How We Got Here

The BBA’s recent report on civil legal aid in the Commonwealth , “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts,” paints a dire picture.  In spite of generous monetary support from the private bar and Legislature alike, nearly two-thirds of those who qualify for legal aid are turned away due to a lack of resources.  It is a sad and frustrating state of affairs when some 54,000 qualifying individuals cannot obtain the legal help they need to secure necessities such as shelter or protection from a batterer. This predicament didn’t manifest overnight.  This is how we got here…

The Massachusetts Legal Assistance Corporation (MLAC) was established by the Legislature in 1983 to provide financial support for legal assistance programs in Massachusetts.  Shortly thereafter, in 1985, the Interest on Lawyers Trust Account (IOLTA) program was created by the Supreme Judicial Court.  The IOLTA program collects interest on funds held in trust by attorneys and uses them to help fund legal aid.  By 1990, MLAC’s total funding was just under $8.4 million.  This included nearly $3 million from IOLTA, $2.8 million from a surcharge on civil case filing fees, and almost $2 million from a legislative appropriation.

In 1994, the Legislature changed the law, moving the funds from the surcharge on civil filing fees from MLAC to the General Fund.  While the Legislature has since greatly increased its yearly appropriation to MLAC, up to $15 million in Fiscal Year (FY) 2015, it has never again given MLAC a direct source of revenue as it had from the filing surcharge through 1994.  This item has produced around $4 million of income for the General Fund in the last few years.

At the same time, IOLTA revenue was generally increasing, until it reached tens of millions of dollars annually in the early 2000s, including more than $16 million in FY 2007 and $17 million in FY 2008.  MLAC total funding in each of those years was over $25 million.  When the recession hit in 2008, IOLTA plummeted and the legislative appropriation dropped.  MLAC’s total funding decreased over ten million dollars in a single year.  Each year since then, IOLTA funding has continued to drop, and although the Legislature has continued to gradually increase funding for legal aid, and individuals — mostly lawyers — have continued to contribute tens of millions of dollars’ worth of pro bono services and monetary donations, legal aid funding lags behind the growing need.

One figure in particular helps highlight this gap: Turn-away rates, which were about 50% in the mid-2000s, have reached an estimated 64%, as calculated by the BBA’s Statewide Task Force to Expand Civil Legal Aid.  The funding decreases forced legal aid agencies to lay off experienced attorneys and implement hiring freezes.  Compounding the problem, the state experienced a nearly 25% increase in the number of individuals qualifying for legal aid in recent years, to almost 1 million people today.

Now that we know how we got here, we are excited to see where we can go.  “Investing in Justice” demonstrates, through the work of three independent economic analysts, that the state stands to save a significant amount of money by investing in civil legal aid.  The report recommends a $30 million annual increase in legal aid funding over the course of the next three years.  We know that amount is not even close to enough to solve all our problems, but it is a sound start.  We hope the Legislature will heed the advice of SJC Chief Justice Ralph Gants from his State of the Judiciary Address, asking them to carefully consider our findings and recommendations.  The money the state invests in legal aid will pay dividends, and not just for the state’s bottom line. The investments improve the administration of justice in the courts and, most importantly, they improve the lives of individuals in Massachusetts, allowing them to secure basic needs such as shelter, safety, and human dignity.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Long Road to a Roadmap

On Wednesday, October 15, the BBA released its Task Force report on civil legal aid issues – “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts.”  We are extremely proud of the report.  As far as we know, this is the first time data such as turn-away rates and a survey on judge’s observations has been so systematically gathered and examined.  In addition, the report features the outstanding work of three independent economic analysts, who, working pro bono, broke down the areas of housing, domestic violence, and federal benefits into cost-benefit analyses based on state funding.

The report’s findings paint a dire picture.  Roughly 64% or more than 54,000 income-qualifying people who sought civil legal aid in Massachusetts last year were turned away due to lack of resources.  In addition, more than 60% of judges said that lack of representation resulted in a negative impact on the court’s ability to ensure equal justice.

However, the economic analysts’ reports reveal a potential boon for the Commonwealth.  Conservative estimates showed that investment in civil legal aid would actually result in cost savings to the state and growth for our economy.  Taking these numbers into account, the task force recommends a $30 million increase in annual state funding to help bridge the gap between existing resources and what is needed to provide appropriate civil legal aid to all who are eligible.  Although that amount will not solve the entire problem, it would be a great start.

“Investing in Justice” was released to some fanfare, with an exclusive article on the cover of the Boston Globe, radio coverage on WBUR and WBZ, and continuing media coverage, including a feature-length story in the MetroWest Daily News.  However, it is important to remember that this did not all happen at once.  The report is the result of more than 18 months of hard work by a devoted group of task force members.  Even beyond that it is the result of the foresight of task force chairman and former BBA president J.D. Smeallie, Holland & Knight, who decided to tackle the gargantuan issue of civil legal aid funding as his presidential initiative almost two years ago.

