Monthly Archives: August 2015

Who’s Leading the Fight Against Mass Incarceration?

We are thrilled that Roca will be the 2016 BBA Adam’s Benefit’s Public Service Honoree.   Roca is a wonderful organization that works to “disrupt the cycle” of incarceration and poverty by helping young people in the Greater Boston area transform their lives.  Roca works with at-risk youths aged 17-24, many of whom are on the streets, have a history of legal problems, are involved in gangs, have dropped out of school, and/or are young parents.  The organization intervenes based on a scientific, data-driven model that has been proven effective at getting these young people the support, education, and jobs they need to stay out of trouble, earn a living, and have a positive impact in their communities.  Most importantly, Roca’s system works. Since its founding in 1988, the organization has helped more than 18,000 young people change their lives.

Roca’s important work complements our own policy efforts.  We have written before about the BBA’s position opposing mandatory minimums and our efforts to remove them in Massachusetts.  Earlier this summer, we were part of the discussion in the legislature, when BBA President Julia Huston provided testimony at a public hearing on mandatory minimum drug sentences.  In recent weeks, we have seen some momentum building around this issue on Beacon Hill.  We learned that Governor Baker, House Speaker Robert DeLeo, Senate President Stanley Rosenberg, and SJC Chief Justice Ralph Gants all signed onto a letter asking the U.S. Department of Justice and the Pew Center for the States to review and analyze Massachusetts criminal-justice policies, making recommendations on what works well, what doesn’t, and what changes can be made to improve the system. Though the timeline for this report remains unclear, we are hopeful it can make a difference this legislative session (watch a video of the Governor speaking about this study).

Senate President Stanley Rosenberg has been particularly vocal about the need for so-called “justice reinvestment” – changing policies to reduce incarceration and using the attendant monetary savings on programs and initiatives to further that cause.  By many accounts it costs around $40,000 a year to incarcerate an offender, while other programs, such as parole, are far less expensive.  Rosenberg points to states such as Texas, Washington, and Oregon as models of this movement, and is pushing for Massachusetts to follow their lead.  So what have these states done to fix their sentencing models?


Texas managed to dramatically reduce its prison population and incarceration rates with changes only to its incarceration policies, and not its sentencing regime.  Until recently, the number of inmates in Texas was booming: the state’s prison population grew from 50,000 in 1990 to 173,000 in 2010.  Texas was building prisons as fast as it could, but still many prisoners were transferred to for-profit prisons in other states.

Recognizing that this growth was unsustainably expensive, Texas lawmakers devised a treatment system.  They increased the amount of space in drug treatment programs and created intermediate sanction facilities, all at a fraction of the cost of warehousing inmates.  They also increased the amount of pre-trial diversion programs for people suffering from mental health illnesses and drug addiction.  These reforms have resulted in large drops in the prison population, the closing of a number of prisons, and a nearly 6% drop in the recidivism rate.  Crime is now at the lowest rate since 1968 and the closure of three prisons has saved $3 billion.


While Washington may have been a leader in drug law reform, becoming one of the first states to legalize recreational use of marijuana in 2012, it still has a way to go with sentencing reform.  According to a recent study, one in five prisoners in Washington is serving a life sentence, compared to one in nine nationally.  This is largely the result of the 1984 Sentencing Reform Act, which eliminated parole, and two subsequent voter-approved initiatives – the 1993 “three strikes” law, mandating life without parole for three serious felony convictions, and the 1995 Hard Time for Armed Crime law, requiring mandatory sentences for gun crimes.

The report also found a disparate impact on racial minorities (28% of those serving life without parole sentences are African-Americans although they comprise only 4% of Washington’s population) and exorbitant expense (an average life sentence costs $2.4 million per prisoner).

The Legislature appears to be taking notice.  Earlier this year, the House approved a bill to amend the “Hard Time for Armed Crime” law to give judges more discretion.  If enacted, the bill would permit judges to depart from the currently mandatory additional 18 to 60 month prison time in all every gun-related felonies if they feel the mandatory sentence enhancement results in a “clearly excessive” sentence.


