of Model Rule 3.5, lifting the old MRPC prohibition on all juror contact, even after the jury is discharged.  The new adopted rule follows this recommendation with significantly fewer limits on juror communication after discharge, barring contact only if the communication is prohibited by law or court order, the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.

Another notable rule change in keeping with recommendations from the BBA’s Ethics Committee was incorporation of the ABA Model Rule into MRPC 7.2, deleting the requirement to retain advertising materials.  The old MRPC required lawyers to keep a copy or recording of all advertisements for two years after its last dissemination.  In their meetings, the Ethics Committee discussed the anachronistic elements of the old rule, and the challenges facing lawyers and law firms with web sites and social-media platforms.  The definition of lawyer advertising materials is broad enough to include web and social media communications, making it almost impossible to accurately keep such records.  The new rule is less burdensome and easier to follow.

Finally, the new rules reflect the Ethics Committee’s recommendation to include the “catch-all” category in MRPC 8.4(h), which states that it is professional misconduct for a lawyer to “engage in any other conduct that adversely reflects on his or her fitness to practice law.”  The Standing Advisory Committee had proposed deleting that language.  While the Ethics Committee expressed concerns about the vagueness of this standard and the potential for its inconsistent application, Committee members were more troubled by the thought that egregious attorney conduct that was not a crime or fraud and not otherwise in violation of a provision in Rule 8.4 would therefore go undisciplined because it was not specifically included in the definition of professional misconduct.  Their comments also noted that the Committee was unaware of any reported abuse of this provision, and that the facts of reported cases under this provision merited discipline.

In late May, the Ethics Committee held its first CLE, breaking down these rules changes to a packed house in advance of the July 1 effective date.

The Ethics Committee also took a leading role in considering the proposed revised Code of Judicial Conduct.  Posted in late March, the SJC Committee to Study the Code of Judicial Conduct (SJC Committee) drafted a near complete overhaul on the rules governing judges’ conduct.  In late April, the BBA was treated to a comprehensive briefing on the revisions by Justice Cynthia Cohen, chair of the SJC Committee, SJC attorney Barbara Berenson, and SJC Committee and BBA Council member Lisa Goodheart.  Their in-depth explanation of the revisions paved the way for the BBA to provide meaningful comments.

The proposed revised code generally follows the organization and many of the provisions of the 2007 ABA Model Code.  This improves clarity, making the proposed revised code easier to follow and allows Massachusetts to consider interpretations already completed by other states when addressing any potential problems or loopholes.

The revised provisions are broken down into canons, rules, and comments.  Canons are overarching principles – the lens through which the code should be understood.  The most important is Canon 1, containing the so-called “three I’s” – “a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”  There are too many changes to name them all, but in general, the proposed revised code endorses judicial outreach and civic participation and recognizes many roles for judges, including working in specialty courts, assisting pro se litigants, acting as resources on court administration, and as liaisons to the bar and community.

In late May, the BBA, along with the Ethics Committee and the Delivery of Legal Services and Litigation Section Steering Committees, submitted comments to the Committee.  We are pleased to have taken part in this process and look forward to seeing the final revised Code and sharing it with you.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

What Caused the Crime Decline? (Hint: Not Mandatory Minimums)

As we’ve noted here previously, the BBA has a long-standing position opposing the imposition of mandatory minimum sentences.  This Tuesday, June 9th, we’ll have the opportunity to express that opposition to members of the Legislature’s Joint Committee on the Judiciary, as they hold a public hearing on a variety of bills dealing with mandatory minimums.

First, though, in the run-up to that hearing, an important event was held this past week at the State House that also relates to the issue.  The Criminal Justice Reform Coalition hosted a public forum to explore possible reasons behind the historic decrease in crime the nation has experienced over the past two decades, with rates of both property and violent crime roughly half what they were in 1990.

As you may know, this decrease has coincided with an equally-dramatic increase in the populations of our state and federal prisons and jails – up 61% in that same time-frame (though it has leveled off since the turn of the century).  It is tempting, perhaps even instinctive, to draw a straight line between the two – and indeed many have argued that by locking away more individuals, we have prevented them from committing crimes that would otherwise have taken place … case closed.  That may seem like a common-sense interpretation.  But the evidence strongly suggests otherwise.

At this week’s forum, Lauren-Brooke Eisen, Senior Counsel at the Brennan Center for Justice at New York University, presented findings from her empirical research demonstrating that increasing incarceration – a phenomenon driven to a great degree by mandatory minimums — long ago reached the point of diminishing returns.  The exhaustive paper she co-wrote on this topic, What Caused the Crime Decline, was published in February and shows that this incapacitation of potential future criminals accounts for a mere 5% of the drop in crime seen in the 1990’s, and accounts for none of the drop in the years since.

It turns out that as more and more people are incarcerated, each additional inmate is, on the whole, less and less likely to commit another crime in the future.  And in fact, putting him or her in jail – rather than using community corrections, probation, monitoring, and other alternatives – can actually increase the likelihood that the inmate will recidivate upon returning to society.  This is because incarceration (a) introduces an individual to more-hardened criminals; (b) presents roadblocks to successful re-integration; and (c) disrupts his or her family, personal, and professional lives – all while too often failing to treat underlying problems with substance abuse, mental health, or frequently both.

So if we didn’t solve – or at least greatly reduce – our crime problem of the late 20th century by jailing more people, then how did it happen?  Here the picture is a bit murkier.  Eisen and her team looked at 14 causes that have been theorized – ranging from the abatement of the crack epidemic to increased access to abortion services to decreased childhood exposure to environmental lead.  But in the end, they found that they could identify only four significant factors:

  • Changing demographics that result in a smaller share of the population within the prime cohort (15 to 30 years old) for engaging in criminal behavior.
  • Declining alcohol consumption.
  • Increasing household incomes and perhaps the concomitant reduction in unemployment levels.
  • New policing models (namely, use of data-analysis tools such as CompStat) along with a hike in the numbers of police.

Still, they determined that even these causes, taken together, could account for only about one-third of the drop in crime.  The reasons behind the remaining two-thirds remain unknown – perhaps to be the subject of further study.  The report concludes that considering the immense costs of mass incarceration, programs that improve economic opportunities, modernize policing practices, and expand treatment and rehabilitation programs, could all offer a better public safety investment.

Where does this leave us?  Well, with regard to mandatory minimums, this new paper certainly strengthens our case against them:  If they are not helping to reduce crime, then why are we removing discretion from the trial judge, whose job it is to determine the best sentence – both for the offender and for society – based on the unique circumstances of each case and each individual?  If they extract a fiscal, economic, and social toll by separating workers from jobs and parents from children (consider that 1 in 28 children in America have a mother or father who’s behind bars), then why are we insisting on longer sentences than defendants would otherwise receive — at a cost of upwards of $40,000 per year to house, clothe, feed, and care for them?

These are some of the questions the BBA, and others, will be raising at Tuesday’s Judiciary Committee hearing.  We hope this will be an important step on the path to sentencing reform during this legislative session, and we will continue to update you as it progresses.

— Michael Avitzur
Government Relations Director
Boston Bar Association