When J.D. Smeallie became president of the BBA in 2013, he took note of the revolution occurring in New York State surrounding funding for civil legal aid.  Since 2010, the state had been massively expanding its legal aid funding, based largely on reports issued by its Task Force to Expand Access to Civil Legal Services, chaired by Helaine Barnett and created by Chief Judge Jonathan Lippman.

Each year, the task force was comprehensively exploring different aspects of legal aid.  It gathered testimony from legal aid clients and business leaders and solicited the work of economists to examine potential cost-savings from legal aid funding.  It examined pro bono initiatives and ways law schools could get involved to meet the unmet needs for legal aid.  Finally, it made findings and recommendations for action, many revolving around state funding . . . and the state was listening.  In FY 2012, Judge Lippman demonstrated his personal commitment to civil legal aid, setting aside $27.5 million from his general court operating budget for civil legal services.  That allocation increased with the support of the state legislature to $55 million in FY14 and to $70 million in FY15.

Smeallie looked to New York’s task force as a model and began crafting his own team in Massachusetts.  He had a few priorities – to include representatives from all parts of the state and to make sure they had diverse interests.  In the end, his efforts produced the 28-member BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts:

Susan Alexander – Executive Vice President and Chief Legal Officer at Biogen Idec Inc. 
Lawrence Bacow -
Former President of Tufts University 
Chris Barry-Smith

Manisha Bhatt
 – Senior Attorney at Greater Boston Legal Services
Jonathan Chiel – Executive Vice President and General Counsel at Fidelity Investments
Hon. Martha Coakley – Attorney General of the Commonwealth of Massachusetts
Katherine Cook – Chief Legal Counsel at The Office of the Governor
Paul T. Dacier – Executive Vice President and General Counsel at EMC Corporation, Past-President of the Boston Bar Association
Lawrence S. DiCara – Partner at Nixon Peabody LLP
Russell Engler – Professor of Law at New England Law | Boston
Hon. John V. Fernandes – State Representative at the Massachusetts House of Representatives
Robert Holloway – Past-President of the Massachusetts Bar Association
Kathleen Joyce – Senior Counsel at Boston Redevelopment Authority
James C. Kennedy – Chief Legal Counsel at the Massachusetts House of Representatives
Joan Lukey – Partner at Choate, Hall & Stewart LLP
Hon. Richard J. McMahon – Justice at Probate and Family Court, Bristol County
Martha Minow – Dean of Harvard Law School
Alice Moore – Counsel to the Massachusetts Senate
Susan Murley – Co-Managing Partner at Wilmer Cutler Pickering Hale and Dorr LLP
Joseph Nauman – Senior Vice President and General Counsel at Acushnet Company
Lon Povich – General Counsel at BJ’s Wholesale Club
Lonnie Powers – Executive Director of Massachusetts Legal Assistance Corporation (MLAC)
Mary Puma – Chief Executive Officer of Axcelis Technologies
Faye Rachlin – Deputy Director of Community Legal Aid in Worcester, MA
Elizabeth Soule – Executive Director of MetroWest Legal Services
Veronica Turner – Executive Vice President at 1199SEIU United Healthcare Workers East in Massachusetts
Hon. David Weingarten – First Justice at Boston Municipal Court, Roxbury Division
Hon. Jim Welch – State Senator at the Massachusetts State Senate, Hampden District

A look at their affiliations above shows how well he succeeded.  The group includes representatives from across the state, bringing together leaders from business, academia, and all three branches of government; attorneys from legal services, private practice, and in-house staffs.  In addition, the task force recruited three independent economic analysts, who provided pro bono services.  Analysis Group studied potential cost savings to the Commonwealth from civil legal aid funding in the area of housing, foreclosures, and evictions.  Alvarez & Marsal looked at domestic abuse issues, and NERA Economic Consulting calculated the potential for economic growth from investment in civil legal aid in the area of federal benefits.

We are proud to have watched this process from the beginning – the inspiration, the drafting of the task force, 18 months of intensive study, and finally the release of the report and resulting media and public reactions.  We hope that you will take the time to read “Investing in Justice” for yourself – contemplate the problem and consider the proposed solutions.  We hope that it will has profound an effect for you as it does for us.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Governor Patrick and the Importance of a Diverse Judiciary

On October 14, we will honor Governor Deval Patrick with the 2014 BBA Beacon Award for his commitment to diversity on the bench.  It is important to reflect on the immensity and breadth of his impact, because his work certainly transcends the judicial branch.   For example, most executive-branch employees are now women, and more than a quarter are people of color.  During his time in office, there has been a 10% increase in the number of women holding managerial positions in the executive branch, and a 57% increase for racial minorities.

