Monthly Archives: September 2015

Judiciary, Access to Justice, and Mass Incarceration All on the Menu at Annual Meeting

Late last week we held our Annual Meeting Luncheon and many of the themes we discuss here featured prominently.  From civil legal aid to mass incarceration to the judicial nomination process, we heard first-hand from some of the state’s top leadership about their work with the BBA and the important role the BBA plays for them.

First up was Speaker Robert DeLeo who received our Presidential Citation.

AM1

The Speaker has been a staunch supporter of both the judiciary and civil legal aid over his 25-year tenure in the State House.  The Speaker helped shape our Investing in Justice report, urging former BBA President J.D. Smeallie, Chair of the BBA Task Force to Expand Civil Legal Aid in Massachusetts, to include stories from civil legal aid recipients in the Task Force’s report, in addition to statistical analysis of those turned away and reports on potential cost savings to the state from increased investment.  We have always been impressed with his ability to see the human side of issues.

Speaker DeLeo began his speech by noting his pride in the state’s rich legal history, saying we had repeatedly “set the foundation for justice in America”.  He recognized the work of former Supreme Judicial Court Chief Justice Roderick Ireland and thanked Chief Justice of the Trial Court, Paula Carey, and current Chief Justice of the SJC, Ralph Gants, for their work on court reform and their advocacy in the Legislature.  Having led the push for court reform and the judicial pay raise in recent years, the Speaker boasted that our judiciary remains one of the best in the country, and he assured the crowd that the House remains committed to making justice a priority and to adequately funding the courts.

AM2

Next, he moved onto the BBA’s work on civil legal aid.  After praising the BBA for leadership in the legal community and partnership on Beacon Hill, he singled out J.D. Smeallie and acknowledged that the $2 million increase for legal aid in the FY2016 budget was “not what we hoped it could have been,” but represents only a starting point.  He pledged that continued investment – and ensuring that the most vulnerable, such as domestic-violence survivors and the homeless, receive legal assistance — remains a priority for the House.  Even though Massachusetts is at the forefront of providing legal aid by almost any metric, the Speaker reiterated his commitment to maintaining the high standards we have set as a national leader on both administering and providing access to justice, saying that, as our Task Force demonstrated, it is not only the right thing to do but also fiscally prudent.

AM3

We then presented Chairman John Fernandes with our Distinguished Legislator award, honoring him for his work as a member of that civil legal aid task force, as House Chair of the Joint Committee on the Judiciary, and as a leader on alimony reform and on post-conviction access to forensic testing.  He humbly noted that when we honor him with a personal award, we are intrinsically honoring as well the countless others who are always necessarily involved in the process of getting legislation enacted.  On the alimony statute, for example, he cited the work of Chief Justice Carey and members of the bar.

Chairman Fernandes thanked the BBA for calling attention to the growing access to justice gap and for working to get the attention of legislators, especially non-lawyers who may not have witnessed first-hand the struggles of either pro se litigants or the courts in handling them.  The BBA, he said, is unlike self-interested single-issue advocates, because we involve ourselves with issues such as these.  He praised the BBA for being relentless on civil legal aid, and for helping him make the case to the non-lawyers among his colleagues.  And he promised that “we will not rest until there is access to justice for all who need it.”

AM4

Finally, our keynote speaker, Governor Charlie Baker, addressed the more than 1,300 attorneys in attendance.  Though he is not a lawyer, the Governor spoke fondly of the many lawyers he has worked with and learned from over the years, including his current Chief Legal Counsel, Lon Povich – another member of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  He then discussed his theory of governing, an overarching theme of his speech.  He explained that being a Republican Governor in a Democratic state is rife with challenges, but also that he embraces working with others, even those with vastly different opinions.  He cited the letters of BBA founder John Adams and his wife Abigail, adults who found ways to disagree without being disagreeable, as a model for the way government should function — the ideal outcome being a “combo platter” that draws from everyone’s ideas.  In his own words, governing is finding solutions.

He offered as an example the opioid epidemic, an issue on which the Governor teamed up with Attorney General Maura Healey (also in attendance that day), and the Secretary of the Executive Office of Health and Human Services, Marylou Sudders, to issue his task force report earlier this year.  He is looking forward to continuing his work with the Legislature, health care community, legal community, and justice system to address the many facets of this complex and overwhelmingly large issue.

