Monthly Archives: May 2015

Seeking Great Judges Part 2: An Inside Look at the Joint Bar Committee

Last month we explained the work of the Judicial Nominating Commission (JNC) – the first layer of review for judicial nominees.  Here, we take a closer look at the Joint Bar Committee (JBC), the next critical step in the process.

If the JNC, after their thorough review and vetting process, recommends an applicant for appointment to a judgeship, the Governor’s Chief Legal Counsel then seeks the input of the JBC.   The JBC, formally established in 1961, acts as an independent reviewer to check the qualifications of individuals under consideration for appointment to judgeships by the Governor.  It is governed by a set of rules, which state its purpose is to “review, evaluate and report” on the qualifications of potential appointees, in order to assure a “competent, principled judiciary.”

The JBC is a 25 member committee chaired on an alternating basis by representatives of the Boston Bar Association and the Massachusetts Bar Association.  It is comprised of a diverse body of practitioners from every county and a majority of specialty bar associations within the state.  Members of the committee are non-partisan and generally serve for staggered three-year terms.  Participating bar associations are encouraged to appoint persons of diverse gender, age, race, color, creed, ethnic origin and sexual preference, as well as persons with disabilities and attorneys of varying experience.  The BBA’s representatives are currently Edward Colbert, the Committee’s Chair, Sara Shanahan, and Adam Sisitsky.  (Here is a full list of the Committee’s members.)

The JBC assists the Governor and the Governor’s Chief Legal Counsel by conducting its own independent review of judicial candidates in a confidential capacity, evaluating their integrity, character and reputation, knowledge of the law, professional experience, temperament, diligence, financial responsibility, and public service.   Upon completion of its due diligence process, the JBC calls a confidential, blind vote of its members to determine whether a candidate is “well-qualified,” “qualified,” “not qualified,” or there is “insufficient information to evaluate” the candidate.  A quorum of 13 members of the JBC is required to vote on a judicial candidate’s qualifications.

In the event that the JBC has returned a vote of “not qualified” or “insufficient information,” the chair must then immediately notify the candidate of the vote and afford the candidate an opportunity to be interviewed by the committee.  Following an interview, the JBC members may then reconsider their prior vote, if the majority of the members present and voting elect to conduct a revote.

After this vetting process has been completed, the Governor is free to either nominate or decline any applicant, to seek further recommendations from the Judicial Nominating Commission, or to re-open the application process.  When he is satisfied with the candidates, the Governor then makes his or her nominations to the Governor’s Council for their approval.

As we said in last month’s post, the process is built to ensure that only the best candidates become judges.  However, it all begins with you.  In order to have the best judges at the end of the process, the best candidates need to apply at the beginning.  We hope that you will spread this message to anyone who may be considering applying to become a judge in Massachusetts.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Sentences on Sentences: Reform and Dookhan Update

It was a week for sentencing discussions at the BBA.  First, an update on the Dookhan drug lab scandal, an issue we’ve spoken on a number of times (see past posts: Drug Lab Crisis Points to Larger Issues in the Criminal Justice System, Getting it Right: A Bargain at Any Price, Catching Up: Have  You Heard?), especially through the work of our Drug Lab Crisis Task Force.  The Task Force examined the facts regarding the lab crisis and related matters and released their report in early 2014, just months after chemist Annie Dookhan pled guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence for her deliberate mishandling of evidence in the Hinton drug lab.

Our Task Force made three recommendations:

  • Prosecutors, defense counsel, judges, and policy makers should continue the extraordinary joint efforts that were mounted in the aftermath of the Dookhan misconduct to promptly resolve open criminal cases related to Dookhan’s misconduct.
  • The Commonwealth needs to further enhance the auditing and oversight of drug labs and consider similar steps regarding all forensic services.
  • The Governor and Legislature ought to review funding levels for forensic services to ensure that these services are adequately funded and staffed and that effective auditing and oversight is maintained.

On Monday, in keeping with our report’s first recommendation above, the SJC held in Bridgeman v. District Attorney for the Suffolk District that individuals who pled guilty in cases with evidence that was affected by the Dookhan scandal cannot be charged with a more serious offense, nor can they receive a harsher sentence than they were originally given, if they are granted a new trial.  According to the Globe, the holding was celebrated by the defense bar and civil libertarians, but was a source of concern for prosecutors, as “ ‘convicted defendants now have nothing to lose by withdrawing their evidence-based admissions of guilt.’ ” We will continue to monitor developments related to this situation and ongoing litigation.