These changes are not happenstance; they were the direct result of a concerted effort by the Patrick Administration to overhaul the executive branch.  During his first month in office, Governor Patrick enacted Executive Order 478, declaring his commitment to diversity.  In 2011, he reaffirmed this commitment with Executive Order 526.  The orders spell out the means to achieving diversity through hiring.  Some of the highlights include:

  • Section 2 – declares “non-discrimination, diversity, and equal opportunity” as policies of the executive branch “in all aspects of state employment, programs, services, activities, and decisions.”  It charges each agency to consider the effects of its actions on achieving this policy.
  • Section 4 – calls for the protection and affirmative promotion of equal opportunity and diversity in all state, state-assisted, and state-regulated programs, activities, and services.
  • Section 10 – requires diversity training for current executive-branch employees at all levels and for all future new hires.

Similar to the executive branch, the judiciary has changed markedly over the past seven years as well.  It is currently at a high point of diversity.  Earlier this year, the Supreme Judicial Court’s first Chief Justice of color, Chief Justice Roderick Ireland, was replaced by the first Jewish Chief Justice, Ralph Gants.  In addition, with the appointment of Geraldine Hines, the first black woman to serve on the SJC, the state’s highest court has a majority of female justices for the first time.  Governor Patrick also appointed the first openly gay SJC justice, Barbara Lenk, and the first Asian-American justice, Fernande R.V. Duffly.

Diversity on the bench is important for a number of reasons.  A jury trial calls for a set of one’s peers gathered from the community, yet there is no such ideal in place for judges.  Thus, those who preside over cases may not be as representative of the population they serve.  As a recent Boston Globe article explored, this arrangement could be a source of bias, a troubling thought even if it is likely unintentional.  As one scholar contends, true impartiality requires judges from diverse backgrounds and viewpoints to avoid a situation where one perspective dominates.  Consider as well that people who come in contact with the judicial system may feel a lack of confidence in, or out of touch with, the court if the judges, clerks, attorneys, and others they encounter do not reflect the broader community outside the courthouse.

Achieving a diverse judiciary is a major problem across the U.S.  In most states, racial and gender diversity on the bench lags behind not only that of the state population, but also the diversity of the bar, suggesting possible bias in judicial selection.  In fact, a 2010 Brennan Center study, which advocated for improved judicial diversity, made grappling with implicit bias its top best-practice recommendation for judicial nominating committees.  The problem here is two-fold: first, bias limits the diversity of the bench, and second, in a state like ours where citizens can apply for judgeships, it could have a chilling effect on qualified minority candidates.  Governor Patrick has worked to make sure that this doesn’t happen in the Commonwealth.  His Executive Orders and judicial appointments have fulfilled a myriad of the Brennan Center study’s suggestions and made Massachusetts a leader of judicial diversity.

We are proud of the progress Massachusetts has made under Governor Patrick’s guidance.  We look forward to honoring him next week and hope that whoever follows him in office will build on his progress on diversity in both the judicial and executive branches.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Annual Judges Meetings: The BBA Meets with the Courts

Over the past two weeks, we began our annual series of presidential meetings with the chief justices of various courts and court departments in Massachusetts.  Thus far, BBA President Julia Huston and staff have met with Chief Justice of the Trial Court Paula M. Carey and Trial Court Administrator Harry Spence, Chief Justice of the Probate & Family Court Angela M. Ordoñez, Chief Justice of the Housing Court Steven D. Pierce, and Chief Justice of the U.S. District Court for the District of Massachusetts Patti B. Saris.  In keeping with our commitment to appropriate funding for the courts, and to access to justice, we discussed ways the BBA can assist specific court departments in achieving their goals for the upcoming fiscal year and beyond.  Here are some takeaways from these sessions:

  • Access to Justice: The Trial Court is looking to expand on the successful Court Service Center (CSC) programs. The Brooke Courthouse CSC alone served 1,500 people in the last three months, mostly for domestic cases.  The Probate & Family Court is working on the same front, attempting to expand its Family Court Workshops to help those in need with their legal problems.


  • Funding: The Trial Court continues to implement elements of its Strategic Plan. Part of this plan calls for the creation and expansion of specialty courts.  This year, the Trial Court received $2.7 million for the administration of specialty courts, and it is working to get these up and running. The court hopes to install eight more specialty courts this year and 24 over the next three years, possibly adding a domestic violence specialty court to the four types currently in operation – mental health, substance abuse, homelessness, and veterans courts.


  • Technology and Modernization: The Trial Court is building a strong foundation for the future through innovation. To streamline practice for attorneys and pro se litigants alike, it is seeking to expand Alternative Dispute Resolution and Limited Assistance Representation programs.  The Court is also integrating technology into its daily practices, including electronic applications for criminal complaints and e-filing.  It recently launched a pilot program in Bristol County that gives attorneys online access to dockets and calendars; this program has resulted in a marked reduction in calls to the court office.  The next step for the Trial Court will be to roll-out “Court View to Go,” an application that provides attorneys instant case updates on smartphones.  The Probate & Family Court is working on similar projects, including a new status-inquiry form and a pilot program on limited-issue settlement conferences.