That same philosophy of governance also carries into civil legal aid.  The Governor acknowledged the inadequacy of relying, to a great extent, on IOLTA to fund civil legal aid.  That program, explained in more detail in our Investing in Justice report, collects the interest on all funds lawyers hold on behalf of clients, such as while conducting deals, that sits in a bank account for a brief period of time, and directs it to legal aid.  This has been an invaluable funding source for civil legal aid over the years, but has plummeted from nearly $32 million in 2007 to only around $5 million annually today due to a decrease in the number of deals and a collapse in interest rates following the 2008 recession.  This experience has revealed a fundamental flaw – when times are toughest, and therefore the need is greatest, funding for civil legal aid from this extremely important source is generally at its lowest.  The Governor described his hope to begin an open-minded dialogue on finding a way to improve legal aid funding and stabilize its sources.

AM5

The Governor thanked former BBA President Paul Dacier for serving as Chair of the Judicial Nominating Commission.  As we have stated here in the past, the key to continuing our proud history of great and diverse judges is to begin with great and diverse applicants, and both the Governor and the JNC are committed to this outcome.  “I may not be a lawyer,” he stated, “but I want to be remembered for appointing great judges … with your help.”

He then discussed justice reinvestment, the theory that we can use the savings from reducing incarceration rates toward keeping people from entering, or returning to, the justice system through alternative programming.  He noted that, although Massachusetts ranks well nationally, incarcerating people at roughly ½ the national rate – which he described as a tribute to many in the room — we can still learn from other states.  For this reason, he teamed with Chief Justice Gants and legislative leaders to request a review of Massachusetts policies by the Council of State Governments.  They hope to learn what works well in the Commonwealth and what they should change to help reduce recidivism and assist people in re-entering society.  The Governor said he looks forward to examining all the potential solutions and took the opportunity to highlight his willingness to consider a measure to end the practice of suspending driver licenses for drug offenders whose crimes weren’t motor-vehicle related – one that he hopes and expects to be able to sign into law.

Finally, the Governor closed by seizing the opportunity of our Annual Meeting – and capitalizing on its theme of civil legal aid – by continuing the tradition of declaring October to be Pro Bono Month in Massachusetts.

In all, it was an impressive afternoon and we look forward to seeing the solutions these fine leaders devise to the issues they identified.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

From Boston to the Vatican and Beyond: Haskell Cohn Honoree Chief Justice Rapoza

The BBA is proud to be honoring Appeals Court Chief Justice Phillip Rapoza with the 2015 Haskell Cohn Award for Distinguished Judicial Service on September 24 (click here for tickets and details).  The award was established by Mintz Levin for one of its founding members, Haskell Cohn, in 1975 in honor of the 50th anniversary of Cohn’s admission to the bar.  It is presented to a member of the Massachusetts judiciary, or a resident of Massachusetts who is a member of the Federal Judiciary, who has distinguished himself/herself in a manner that calls for special recognition.

A tax and estate planning expert, Haskell Cohn served as BBA President from 1969 to 1971.  He was known for espousing many of the tenets central to the BBA’s mission.  As BBA President, he helped spark a fundraising drive to raise money for law school scholarships for students of color.  He urged lawyers to go beyond the narrow confines of the profession and was a driving force behind a BBA effort to help expand affordable housing stock in Boston.  He also cared deeply about the quality of the judiciary and served as Chair of the Joint Bar Committee.

The 31st Haskell Cohn Award recipient, Justice Phillip Rapoza, served as Chief of the Appeals Court from October 17, 2006, to June 30, 2015, when he retired from the judiciary.  He had served on the Appeals Court since 1998, and prior to that was a District and Superior Court Judge since he was appointed to the bench in 1992.  As Chief Justice, he played an important role in setting many key precedents for Massachusetts.  He also served admirably as chief administrator, managing all of the other Appeals Court justices and staff.  Finally, he worked to modernize the appeals court as a strong proponent and early adopter of electronic filing technology.

Justice Rapoza’s influence extends far beyond Massachusetts.  He is the grandson of Portuguese immigrants and is a leader in the Portuguese-American community in Massachusetts.  He is the first Portuguese-American judge to serve at the appellate level in Massachusetts. He served on the US Council of Chief Judges of State Courts of Appeals, lead the Commission for Justice Across the Atlantic, a judicial exchange program between the US and Portugal, and is President of the International Penal and Penitentiary Foundation.  In his role with the IPPF, he was recently invited to address the pope.  He used this opportunity to speak on the rehabilitation and reintegration of criminals, an issue we have discussed here a number of times beforeIn his speech he described the negative impact of high incarceration rates globally and the lack of rehabilitative opportunities for inmates.  He encouraged justice reinvestment through the use of alternative sentences, intermediate sanctions, and diversionary programs that would benefit the individual, their family, and the community at large.  The BBA has long supported these sorts of measures to end mass incarceration and we are pleased to see Justice Rapoza addressing them on a world stage.

