Monthly Archives: July 2012

Judicial Discretion Lacking in Sentencing Bill

Last week the BBA’s concerns were sparked by the lack of judicial discretion in the long-awaited sentencing bill that arrived on Governor Patrick’s desk. The bill, H 4286, has moved through the Massachusetts Senate and House of Representatives after many months of negotiation by a Conference Committee. By way of background, the House and Senate approved their respective sentencing bills in 2001, but each was vastly different. To find common ground, a Conference Committee was appointed to negotiate the differences between the two versions. Despite raising concerns about some of the details of the bill and questions about whether it actually accomplished meaningful reform, the Conference Committee’s bill passed both the House and Senate by a veto proof margin. The BBA acknowledges the hard work and dedication of all of the members of the Conference Committee on this difficult piece of legislation. We only wish that the Conference Committee had retained the judicial discretion portions so important to the fundamental principles of fairness and due process.

The legislation now awaits action by Governor Patrick. We don’t yet know what Governor Patrick is going to do with this bill. By statute he has ten days to decide and those ten days expire on Sunday. Here are Governor Patrick’s options — he can sign the bill, veto the bill, or he can send the bill back to the legislature with common sense amendments aimed at making this legislation sensible and meaningful.

H 4286 eliminates parole for certain categories of habitual offenders and includes some reforms regarding mandatory minimum sentences for certain drug crimes. The bill also shrinks school zones from 1,000 to 300 feet. Yes, there are aspects of the bill that are an improvement over the current sentencing laws. However, there are some significant things missing from this bill — including real and meaningful reforms for mandatory minimum drug sentences. Of greater concern to the BBA is the lack of judicial discretion in the entire bill.

The BBA has focused on sentencing reform for more than twenty five years. We hope that the Governor will file – and the House and Senate will consider — amendments that will make what is an okay bill a sound, more balanced bill.

A Glimpse at Our Recent Policy Agenda

This Tuesday the BBA’s Council – our governing body – held its monthly meeting.  This particular meeting served as a great example of how our public policy flows from the various prongs of our mission – to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large.  The BBA’s public policy is the body of principles that embodies our commitment to the administration of justice, the practice of law and other issues of special interest or concern to the organization.  When we do take an active role in public policy it is because we know we can be a leader in the conversation and add value to policy discussions, especially in the areas of access to justice and the fair and efficient administration of justice.

To keep current with these issues, the Council invited the new Court Administrator, Harry Spence, to speak at the meeting.  Mr. Spence candidly shared his observations of the system, his ideas for the next five years and his expectations for the Trial Court.  The BBA reiterated our support of the Judiciary and vowed to continue to work together on issues such as court funding and equal access to justice.

Also on the Council agenda were a few different issues that could have a profound impact on the legal profession.  The first is a proposed new rule from the Supreme Judicial Court (SJC), Rule 3:16: Practicing with Professionalism Course for New Lawyers.  Rule 3:16 will require an education class for newly-admitted lawyers to address issues such as law office management, professionalism and civility, professional ethics, do’s and don’ts of social media and other topics.  The BBA has put together a small group of experienced attorneys to review the proposed new rule and make suggestions regarding its implementation before it becomes effective sometime next year.

A second agenda item also came from the SJC, this time dealing with proposed changes to the Massachusetts Rules of Criminal Procedure.  The SJC has proposed amendments to Rules 12 and 29 that would change the way some criminal law attorneys practice including:

  • barring a state court judge from participating in plea negotiations unless both parties agree and only if such discussions are recorded and made part of the record;
  • binding the court to an accepted tendered plea agreement that contains either a charge of concession or an agreed sentence or sentencing range; and
  • absent agreement of both parties, revoking a court’s authority to reduce a sentence imposed under a biding plea agreement by means of a motion to revise and revoke.

The BBA’s Criminal Law Section stepped up and reviewed the changes.  Their comments are now being circulated to other Sections for input.