  • Court Practice and Procedure: The Trial Court and Probate & Family Court are examining internal practices. The Trial Court is revising its judicial evaluation process, in order to better assess and train its judges.  The Probate & Family Court expressed concerns over a lack of civility exhibited by attorneys and is working with the Massachusetts Bar Association to update their civility guidelines and examine ways to help attorneys reform their behavior, such as sending offending attorneys to a civility education program in lieu of the monetary sanctions that can currently be imposed.


  • Housing Court Expansion: We spent most of the Housing Court meeting discussing a possible statewide expansion. Currently, almost 1/3 of the state’s population is unable to access the Housing Court, including the Cape and Islands; almost all of Norfolk County; South and West Middlesex County; and the towns of Revere, Chelsea, and Winthrop.  The potential expansion would not require any new courthouses; it would simply mean adding judges to sit at regular weekly sessions.  This plan would ease some of the District Court’s caseload, while preserving the District Court’s concurrent jurisdiction.


District Court Sentencing and Release Concerns: Sitting down with the Chief Justice of the U.S. District Court for the District of Massachusetts, Patti Saris, we spoke about sentencing – a topic she is thoroughly familiar with, as chair of the U.S. Sentencing Commission.  She expressed concerns about mandatory minimum sentences.  The BBA has long opposed such sentences, because judges should have discretion to consider the nuances of each case and the individual defendant when making sentencing decisions.  Although achieving consensus on eliminating these sentences may prove difficult on the federal level, it is possible that the sentences could instead be decreased, and the Chief Justice briefed us on some pending legislation in Congress to do just that.

We spoke as well about re-entry programs for people released from incarceration; these are critical to reducing recidivism, and Chief Justice Saris had suggestions about how our Public Interest Leadership Program (PILP) could help work with the state on successful reentry.  For individuals recently released from prison, housing concerns go hand-in-hand with finding a job, since low-wage employment may not be enough to sustain housing.  Meanwhile, affordable Section 8 housing is rife with restrictions, often barring convicted felons — which can lead them to stay instead with the very people they should be avoiding as part of a successful reentry plan.

As for court funding, the Chief Justice explained that the federal court budget crisis is resolved, if only for now, and the Court has filled vacancies created during a hiring freeze.  However, the Court remains wary that these issues could arise again.

We have more meetings scheduled for the coming weeks and will continue to keep you posted on our discussions as we seek to learn more about how we can work to assure the continued excellence of the Massachusetts judiciary.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Representative Tsongas at the BBA

cropped tsongas

On Tuesday, U.S. Representative Niki Tsongas visited the BBA to speak about her efforts to eliminate sexual assaults within the military.  Representative Tsongas is the Ranking Member of the House Armed Services Subcommittee on Oversight and Investigations.  She is one of the leading voices in the country on this pervasive problem, the scope of which has only recently come to light.

While it is estimated that 26,000 service members experienced unwanted sexual contact in 2012, only about 13.5% of military sexual assaults get reported – a figure that is even lower than reporting rates among the general population.  The problem is not limited by gender or sexuality.  Furthermore, victims are often traumatized multiple times – first with the initial assault, again when they file a formal report with sensitive and personal information, and often a third time when they face isolation, retaliation, and the frustration of being ignored.

Military sexual assault concerns have become so intrusive that Representative Tsongas often speaks of meeting a military nurse who had been deployed several times to Afghanistan and Iraq yet considered herself more at risk of being assaulted by fellow service-members than harmed by enemy combatants.  This nurse was so concerned that she kept a knife tucked in her waistband to protect against potential attackers from her own armed services.

In response, Representative Tsongas has drafted a number of bills, some of which have been enacted, to help the military respond from within, give support to survivors, and help victims seek justice.  She also serves as co-chair of the Military Sexual Assault Prevention Caucus, which she established with Congressman Mike Turner.  The Caucus holds regular hearings, travels to military bases, and receives briefings from members of the armed forces and activist organizations to better assess the problem and devise solutions.

With the help of leaders on the issue like Representative Tsongas, the shocking prevalence of sexual assaults within the military has garnered much attention from Congress.  And the public focus that resulted may be responsible for a sharp spike in reports from service members this past year, as victims become more comfortable speaking out against their abusers – indicating a possible turning point for a military culture that for too long has encouraged silence.

In her talk to the BBA, Representative Tsongas listed the keys to addressing the issue of military assault: patience, persistence, and bipartisanship.  She continues to be a leader in all three.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Learning and Doing – BBA Government Relations Department Update

It’s been a busy past few weeks in the BBA’s Government Relations department.  Although the legislature is not in formal session, we’ve had plenty of activities and events to keep us occupied.  Here is a rundown of some of the recent goings-on.