Shortly after learning of this decision, we were pleased to welcome Chief Judge Patti Saris of the U.S. District Court, District of Massachusetts to our Council meeting.  Having previously worked for U.S. Senator Ted Kennedy, and as a Magistrate and Massachusetts Superior Court Judge before her nomination to U.S. District Court, Judge Saris spoke with a wealth of knowledge about sentencing issues from both legislative and judicial perspectives and with state and federal experience.

In addition, she chairs the U.S. Sentencing Commission (“Commission”), an independent agency in the federal judicial branch established in 1984 and tasked with establishing sentencing guidelines and practices for federal courts, advising and assisting Congress and the executive branch in developing effective and efficient criminal policy, and collecting, analyzing, researching, and disseminating a broad array of information on crime and sentencing issues to all branches of government, academia, and the general public.  It is bipartisan by design in order to consider all viewpoints and to effectively gain buy-in from all legislators.

The Commission was a driving force behind the 2010 Fair Sentencing Act, which made a number of reforms to federal sentences for drug offenses, most notably reducing the disparity between sentences involving crack versus those involving powder cocaine.  When preparing this bill, the Commission examined mandatory minimum sentences and found that they were mostly affecting small-time criminals – drug couriers and street dealers — not the drug kingpins that Congress intended to target.  Other considerations, such as the expense of prisons and the exceedingly high rate of incarceration in the United States, also led to those reforms.

As a result the bill reduced sentence lengths, up to 20-25% for some offenses.  It also had a built-in one-year delay until its effective date, so probation offices could increase their staffs, because shorter sentences are most effective at reducing recidivism when prisoners are released into a system of support and monitoring.

Since the Act’s enactment, the Commission has studied outcomes, finding that the recidivism rate is no higher for people released from prison up to two years earlier than they would have been under the old sentencing regime.  In addition, they found that the rate of guilty pleas and cooperation with plea agreements remained the same, meaning shorter sentences did not have a negative effect on prosecutorial bargaining power or result in more trials.  In all, the Commission’s process and the bill’s provisions have been a clear success.

Chief Judge Saris also told the Council about three major sentencing reform bills gaining traction with Congress.

  • The Smarter Sentencing Act of 2015 would further reduce mandatory minimums and its reductions would also have retroactive effect. In addition, it would provide a safety valve for low-level, non-violent offenders who admit to their role in crimes, lifting the mandatory minimum sentence in favor of judicial discretion.
  • The Corrections Oversight Recidivism Reduction and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act creates a system similar to a parole board, permitting the bureau of prisons to return to the sentencing judge and ask for a reduction in sentence length. The idea is to give a second chance to people who have reformed in prison and, as a result, save money by shortening their sentences.  The bill has already passed the Senate Judiciary Committee, yet there are some concerns about the risk assessment tool it uses to determine which prisoners are best suited for sentence reductions.  The tool relies heavily on socioeconomic factors such as whether the prisoner is educated or has a home or supportive family.  It also puts a lot of pressure on judges, who have the final say (and potentially blame) as to who qualifies for a sentence reduction.
  • The Justice Safety Valve Act of 2015 retains mandatory minimum sentences, but gives judges the freedom to stray from the mandatory terms if they find strong mitigating factors.

These bills provide legislators with different options for sentencing reform.  Not everyone is opposed to mandatory minimum sentences.  Many support the uniformity they provide.  However, there appears to be consensus that reform is necessary because current mandatory minimum sentences are too long and applied too broadly.

Underlying this debate are concerns about recidivism and new evidence that longer prison sentences may actually be detrimental to a person’s ability to re-enter society and avoid future criminal activity.  Some states are working on diversion programs, giving people who have committed serious crimes, but who don’t have major records, the ability to take part in lengthy probation terms.  If they successfully complete all of the tasks required of them, these individuals can have their records wiped clean.

In addition, collateral consequences play a role in recidivism discussions.  These include limits on securing housing and jobs, as well as other obstacles that prisoners face upon their release.  There is an increasing understanding that these collateral consequences may be so harsh that they prevent people from successfully re-entering society.  Addressing these problems may become a focus of future bills.