Justice Rapoza is also a leader in the field of international criminal justice, working to spread the rule of law in the developing world, including serving on UN-backed war crimes tribunals in East Timor and Cambodia.  From 2003 to 2005, he took an unpaid leave of absence from the Appeals Court to work for the United Nations, serving in East Timor as an international judge and coordinator of the Special Panels for Serious Crimes.  The Special Panels was a war crimes tribunal established by the UN to prosecute crimes against humanity and other serious offenses committed during the Indonesian occupation of East Timor.

Justice Rapoza has demonstrated his remarkable commitment to justice and the rule of law both at home and around the world.  His work illustrates how a state court judge can have an influence around the globe, and he stands as a reminder of the excellence of the Massachusetts judiciary.  We look forward to presenting him with our highest recognition for the judiciary, and we hope to see you there.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Meet Our Annual Meeting Honorees

We are all excited about this year’s BBA Annual Meeting Luncheon, which takes place next Friday, September 18, at the Seaport World Trade Center. (Tickets are still available. Further info here.)

The keynote speaker, as you’ve probably heard, is Governor Charlie Baker. But here, let’s throw a spotlight onto the two legislative honorees at the event, and the pivotal roles they have played in fighting for BBA priorities.

Speaker Robert DeLeo — a member of the state’s House of Representatives since 1991, and that body’s leader since 2009 – will receive a Presidential Citation from BBA President Lisa Arrowood. This award will be bestowed in recognition of his leadership in securing the enactment of a number of major legislative reforms that have maintained and built upon Massachusetts’ role as a national policy leader.

Speaker DeLeo has been a tireless supporter of both the judiciary and civil legal aid. It is in large part a testament to the Speaker that the courts have flourished in recent years, as he worked with former Supreme Judicial Court Chief Justice Roderick Ireland on restructuring the court system and overseeing a much-needed judicial pay raise that will help assure that the Commonwealth continues to benefit from the highest-caliber judges. The Trial Court is still in the midst of implementing its recent strategic plan, and the justice system as a whole is again able to innovate — for example, through the implementation and expansion of specialty courts, court service centers, and probationary programs.

Speaker DeLeo has long been an advocate for civil legal aid. Under his leadership, the House has repeatedly passed budgets providing funding increases for the Massachusetts Legal Assistance Corporation. Always concerned about the human side of public policy, the Speaker pushed the BBA Statewide Task Force to Expand Civil Legal Aid to include in its 2014 Investing in Justice report accounts of real people benefitting from legal services. While he certainly valued and appreciated the report’s ground-breaking econometric studies and statistical analyses of current legal-aid turn-away rates and the potential return on investment from legal-aid funding, he never lost sight of the real reason legal aid is important: It helps people secure and preserve life’s necessities, such as shelter or protection from abuse.

Our Distinguished Legislator Award goes to Representative John Fernandes, a House member since 2007 and currently the House Co-Chair of the Joint Committee on the Judiciary. Chairman Fernandes has been the force behind many positive changes in the state. He co-chaired the Legislature’s Alimony Reform Task Force, which wrote and secured passage of sweeping reforms to modernize the Massachusetts alimony law, now hailed locally and nationally as a model for alimony reform. He also sponsored, and successfully shepherded through to enactment, the Post-Conviction Forensic Testing Law that provided a process by which individuals convicted of serious crimes can obtain access to testing of evidence such as DNA that may prove they were wrongfully convicted. This effort built directly upon the work of a BBA task force and their Getting It Right report.

In 2013, Representative Fernandes joined the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts. He was an integral member of the Task Force, providing many insights and strategic counsel on the interplay of civil legal aid and the Legislature. Since then, he has been one of the leading voices for MLAC funding, which culminated in an additional $2 million in the FY2016 state budget appropriation.

As Co-Chair of the Judiciary — a Committee which considers many BBA bills, among the hundreds before it each session — Representative Fernandes is already making an impact, and we look forward to continuing to work with him in this new role.