Inspiring Public Service Leader Eugene O’Flaherty speaks to PILP


A couple weeks ago we attended a meeting of the BBA Public Interest Leadership Project (PILP), for an intimate discussion with former legislator and current City of Boston Corporation Counsel Eugene O’Flaherty.  The presentation gave us a great opportunity to hear about the life and career of one of Boston’s most well-known public-service attorneys.

Eugene O’Flaherty spoke candidly and at length about his upbringing, legal work – often as a bar advocate, legislative career, and current role as Boston’s Corporation Counsel.  When he was 26, O’Flaherty decided to run for a vacant State Representative seat in his district.  Despite the fact that his opponent was a well-established and respected member of the community who vastly outspent him, O’Flaherty won the election.  He credits this first victory to outworking his opponent – knocking on doors and speaking first-hand with the people in his district.

He was subsequently re-elected nine times, serving for 19 years, 12 of them as Chair of the Judiciary Committee.  O’Flaherty described chairing this Committee as both a challenge and a triumph.  He was pleased at his appointment to the post in 2002, but noted that his reaction may have demonstrated naiveté.  The Judiciary Committee regularly considers many of the most contentious bills, and O’Flaherty explained that his service made him both appreciate the challenge of the position and grow a thick skin.  He cited defeating the reintroduction of capital punishment as his greatest success in this role.   O’Flaherty also noted close ties to his community as a driver of his success, explaining that his constituents tended to be highly politically involved and proactive in identifying issues of importance for him to champion.

This year, O’Flaherty made a jump to working as Corporation Counsel at the repeated requests of Mayor Marty Walsh, a close friend since the time they joined the Legislature.  He told PILP about his adjustment – thus far it has been both demanding and gratifying, but certainly no small task to limit the city’s legal exposure across all areas of law, keep the city running smoothly, and help the Mayor implement his vision.

One thing is for certain, Eugene O’Flaherty is no stranger to serving the public and getting results in the face of great challenges.  The PILP members were energized by his presentation and continued the discussion with multiple questions about his life and extensive career accomplishments.  He ended his presentation by challenging PILP members to get involved with local government and the City of Boston by serving on one of its Boards and Committees.  We learned a lot about a respected lawyer and public servant and were pleased to watch him inspire the next generation of public interest lawyers in Boston.

 Leaders in the Fight against Opiate Addiction Come Together

The conversation from one of our recent blog posts continued in early September at “In Our Own Backyard: A Panel Discussion on the Opiate Epidemic in Massachusetts.”  This discussion, hosted by The United States District Court, District of Massachusetts and held at the Moakley Courthouse, featured two panels of distinguished speakers sharing their work, observations, and ideas about how to solve the opiate crisis in Massachusetts.

The first panel featured Boston Mayor Martin J. Walsh, Representative Randy Hunt, Doctor Alexander Walley, and U.S. District Court Judge Leo T. Sorokin.   The second panel consisted of Quincy Police Lieutenant Patrick Glynn, Senior U.S. Probation Officer Andrew Laudate, Lahey Behavioral Health Services Representative Kevin Norton, Boston Medical Center Representative Colleen LaBelle, and Learn to Cope, Inc. founder Joanne Peterson.  Here are some of the major points they discussed:

  • The key to solving the opiate addiction crisis is combining enforcement, education, and treatment.
  • Education must start for children in elementary school in addition to being generally available for everyone, especially parents.
  • More first responders should be trained to administer Narcan, a drug which can reverse the effects of an opioid overdose.
  • Police and drug enforcement officers need to provide facilities for people to deposit their un-used prescription pills to avoid their misuse or theft.
  • The Massachusetts prison system would better serve recovering addicts by shrinking or eliminating “queues” – to receive treatment. A great deal of data corroborates the fact that addicts who assent to treatment are far more successful if they receive that treatment immediately rather than having to wait for weeks or even months to begin.
  • The state needs more treatment facilities and we must find ways to overcome the financial shortcomings facing these institutions.
  • There are currently some effective programs that merit continuation and possible expansion such as the District Court’s CARE program whereby judges meet with drug addicts undergoing treatment to monitor their progress and assess the need for small responsive penalties. This program has a proven track record, allowing judges to be most responsive to a person’s needs and immediately reactive to potentially negative or dangerous behavior that could lead to recidivism or further drug abuse.

Civil Legal Services Achieve Breakthrough

We recently learned about a major SJC ruling that lowered the standard for defendants to have their case records sealed and giving judges further guidance on this issue.  The ruling is the result of the hard work of Greater Boston Legal Services’ (GBLS) CORI & Re-entry Project.  It will help individuals who are burdened by their criminal record, which can interfere with their ability to reintegrate in society by adding hurdles to tasks such as securing housing or a job.

Under the previous regime of the Commonwealth v. Doe case, litigants, who were often unrepresented, had to prove that: (1) the value of sealing their records clearly outweighed the constitutionally-protected value of the record remaining open to the public, (2) that there was a compelling state interest in sealing the record, and (3) that there was a risk of specific harm from the record.  Otherwise judges had little guidance on the practice of record sealing.