In only the last couple of years, Oregon has made major strides to curb its mandatory sentencing regime.  The state had operated under its so-called Measure 11 structure since 1994, whereby there were long mandatory sentences for 16 designated violent and sex-related offenses, “earned time” was prohibited, and juvenile offenders were tried in adult court.

As a result, the state built a prison system widely recognized as a national leader – “the system uses prison sparingly, locks up the right people and helps keep them from reoffending.”  Even though Oregon ranked well nationally in many statistics – holding the lowest recidivism rate, and ranking 33rd nationally in incarceration, incarcerating people at a rate that was 25% lower than the national average – it was still spending too much.  In 2013, lawmakers approved reforms to Measure 11, cutting sentences for crimes such as marijuana possession and felony driving, giving judges more discretion.  The result has been a decrease in prison populations and some savings that are being funneled to local governments for crime prevention measures.

As you can see, the sentencing policies for each of these states have their pros and cons.  They are all worth considering as Massachusetts prepares to reform its own policies.  We look forward to becoming the model for other states, and, hopefully, one without mandatory minimums.  In the meantime, we hope you will join us in a few months when we honor Roca for their outstanding work to keep young people out of the criminal justice system altogether.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

SJC Declines “An Invitation to Mischief” on Political Speech

Though August may be a quiet time at the State House, it has been anything but for the justices of the Supreme Judicial Court (SJC).  In the first two weeks of this month, the state’s highest court has issued two major decisions with particular interest for our members.  On August 6, the Court declared unconstitutional a 1949 law that criminalizes certain false statements used in political campaigns.  One week later, the Court upheld the 2011 anti-human trafficking law against its first challenge.    This week we will break down the free speech case and next week we will discuss human trafficking.  Both are important cases for the state and set key precedents that will shape their areas of law going forward.

During his state legislative campaign in the fall of 2014, Second Barnstable District Representative Brian Mannal was facing a challenge for his legislative seat.  In October, the Jobs First Independent Expenditure Political Action Committee (PAC) distributed brochures alleging that:

“Brian Mannal chose convicted felons over the safety of our families.  Is this the kind of person we want representing us?”;

“Helping Himself: Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals.  Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders”; and

“Brian Mannal is putting criminals and his own interest above our families.”

The quotes refer to a bill sponsored by Mannal, a former public defender, which would have notified indigent sex offenders of their right to a public defender before Sex Offender Registry Board hearings.  Mannal has never represented sex offenders at board hearings.

In late October, approximately two weeks before the election, Mannal responded by filing a criminal complaint against Melissa Lucas, the PAC’s treasurer, alleging that she knowingly published false statements designed to defeat Mannal’s candidacy in violation of M.G.L. c. 56 § 42.  In November, Mannal won the election by a mere 205 votes.

Eight months later, the SJC weighed in, unanimously holding in Commonwealth v. Melissa Lucas that the law in question is an unconstitutional restriction on free speech.  The court reasoned that the law was a content-based speech restriction and thus merited strict scrutiny review, meaning the government must establish that the statute is both necessary to serve a compelling state interest and narrowly tailored to achieve that end.

The Commonwealth addressed the issue in two ways, arguing both that the statute does not apply because the statements at issue are opinions that cannot be proven false and also that the statute is constitutional because it only reaches fraudulent and defamatory speech, forms of speech that are not protected under the First Amendment.

While the court stated that free and fair elections may be a compelling interest (though they are not so in this case), the Lucas opinion is clear that § 42 is not necessary to serve that interest.  Though the statute could be used to punish defamatory or fraudulent speech, it casts a far wider net, reaching other forms of speech (12-13). The court explains that the statute can “be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech” (26-27).  The best protection against the speech contemplated in the statute is counterspeech, the “free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market” (29).  The court concludes that § 42 is “antagonistic to the fundamental right of free speech” (31) and declares the statute invalid.

However, social science may take issue with the court’s ruling.  As explained in the recent Boston Globe op-ed, “Confronting and Refuting Political Lies,” lies in political speech may have a major impact on the public and can be far more difficult to refute than suggested by the “marketplace of ideas” theory.