In all, we learned a lot about sentencing this week, from an update on the Dookhan case to a Council presentation by Chief Judge Saris on federal legislation.  We at the BBA continue to oppose mandatory minimum sentences and advocate for sensible, cost-effective reforms.  We are committed to monitoring reforms in this area and keeping our members informed of any progress.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

The Public-Private Pairing Behind Civil Legal Aid

As we look forward to the Boston Bar Foundation’s (BBF) popular Passport to Pairings event (for a fun two minute diversion, our Voices of the Bar page asks, “What Is Your Favorite Dynamic Duo?”), it is worth considering legal aid from the same perspective.  In many ways, both monetarily and in service, civil legal representation is a public-private partnership.

We talk all the time about the importance of legal services funding and the findings of our Investing in Justice report.  The report gives the full picture of legal services funding, explaining how a drop in IOLTA, due largely to low interest rates, coincided with a growing number of residents struggling to get by, and the increased complexity of laws and the courts.  All of this combines to place significant limits on access to justice for many individuals facing challenges relating to life necessities, such as shelter or personal safety.  These problems persist despite the combined efforts of the public-private partnership.  The report also proves that additional funding for legal aid results in a positive return on investment, saving the state on back-end costs such as emergency shelter and medical services, while also stimulating the economy by bringing more money into the state through federal benefits.

The Legislature, representing the public aspect of this partnership, has long supported civil legal aid.  On Tuesday, the Senate Ways and Means Committee released its budget proposal.  We were pleased to see increases over the House budget for CPCS ($3 million more) and the Trial Court (about $11 million more – enough to rule out the need for staff reductions) and a slight increase over last year’s funding level for legal services funding ($268,500).  The Senate process continues with floor amendments.  Senator William Brownsberger is sponsoring a $5 million amendment, seeking a total of $20 million, for the MLAC line item (0321-1600) from the Senate.  We strongly urge you to contact your Senator today and ask him or her to vote for the Senator Brownsberger MLAC amendment.  This may be our last chance to make the case for civil legal aid during this budget cycle.

From a funding perspective, both the Legislature and the bar support legal aid.  To start with, attorney registration contains an “opt-out” contribution whereby attorneys donate $50 to support legal aid unless they opt-out.  This alone raises about $1.1 million annually for MA IOLTA.  Some attorney fees also provide modest additions, such as roughly $200,000 for pro hac vice admission of out-of-state attorneys to take cases in Massachusetts.

While the Legislature has generously funded civil legal aid for decades, attorneys also voluntarily contribute millions of dollars.  They give this money to fundraising drives of agencies like Greater Boston Legal Services (GBLS) and Community Legal Aid (CLA) as well as to foundations like the BBF and the Massachusetts Bar Foundation.

Unfortunately, these foundations historically granted money they received from IOLTA funds.  They continue to do so, but as IOLTA has dropped, so has their funding capabilities.  As a result, the total legal services grants awarded by the BBF have plummeted from just under $2 million in FY2007 to $825,500 in FY2014.  To address this huge shortfall, the BBF increased the amount of its own funds directed to civil legal aid grants by over $100,000 in each of the last several years, to the point that it funded over 46% of its FY14 grants.  Since 2009, the BBF has dedicated over $2.2 million of its own funds to legal services grants.

In addition, the private bar also donates millions of dollars’ worth of pro bono hours.  Under the Massachusetts Rules of Professional Conduct, lawyers are expected to donate at least 25 hours per year of their time to provide free legal services to those in need.  Very few professions have any comparable standards, and Massachusetts lawyers embrace this role.  We conservatively calculated that in 2013, lawyers in the state provided in excess of 82,000 pro bono hours through four legal aid providers alone, at a value of more than $17.6 million.  This is likely only a fraction of the full amount of pro bono services provided in the state.

As you can see, both sides are doing their part:  The Legislature generously increases MLAC funding each year, even during tough economic times, and the private bar donates its time and money.  Yet there is still a long way to go.  With 58,000 individuals turned away from legal services providers in the last year due to lack of resources, everyone needs to step up.  We applaud the Legislature for the generous monetary support we know they will provide in FY16.  We urge the bar to keep up the great work and to take on one more task – please ask your Senator to vote for Senator William Brownsberger’s $5 million budget amendment in the Senate.  With this public-private partnership, we know civil legal aid can’t lose!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Essential to our Mission: Funding the Judiciary

Amid all the talk of civil legal aid thanks to the buzz created by our Investing in Justice report, we wanted to take a moment to examine one of the BBA’s other long-term priorities, the court system.  Advocacy for the courts has long been at the top of our agenda, as it so clearly fits into our mission – advancing the highest standards of excellence for the legal profession, facilitating access to justice and serving the community at large.  The courts are absolutely essential to all three of those efforts and of course make up one of our three co-equal branches of government.  BBA President Julia Huston emphasized all of this in her speech last week at an SJC event for bar association presidents, which you can read more about in next week’s Let the Record Show.