The new case, Commonwealth v. Pon, lowers the record sealing standard to “good cause” and provides additional guidance for judges, advising them to consider the government’s interest in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.  Thus, future litigants need only share a present or foreseeable future disadvantage related to their CORI for the court to seal the record.  MassLegalHelp offers assistance by way of information and forms to those seeking to seal their criminal records under the new ruling.

In all, the last few weeks have kept us busy, just the way we like it.  We will continue to keep you in the know on all of our latest news and events.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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A Retrospective – The BBA and Busing, 40 Years Later

As another school year begins, we pause to consider a tumultuous period in Boston history.  Forty years ago this week, the eyes of the nation were on the Boston public school system as it implemented an extremely controversial desegregation and busing plan. Locals who lived through those days will likely never forget them, but many of us are too young to remember.  The anniversary of this time has once again brought the issue to public light.  The Boston Globe’s articles and brief documentary and WBUR’s oral history vividly evoke the tenor and events of those not-so-distant days, when students were bused to different areas of the city to fulfill the goals of the Court-approved desegregation plan.

The BBA played a prominent leadership role in helping the city understand the legal principles at play in this episode.  In 1974, following Judge Arthur Garrity’s decision in Morgan v. Hennigan, then BBA President and 2014 Lifetime Achievement Honoree, Ed Barshak, appointed a Committee on School Desegregation.  The Committee’s report, “Desegregation: The Boston Orders and Their Origin,” explained the power of the federal court, discussed the content of the opinion and desegregation orders, and provided a list of various resources available for further explanation.

Some key points from our Committee Report:

The District Court’s power is traced to Article III of the U.S. Constitution, which gives Congress the power to create federal courts and provides the President with the power to appoint federal judges for life-long terms.  Federal courts have the power to resolve disputes and order appropriate remedies, but are also limited in many ways including in their jurisdiction to hear cases and their enforcement powers.

The Equal Protection Clause prohibits states from denying equal protection of the law to any person, meaning that no government organization in any state can pass a law or regulation which arbitrarily denies state citizens benefits given to others.  By 1974, the U.S. Supreme Court already dealt with a number of cases on public school segregation, most famously Brown v. Board of Education, and established precedent that intentional segregation by a school board, whether or not state law specifically required it, violated the Equal Protection Clause.

The power of the federal court and importance of the Equal Protection Clause play important roles as well in Morgan v. Hennigan, the Boston school desegregation case.  The complaint alleged that the Boston School Committee intentionally brought about and maintained racial segregation through many of its policies.  The School Committee agreed that schools were in fact segregated, but argued that this was due to residential segregation and the policy of schools serving local neighborhoods.  When Judge W. Arthur Garrity examined the facts at hand, he made the following findings:

  1. Mostly white schools were badly overcrowded while mostly black schools had excess space, yet the School Committee did not transfer students to even out the numbers.
  2. The School Committee intentionally refused to change existing districts to make schools more racially even.
  3. The school system “feeder” program had the intended and actual consequences of pushing students from predominantly black or white elementary and junior high schools into high schools that were homogenous along corresponding racial lines.
  4. The allegedly open transfer policy was actually used as an aid to white students to transfer out of predominantly black schools.
  5. Teachers were also segregated by race.
  6. Three examination schools were predominantly white, while two trade schools were predominantly black.

Ultimately, Judge Garrity determined that the School Committee intentionally and purposefully created and maintained a segregated school system in Boston.  The Court’s remedy was the installation of a desegregation plan which included the aforementioned busing arrangement.

When the plan was initially met with protests and a boycott by some white students, the Governor Francis Sargent stepped in to enforce the court’s remedy, bringing in the State Police and putting the National Guard on alert.  It would take the city some time to devise further phases of the desegregation plan, and far longer for the public to come to terms with them, but the BBA recognized right away that Judge Garrity’s decision was changing the city for good.  In fact, the BBA honored him with the Public Service Award in 1975, just one year after the controversial decision.

The BBA is proud of our long history of advancing diversity and inclusion, not just in the legal profession, but in the community at large.  This commitment remains a cornerstone of the BBA mission, as does our involvement with Boston’s public schools, which continues today through public service initiatives such as the BBA Summer Jobs Program and M. Ellen Carpenter Financial Literacy Program.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Justice Prevails, At Long Last, in North Carolina Death-Penalty Case

Thanks in large part to the hard work of attorneys from BBA sponsor firm Wilmer Cutler Pickering Hale and Dorr, this week a North Carolina judge exonerated and ordered the release of half-brothers Henry Lee McCollum and Leon Brown based on DNA evidence.  This outcome reaffirms the BBA’s four-decade-old position opposing capital punishment and highlights the importance of recent work by the BBA on the death penalty and on wrongful convictions. 