The lie itself usually opens up a new arena for discussion and, by being first on the ground, sets up the mental frame for the argumentation to come. Therefore, those wishing to refute a political lie have a two-part task: (1) They must convincingly articulate the truth and (2) they have to replace the existing frame of discussion with a more accurate one.

Those tasks are very difficult to accomplish.

Author Martin Evans, an organizational psychologist and professor emeritus at the University of Toronto, goes on to explain that the problem can compound itself, whereby when a candidate denies a lie, it only serves to reinforce the issue in people’s minds.  The best solution is actually to reorient the original frame by basically changing the subject, a challenging and undoubtedly frustrating thing to do.  In this context, § 42 comes from a good place – in theory protecting both candidates and the public from this situation.  However, as the SJC ruled, the statute is overly broad.  Could it be revised to reach only unprotected fraudulent and defamatory speech?

BBA Council member Jeff Pyle, Prince Lobel, who practices in media and First Amendment law, declared the decision “a resounding victory for the First Amendment.”  He believes that § 42 is “flatly unconstitutional” and that having such a law “is only an invitation to mischief,” opening the door for candidates to “strategically seek criminal charges in order to divert their opponent’s resources and distract from the campaign itself.”  Contemplating potential next steps by the Legislature, Pyle explained:

In my view, the Legislature also should not try to rescue the statute by limiting it to defamation or fraud.  To be actionable, a defamatory statement about a political candidate would have to be made with “actual malice,” meaning knowing or reckless falsity.  Other states have had laws that, unlike section 42, limited coverage to statements published with actual malice, but those statutes have been struck down nonetheless by such courts as the Court of Appeals for the Eighth Circuit (in the case of Minnesota’s statute), a federal district court in Ohio, and the Washington Supreme Court.  Limiting the statute to defamatory statements wouldn’t solve the underlying fact that it is counterspeech, not criminal process, that needs to be applied to false campaign claims.  Similarly, “fraud” is a poor fit to this kind of problem, because it requires not just a false statement, but inducing reliance to one’s detriment.

We will keep an eye out for any Legislative follow-ups and look forward to being part of the discussion should there be any proposed fixes.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Sneak Peek at Beacon Hill This September

The State House has gone quiet this month, legislators having recessed on July 31 in a flurry of budget overrides.  The BBA is relatively quiet, with fewer events on the calendar and with our sections and committees having largely wrapped up their work for the current program year.  Indeed, it seems at times that the city of Boston has become quieter, with so many on vacation and college students yet to return.

So now seems a good time to take a peek at what’s on tap for the coming months, once Beacon Hill, the BBA, and Boston as a whole spring back to life.