Under the leadership of Chief Justice Paula Carey and Court Administrator Harry Spence, the Trial Court is well on its way to implementing its strategic plan and has long maintained the high level of justice to which people in Massachusetts are accustomed.  With recent advancements such as court service centers, specialty courts, and the increased use of technology, it is easy to forget that just a few years ago the courts were in severe trouble.  Taking a huge funding hit in the Great Recession, the courts are only just emerging from some of the toughest times they have ever faced.  Some key information on these struggles (even more available here):

  • Trial Court staffing levels are still 16.5% lower than they were in FY08, dropping from 7,565 to 6,316. Clerical (26.7%) and probation (32.5%) positions have each plummeted since 2001.  This is a major problem as both positions are critical to the smooth functioning of the justice system.  In particular, probation officers are now tasked with doing more than ever before.  This is due in large part to current social sciences research demonstrating that probation supervision, when properly administered, can be more effective at reducing recidivism than incarceration.  However, with such low staffing levels, probation officers are pushed to their limits.  With ever expanding caseloads they struggle to give all their probationers the time and oversight they need.  Limiting the Trial Court budget not only hurts probationers, who receive less individualized attention, but also creates a potential public safety crisis.
  • Reduced funding and staffing levels have decreased the amount of service courts can provide. In 2011, due to insufficient staffing in roughly 40 clerks’ offices, courts began limiting their public hours of operation.  The hours reduction was required so that court staff could address backlogs and process new business, prepare cases for court sessions, and complete case reviews, docketing, and case processing.  While the reduced public hours scheme allowed the courts to limp along, it was not without an attendant reduction in access to justice for the public.  Such measures can save money, but they also place a burden on the public, reducing access and the courts’ physical presence in the community.  The courts were unable to resume full functionality until September of 2013, and without continued funding to retain current staff, it may become more difficult to maintain courthouses.
  • Shoestring budgets can limit the courts’ ability to build on successfully-implemented innovations. To cite two recent examples, specialty courts and programs such as HOPE/MORR, an intensive probation model that has been proven effective at reducing recidivism by providing immediate short term sanctions for probation violations, are wonderful, but not free.  Limited resources have also curtailed the expansion for Court Service Centers, which help self-represented litigants navigate the justice system, and limited language access programs, meaning non-English speakers may face even more challenges in presenting their cases.  Finally, a lack of funding has delayed technology deployment such as e-filing and digital document preservation services as well as electronic public records access.

So where are we now?  The Trial Court requested $642.4 million as a maintenance budget (the amount required to continue normal service) and offered up a number of additional “modules” (optional items to help bolster innovation, with funding tied to each specific program).  The Governor’s budget, which generally level funded nearly all line-items in an effort to fix a $1.8 billion deficit, provided only $603.3 million for the Trial Court.  The Courts responded with a statement explaining that this funding amount would jeopardize the jobs of roughly 550 employees and severely limit its ability to deliver justice.

The House Ways & Means Committee provided a substantial increase over the Governor’s proposal at $620.4 million.  After its members adopted a floor amendment for an additional $2 million, the final House budget for the Trial Court was $623.0 million.  While we were pleased to see $20 million more in the House over the Governor’s budget, this funding level would likely result in disruptions in court operations and services.

With the Senate set to release its Ways & Means budget next week, we are hoping to see further increases on that side, with $628.4 million being the minimum necessary to maintain current staff levels, though additional funding for modules would allow those important programs to move forward.  There is a possibility that the Trial Court budget will be before the Conference Committee which will ultimately determine the final funding amount from the Legislature.  After that it’s on to the Governor who will have ten days to review the budget.  He can approve or veto the entire budget, veto or reduce specific line items, veto outside 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.

There are still a number of steps left in the budget process, but the end is fast approaching.  We ask that you take a moment this week or next to contact your State Senator (Don’t know who that is? Look them up here) and urge him or her to support appropriate funding for the courts.  We will, as always, continue to advocate for court funding and keep you updated on the latest budget developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association