McCollum and Brown spent more than 30 years in prison after being pressured into false confessions admitting to the rape and brutal murder of 11-year-old Sabrina Buie when they were 19 and 15 years old, respectively.  Richard Johnston of WilmerHale represented them in their successful appeal, alongside colleagues Jared Cohen, Andrew Dulberg and Steven Finizio. 

The judicial process that landed the brothers in prison – and McCollum on death row – showcased a litany of systemic problems that the BBA has been discussing for some time and made subjects of recent reports, including a failure by the prosecution to turn over required evidence that should have led investigators to a potential suspect who lived near the place where the victim was found, had a history of sexual assaults, and was convicted of a remarkably similar murder that occurred weeks later.

The brothers, both mentally-disabled, confessed after lengthy interrogations that took place in the absence of any lawyer or parent and with no audio or video recording – something a BBA task force on wrongful convictions warned against.  But it was long-overdue testing of DNA evidence that ultimately cleared the two men and pointed to the overlooked suspect – a result made more likely in Massachusetts under a 2012 law, which the BBA fought for, expanding access to forensic testing.

The New York Times, featured the case on the front page, following up with an editorial stating that it “provides a textbook example of so much that is broken in the American justice system” and offers “further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.”  The BBA’s Death Penalty Working Group released a report in December 2013 compiling that evidence, and extending our opposition to the death penalty to include federal cases, and updating our reasoning for this stance.  The BBA’s opposition to capital punishment stems from three main points:

1. The inevitability of errors in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants.

In the 40 years since the BBA filed its first death penalty amicus brief, more than 143 wrongfully convicted defendants on death row have been exonerated.  This figure is unsurprising given the findings of the 2009 BBA Task Force to Prevent Wrongful Convictions, whose report, “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts,” identifies the most common sources of wrongful convictions and makes many specific recommendations concerning the way police should conduct identification procedures, interviews of witnesses and suspects, post-conviction relief and forensic science, and standards of discovery, trial practice, and defense.

2. In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities.

The Death Penalty Working Group found that it is sought by prosecutors, and applied by juries, far more often when the victims are white than when they are members of minority groups.  Defendants in death penalty cases are more likely to be members of minority groups than white, as were the two wrongfully-convicted brothers from North Carolina.

3. Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Death penalty cases take longer and cost more than other forms of justice.  The median cost of defending a federal death-eligible case is eight times higher if the Department of Justice seeks the death penalty.  Although total costs are hard to estimate, a study based on a single 2013 death penalty case pegged the total expense at $10 million — considerably greater than in non-capital cases, even factoring in the cost of incarceration for life.  Capital punishment simply puts a remarkably high economic cost on society.

Thus, the BBA comes to its position through a close analysis of the basic facts: Error is inevitable, the death penalty is exorbitantly expensive for society, and racial and ethnic minorities bear the brunt of its effects.  We are pleased that justice was served for Lee McCollum and Leon Brown — albeit 30 years late — but it underscores our opposition to the death penalty and our commitment to “getting it right” in the first instance. 

The man linked to the Buie killing by DNA evidence is currently serving life in prison (commuted from a death sentence, as it happens) for another crime.  But as the BBA’s task force stated in its report on improving the accuracy and reliability of the justice system, “For every innocent defendant convicted of a crime he did not commit, a truly guilty perpetrator remains free to commit other crimes, and the expectation of the victim and the public that justice will be done goes unrealized.”

- Michael Avitzur
Government Relations Director
Boston Bar Association

Summer Summaries

As we at the BBA prepare to usher in a new program year and new president, Julia Huston, we’ve been keeping an eye on some recent legal events that may be of interest.

Civil Legal Aid

New American Bar Association (ABA) President William Hubbard announced that he will use his post to find ways to provide legal services to low-income individuals.  This is particularly timely for us given the impending release of the report authored by the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.   The Task Force’s report is expected to be released in September, and its members will be honored at this year’s Annual Meeting on September 12. 

Hubbard’s initiative is already underway with a Commission on the Future of Legal Services approved in June by the ABA Board of Governors.  In addition, in late spring of 2015, the ABA is planning to host a national conference on legal services delivery.  The ABA seeks to identify the most innovative practices from across the country with a focus on the use of new technology, especially in the field of communications, where a recent Legal Services Corporation study found that an overwhelming majority of individuals below the poverty level have cell phones, and nearly half have smartphones.

The ABA is also committed to continuing the Legal Access Job Corps program started by its former president, James R. Silkenat.  This program seeks to bring together two communities – those in need of legal aid and the growing ranks of unemployed and underemployed lawyers.  This summer the Legal Access Job Corps gave out “catalyst awards” to legal services offices, bar associations, and law schools to help fund projects employing new lawyers in innovative ways to address the legal needs of poor or moderate-income people.

We applaud the work of the ABA on this issue, and look forward to the findings of the conference.  Keep an eye out for our Task Force Report coming soon.