  • The start of September brings with it leadership changes at the BBA, starting at the top, where Lisa Arrowood will become President, taking over the reins from current President Julia Huston. Each fall, the incoming President holds individual meetings with the Chief Justice of the SJC and the chiefs of each of the departments of the Trial Court, as well as with the federal judges leading the U.S. Circuit, District, and Bankruptcy Courts.
    • Three of those chiefs will be new this year: As noted below, the Appeals Court and Housing Court will be under new leadership. And Judge Jeffrey Howard earlier this year became the chief judge of the First Circuit.
    • We are gearing up now for those meetings, which offer a chance for us to share our priorities and learn more about how we can help the courts with their mission.
  • After Labor Day, the Legislature begins formal sessions again, as well as continuing public hearings on the thousands of bills that have been filed this year. The Judiciary Committee, which holds public hearings on more bills than any other legislative committee, has been understandably very busy thus far, and it is expected to return to work on September 16 with a hearing on criminal-procedure legislation.
  • On September 2, the Governor’s Council will take up the nomination of Paul Treseler, chief of the Narcotics Case Integrity Unit in the Suffolk County District Attorney’s Office, to chair the state’s Parole Board. This week, Governor Charlie Baker nominated Treseler to replace Charlene Bonner, an appointee of Governor Deval Patrick.
  • That will be the second major confirmation hearing for the current Council. Led by Lieutenant Governor Karyn Polito, the Council last month approved Judge Scott Kafker’s nomination to take over as Chief Justice of the Appeals Court.
  • Another significant nomination is forthcoming from the Governor, with the help of the Judicial Nominating Commission: Housing Court Chief Justice Steven Pierce has announced that he will be stepping down in September, after 10 years in that post.
  • The BBA is regularly called upon by the courts to offer comments on proposed rule changes, and we are at work right now gathering input on two such requests concerning ethical issues:
    • In July, the Supreme Judicial Court (SJC) Standing Advisory Committee on the Rules of Professional Conduct’s requested comments on proposed revisions to Rules 5.4 and 5.5 of the Rules of Professional Conduct.  The change to Rule 5.5 would bring the Massachusetts rule mostly in line with the ABA Model Rule, permitting lawyers from foreign countries who are in good standing in their home country to act as in-house counsel to an employer in Massachusetts.  The change to Rule 5.4 would remove some sub-clauses in the interest of simplification.  These changes are currently being considered by the BBA’s Business Transactions and International Law Sections and its Ethics Committee.
    • In addition, the BBA and its Ethics Committee are considering commenting on proposed amendments to SJC Rule 3:11 giving the SJC the ability to issue advisory opinions and to review opinions written by the Committee on Judicial Ethics (currently the sole reviewer of these issues).  They would also permit individuals and groups of lawyers to solicit advisory ethics opinions, whereas the current rule limits this ability to judges.  These proposed amendments seem a natural next step as the SJC continues to revise the rules pertaining to judges.  The BBA has already commented on this process, and generally applauds the SJC for expanding the roles judges can play as members of the bar.  We look forward to considering both of these proposed rule changes and are happy to be part of this inclusive process.
  • Momentum continues to grow toward criminal-justice reform: This month we learned that Governor Baker, House Speaker Robert DeLeo, Senate President Stanley Rosenberg, and SJC Chief Justice Ralph Gants all signed onto a letter urging the Council of State Governments and the Pew Center for the States to work with Massachusetts on a review and analysis of our criminal-justice policies, making recommendations on what works well, what doesn’t, and what changes can be made to improve the system. It remains unclear what the timeline is for such a report – and specifically whether it can be done before the current legislative session ends next July.

We will continue to keep you informed on these issues as they develop.  In the meantime, we hope you are enjoying the summer!

— Michael Avitzur
Government Relations Director
Boston Bar Association

EOPSS Revises Rules for Attorney Access to Prisons

For those who have ever visited a correctional facility, you know that there are a host of security measures required upon entry. The Code of Massachusetts Regulations regarding attorney access at Massachusetts Correctional Institutions (103 CMR 486) is designed to facilitate inmate access to proper legal counsel while accommodating security concerns at prisons. Its purpose is to lay out standards to achieve that balance for attorneys, law students, and paralegals, as well as investigators and interpreters.

The Executive Office of Public Safety (EOPSS) in cooperation with the Department of Corrections (DOC) recently revised CMR 486 in response to concerns raised by several parties—including the BBA, the MBA, the ACLU of Massachusetts, Prisoners’ Legal Services, and the Committee for Public Counsel Services—with regard to the inconsistent application of these rules and overly intrusive searches of attorneys. Female attorneys, specifically, have found themselves subjected to seemingly arbitrary and unnecessarily invasive searches at prisons, often after an underwire bra triggers a metal detector in the course of an initial scan.

In response to an invitation for comments from EOPSS, the BBA and its Criminal Law Section reviewed the revisions to 103 CMR 486 and found the efforts to be worthwhile. The BBA believes that the revised rule will function to standardize applications of the CMR—alleviating concerns about intrusive searches of attorneys and facilitating attorney visits to clients at correctional institutions. We hope the final rules will be uniformly enforced by all DOC facilities and that support training for all involved personnel will ensure proper implementation. One thing we noted, however, is that 103 CMR 486 applies only to attorney visits at state prisons. We encouraged EOPSS to consider extending the revised rule to county correctional facilities as well, in order to ensure uniform proper treatment of attorneys at all correctional institutions in Massachusetts.