Our Sections were the catalyst for another item on the agenda – the update on the BBA amicus brief in Fisher v. University of Texas at Austin.  This case challenges the race-conscious admissions policies and practices at the University of Texas at Austin and is currently before the Supreme Court.  The BBA’s amicus brief in Fisher is another opportunity for the BBA to support diversity and inclusion in the entire justice system.  Getting into college is the first of many steps in becoming a lawyer.  Providing schools with the tools necessary to increase diversity will benefit the entire legal profession.  A diverse and inclusive legal community is central to the BBA’s pursuit of its mission because it will improve the quality of the legal profession and increase the public’s confidence in the judicial system.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Probate Bill and State Budget Get Go Ahead from Gov

As the formal session winds down (ending July 31st), the Governor last weekend signed into law two major bills the BBA has been tracking: An Act further regulating the Probate Code and establishing a Trust Code and the State Budget for FY2013.  Here’s a quick snapshot of these pieces of legislation:

Probate Code and Trust Code

The Massachusetts Uniform Trust Code (MUTC), corrections to the Massachusetts Uniform Probate Code (MUPC) and a revised fee schedule for the Probate Court represent a major victory for trusts and estates attorneys, the probate bench and the public.  These measures became effective immediately and will provide greater clarity and predictability for attorneys and clients.

The MUTC, now known as Chapter 140 of the Acts of 2012, codifies the laws of trusts and makes them more accessible and easier to understand.  With the passage of the MUTC, Massachusetts becomes the 24th state to have adopted the Uniform Trust Code (the District of Columbia also has the UTC).

The technical changes to the MUPC are intended to make the time-saving and efficiency of proceedings available to more estates.  Other sections of the legislation make corrections to the guardianship provisions of the MUPC to promote availability of medical information to the Court and to add flexibility for the Court to authorize guardians to place incapacitated person in nursing homes.

The revised fee schedule includes updated references to many actions and pleadings that are already being used under the MUPC.  Of specific importance are the revised fees for the first bond and first letter.  Under the revised fee schedule, there is no separate charge for the initial appointment bond of the fiduciary, or for the issuance of the first letter.

For additional information, check out this blog post drafted by the BBA Trusts and Estates section.  The Probate & Family Court also provides regular updates on its MUPC hub page.

State Budget

Governor Patrick has signed the FY13 state budget after taking the full 10 days allowed for reviewing the spending plan produced by the Legislature.  For the first 8 days of FY2013, the Commonwealth was operating on a temporary $1.25 billion interim budget.

The FY13 budget has huge implications for the welfare system, immigration status verifications and other policy areas.  As we’ve noted in this space in previous posts, the BBA took great interest in a few select line items:

  • The Massachusetts Legal Assistance Corporation (MLAC) received $12 million in funding.  While this figure falls short of the original request of $14.5 million, it will allow MLAC to continue providing legal services at its current level and to avoid MLAC needing to make further cuts to the organizations that it funds.
  • The Trial Court received $550,977,000 for FY13.  Governor Patrick did veto $10 million from the line item reserved for Probation.  The Governor noted that he believes the new figure meets the projected responsibilities and caseloads.  The Trial Court plans to ask the Legislature to override the Governor’s $10 million veto from Probation’s line item.

-Government Relations Department
Boston Bar Association
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Reflections for the 4th

As we prepare to celebrate the 4th of July and reflect on the founding of our nation, the BBA is reminded of its own beginnings and the meetings convened by John Adams in the 1700’s.  These meetings provided lawyers throughout the city with an opportunity to discuss the practice of law in colonial America and the common desire to live in a just society. Today the BBA, as a community of attorneys and citizens, focuses on these same issues in a variety of ways.

Just one example of the ways we do this is through our public policy work.  The BBA speaks out at the federal and state level on significant pieces of legislation that impact access to justice, the administration of justice and the practice of law – including civil rights and civil liberties. Our advocacy in this area spans such issues as affirmative action, the right to vote and same-sex marriage.  Some of our recent work includes raising our concerns over the National Defense Authorization Act in a letter to President Obama, testifying in support of the  newly enacted Transgender Equal Rights Act and collaborating with the Legislature to secure passage of a critical access to DNA bill in Massachusetts. The BBA continues to be a beacon for fair and equal treatment under the law for every citizen.

For America’s birthday we thought we’d share a quote from our founder, John Adams.  In a letter to his wife Abigail on July 3, 1776, John Adams wrote of the Declaration of Independence and the coming struggle for freedom:

“I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means.”

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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