Marriage Equality

A few weeks ago we wrote about a Fourth Circuit case striking down Virginia’s ban on same-sex marriage which appears bound for the Supreme Court.  In addition we noted a positive trend, a string of state and federal rulings supporting same-sex marriage over the last 14 months following the Supreme Court ruling’s ruling in the Windsor and Perry cases.  The BBA has long been a supporter of marriage equality, having filed amicus briefs in its defense in 2002, 2005, 2011, and for two cases in 2013.

It looks like another Circuit is following this trend.  This time the good news comes from the 7th Circuit Court of Appeals where a three-judge panel struck down same-sex marriage bans in both Wisconsin and Indiana.  This was especially noteworthy due to the 7th Circuit’s traditionally conservative tone and the judges’ challenging questions to attorneys at oral argument, including what benefits society gained from barring same-sex marriages and whether children of same-sex couples might suffer psychologically if their parents had to try to explain why they were not allowed to be married while other children they interacted with had legally married parents of opposite sexes.

We are tracking these cases and keeping an eye on the U.S. Supreme Court docket to see whether they will weigh in next session.

From the SJC

On Monday, the Massachusetts Supreme Judicial Court (SJC) ruled, in the case of Commonwealth v. Jose A. Guzman, that a law requiring GPS monitoring during probation for those convicted of certain “noncontact” sex offenses involving a child did not give a judge discretion on whether to impose GPS monitoring. 

In that case, a Superior Court judge had declined to include GPS monitoring as a condition of probation, despite the fact that the defendant plead guilty to a sex offense involving a child, an offense requiring GPS monitoring as a condition of probation by law.  The defendant claimed that the law violated procedural due process rights and protections against unreasonable search and seizure by requiring the same probationary measure for any sex offense involving a child, from pornography (as was at issue in this case) to sexual assault.  The SJC rejected these arguments, finding that the law was Constitutional and the Superior Court judge erred.

We are looking forward to seeing many of you in the coming weeks here at 16 Beacon and at the Westin Copley for Annual Meeting while we get back into the swing of things for the 2014-15 program year.

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Brockton, Bill, and Budget: Intra-Governmental Efforts to Eliminate Substance Abuse

This past year, we witnessed a proliferation of substance abuse emergencies in our communities, prompting the Governor to declare a public health emergency.  At the same time, our understanding of best treatment both scientifically and criminally continues to evolve.  Thus, we are pleased to see the response of our government, which has come together across branches and politics to make some major changes in an attempt to address the problem.   Through the budget, legislation, and judicial innovation, the Commonwealth is taking on this issue in new and creative ways.

We noted in our budget updates that the Trial Court’s budget request included a $2.7 million “module” for the creation of specialty courts.  Although the final budget was about $3 million below the Trial Court’s $615 million request, it specifically included funding earmarked for this project.  In fact, this module was provided for in each step of the budget process across the Executive and Legislative branches – first by the Governor, next by the House and Senate, and finally in the Conference Committee budget signed by the Governor.  The Senate even called for an additional $300,000 in funding beyond the Trial Court’s request to help fund continuing examination and analysis of specialty court functioning.

At the end of formal session, the legislature passed its own measures to combat drug abuse in the bill S2142, An Act to increase opportunities for long-term substance abuse recovery, which Governor Patrick signed into law on August 6th.  The bill is intended to prevent drug abuse by increasing oversight on prescriptions while also making treatment easier to obtain and afford.  Most notably, the bill includes provisions requiring insurance providers to cover deterrent drug products and substance abuse treatment in some cases.  Other parts of the bill increase oversight and monitoring of patients prescribed certain drugs and require coroners to report opioid-related deaths to the Department of Public Health (DPH) and the U.S. Food and Drug Administration (FDA).  In addition, the bill gives DPH new authority to monitor potentially dangerous substances.  Although the bill costs $20 million and caused some concerns for insurance companies, it passed with bipartisan support and has been touted as a potential model for federal legislation.

Around the same time the bill was passed, the Trial Court announced its plans to open a new specialty drug court in Brockton, funded by the $2.7 module appropriated by the legislature.  BBA President Paul T. Dacier examined the specialty court system and drug courts in particular this year.  In his blog, he notes that the specialty court model achieved remarkable results nationwide, reducing recidivism and helping people recover from addiction.  Specialty Court sessions feature judges trained and peer-reviewed in handling certain issues.  The Courts focus on rehabilitative treatment programs and probation, sometimes lasting up to two years.  This approach has resulted in seventy-five percent of rehabilitation program graduates remaining arrest-free two years out of the program – quite an achievement, especially considering that Specialty Courts handle the cases of those individuals considered most at risk of recidivism.

While the issue of substance abuse is extremely complex and constantly changing, we were pleased to see – from the budget, to a bill, to the execution of specialty courts – that each branch came together in an attempt to solve a problem and improve the lives of people in Massachusetts. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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