The Criminal Law Section was also largely supportive of the revised rule, calling it “generally fair, reasonable, easy to follow and an improvement over the existing CMR.” While the Section was pleased to see increased record keeping requirements—such as incident reports stating an articulable reason for a pat down search of an attorney whenever one is requested by an officer,—some members voiced concerns that this additional paperwork might be burdensome or impracticable. Moreover, while members were also pleased to see a general presumption supporting the reasonableness of an attorney’s explanation for the cause of any interference indicated by the metal detector scan, individuals hoped that these changes would not overly limit correction officers in keeping prisons safe. Other concerns included the fact that the revisions did not address rules regarding specific articles of clothing—particularly women’s clothing—that have been inconsistently implemented and enforced at certain correctional facilities.

On Tuesday, we attended the EOPSS hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives. Like the BBA, those who testified generally supported the revisions, but took the chance to offer some further suggestions based on their personal experiences and perspectives.

EOPSS hearing picture2

Victoria Kelleher testifying while Michael Hussey (MACDL) looks on.

First to testify was Lauren Petit on behalf of Prisoners’ Legal Services (PLS), which viewed the changes as largely positive. Nonetheless, PLS suggested that changes should also include other professionals who are supervised by attorneys, such as paralegals and interpreters. Moreover, they believed that some of the language changes may be “unnecessary” or “overkill”, noting that they appear to be geared towards limiting access. As a result, Petit asked for further clarity in the definitions section of the CMR. She also suggested that the clearance process for law students and paralegals be centralized, so they wouldn’t have to be certified by each prison individually.

Joel Thompson of the Harvard Prison Legal Assistance Project, also welcomed the changes, but made proposals to move the revisions even further. He asked the panel to strive for consistency and clarity, speaking to the discrimination that female law students face when entering correctional facilities. The group sends 150 law students into prisons each year, but “every once in a while,” he said, “there’s an interaction that’s less than optimal,” noting that the problem seems to have worsened this year, and that female students are more likely to have difficulty gaining access. He proposed that the rule allow access to law students on the same basis as attorneys, on the grounds that they are in virtually the same position. Thompson also suggested the clarification and streamlining of the process for law students to get clearance to enter prisons.

The president of the Massachusetts Association of Criminal Defense Lawyers, Michael Hussey, raised the same concerns about consistency and equal treatment of men and women. He also testified for the easing of access to prisons for private investigators (PIs). He described PIs as essential to criminal defense and noted that the current requirements for PI access are unnecessarily burdensome (e.g., PIs are required to give one week’s notice before entry). Richard Slowe, the Chief Investigator for the Public Defender Division of the Committee for Public Counsel Services (CPCS), pointed out that CPCS staff investigators, unlike private investigators, are not technically covered by the new regulations and argued that they should be part of a central database of pre-screened visitors. Slowe also echoed the testimony of Hussey in stating that CPCS investigators should not only be allowed more accommodations (such as access to private interview rooms), but also be governed by the same rules as attorneys (as they are always supervised and are already subjected to extensive background checks).

Perhaps the most passionate testimony came from Victoria Kelleher, who works in private practice, and has been subjected first hand to what she termed “illegal searches.” She described her experiences entering prisons to visit clients as “unpredictable, stressful, and onerous” and shared how she has been turned away for wearing items such as boots and belts. These experiences only added to her concern that women are excluded for things seemingly unrelated to security (e.g. not being allowed access for wearing suit jackets with pants that do not match). Kelleher asked for more-specific definitions regarding apparel. In addition, Keller testified for further revisions that would allow attorneys to bring in files that are not necessarily “official”, but still pertinent to a client’s case. She also suggested that the DOC needs to “keep up with the times” and allow attorneys to utilize their own laptops to better defend their clients. Kelleher also recommended more training for prison security to ensure uniformity of attorney experiences and reduce delays that result when correction officers have to try to interpret the regulations. Her testimony spoke to the concerns of many female attorneys in Massachusetts who have had negative experiences with prison security.

While the revisions to 103 CMR 486 have been received positively, we will continue to monitor any further changes that may result from the BBA’s written testimony and that of the witnesses EOPSS and DOC heard from this week.

– Jing Li
Summer Intern
Boston Bar Association