Similarly, we look forward to seeing all of you next Friday at the Seaport World Trade Center, as we honor these two outstanding elected officials before hearing from the Governor. Please join us.

— Michael Avitzur
Government Relations Director
Boston Bar Association

A First Step in Reversing “A Troubling Trend”

A couple of weeks ago, we posted the first of our two part SJC review posts on political free speech in the Lucas case.  This week we are going to look at another important decision, Commonwealth v. Tyshaun McGhee, upholding Massachusetts’ 2011 anti-human trafficking law.

The case alleged that the defendants approached three women, took and posted pictures of them in online advertisements, drove them to various locations to have sex with men who responded to the ads, and retained some or all of the money the women received as payment.

The defendants filed a motion to dismiss the sex trafficking charges on the grounds that the trafficking statute is unconstitutionally vague and overbroad, both on its face and as applied to them, and that the definition of “commercial sexual activity” is also overbroad.  In addition, they argued that because the statute lacks an element of force or coercion there is a risk that it will be enforced arbitrarily.

The statute at issue criminalizes “sexual servitude, forced labor, and organ trafficking.”  The relevant portions for this case are codified at M.G.L. c. 265 §§ 49, 50 and state the following:

Section 50. (a) Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means, …  another person to engage in commercial sexual activity, … or causes a person to engage in commercial sexual activity … or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be punished by imprisonment in the state prison for not less than 5 years but not more than 20 years and by a fine of not more than $25,000.

Section 49 defines “commercial sexual activity” as “any sexual act on account of which anything of value is given, promised to or received by any person.”

The SJC concluded that the statute is sufficiently clear and definite and the phrase “commercial sexual activity is “amply defined” (17).  The statute provides fair notice of the type of conduct it criminalizes, and it does not need to include an element of force or coercion to avoid vagueness as “the clear and deliberate focus of the statute is the intent of the perpetrator, not the means used by the perpetrator to accomplish his or her intent” and “the Legislature has determined that whether a person being trafficked for sexual servitude has been forced or coerced into engaging in such activities is immaterial for purposes of ascertaining whether a criminal act has been committed.” (17 emphasis added).  In addition, the mens rea requirement signified by the use of “knowingly” in the statute provides sufficient protection against arbitrary enforcement of the statute (19).

The Court also reasoned that the statute is not overbroad because it only prohibits individuals from “knowingly undertaking specified activities that will enable or cause another person to engage in commercial sexual activity” (23).  It found no problem with the definition of “commercial sexual activity,” construing it with consideration of the plain language and legislative intent to refer to “any sexual act for value that involves physical contact” (25).

In the words of Alec Zadek, Mintz Levin, co-chair of the Human Trafficking Group of the BBA’s Delivery of Legal Services Section, this is “truly a fantastic result and affirms the hard work of everyone who worked on the legislation.”  Zadek has an active pro bono practice focusing primarily on survivors of sex trafficking and domestic violence, so he has seen firsthand the importance of this case.

Julie Dahlstrom, Clinical Legal Fellow in the Human Trafficking Clinic at Boston University School of Law and member of the BBA’s Immigration Law Section Public Service Committee, co-authored an amicus brief in the case on behalf of a number of domestic violence and human trafficking interest groups.

The brief explained the pervasiveness of the human trafficking problem and made many arguments echoed in the SJC holding defending the constitutionality of the Massachusetts statute.  She noted that the “case has tremendous implications for human trafficking survivors and the Commonwealth.  It means that those who knowingly harbor, recruit, and otherwise obtain women for sexual exploitation cannot operate with impunity.”

But this case is only a first step, in her view –

“The facts of this case bring to light a troubling trend. In Boston, there young women who are the fringes of our society – who are homeless and lack viable employment options. These women are exploited by men who seek to profit from and violently abuse them. The state human trafficking statute is an important tool in this fight. But we still need lawyers and others involved. Lawyers to play a key role to ensure that these women have effective representation, the protections they deserve, and the support necessary to exit commercial sexual exploitation.”

To that end, we encourage everyone to participate in our upcoming event, Justice for Trafficking Victims: Civil Litigation, Vacatur, Criminal Restitution and the Pro Bono Bar.  Dahlstrom will speak as will Martina Vandenberg from the Human Trafficking Pro Bono Legal Center on human trafficking and opportunities for pro bono attorney involvement.  With your help, we hope to shed light on human trafficking and hope that the McGhee case will serve as useful precedent.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association