Monthly Archives: February 2016

Cracking Down on Labor Trafficking

We were pleased this week to host an enlightening panel discussion on the important topic of labor trafficking.  The conversation was moderated by Alec Zadek of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, and Erin Albright of the International Institute of New England, a co-chair and member, respectively, of the BBA’s Human Trafficking Sub-Committee, which has sponsored a series of events highlighting the issue.

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The broader topic of “human trafficking” has justifiably been receiving increased attention lately from the media, law enforcement, and elected officials.  But in the public’s mind, the term tends to conjure up, specifically, victims of the sex trade.

The other side of human trafficking, involving forced labor that is not necessarily sex-related, typically ensnares immigrant workers – whether those who are here with tenuous legal status or those who were brought to this country on false promises of legitimate, above-board employment.

The BBA’s Labor & Employment Law Section and the Human Trafficking Committee of our Delivery of Legal Services Section co-hosted a conversation with four representatives from the U.S. Department of Labor’s Wage & Hour Division.  Carlos Matos, District Director of DOL’s Wage & Hour Division for the Boston District Office, led off with a review of the agency’s various responsibilities and its interaction with human trafficking.  DOL has broad jurisdiction to enforce labor laws and conducts its own civil investigations, frequently in conjunction with the local U.S. Attorney’s office, to uncover workplace violations.

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Matos expressed his concern over recent trends in the employer/employee relationship — in particular, what he termed “fissured industries,” where the use of franchises, third-party management, and contract labor can introduce layers of separation between employer and employee and fray that relationship, leading to an increase in complaints about minimum-wage and overtime payments.

DOL doesn’t directly enforce labor-trafficking laws, but they do encounter such violations in the course of their work.  Matos stated that they have been undertaking more strategic enforcement of late, pro-actively targeting priority industries, with a high rate of vulnerable workers and low wages – think, restaurants, construction, health care, and seafood processing.  They talk with employees and have multi-lingual investigators on staff for non-English-speakers.

Merle Hyman, a Wage & Hour Counsel at DOL, talked about a recent case in which a married couple brought a woman to the U.S. to work for them as a domestic employee, then proceeded to force her to put in 100-plus hours per week and barred her from leaving the house.  Five or six years into this unlawful arrangement, the woman finally confided to someone, DOL was ultimately notified, the matter was referred to the U.S. Attorney, and the couple agreed to pay all back wages to the worker, who received a T-visa that allowed her to stay here as the victim of serious human-trafficking violations.

The case illustrates a few key points about DOL’s efforts in this area:

  • The agency maintains close relationships with local community groups, to help them both learn about instances of abuse and arrange for social services to be provided to victims.
  • DOL doesn’t directly offer such services itself, but they do play a role in educating workers about their rights – which are often far more extensive than what immigrants enjoyed in their homelands.
  • It is critical for DOL to be able to build trust with trafficking victims, many of whom have been threatened that they would be “turned in” to authorities if they objected to their treatment. Community groups and consular officials can be tremendously helpful in preparing them for the intimidating task of telling their stories to DOL.
  • According to Patty Colarossi, Community Outreach and Resource Specialist for DOL, one role for the agency in these cases is to use their expertise to calculate, and testify to, the value of back wages owed to victims. This is part of the mandatory restitution, under trafficking laws, and must be calculated in all cases – even for otherwise-illegal activities such as prostitution.

Heather Burton, a Wage & Hour investigator, who works with victims and their counsel with respect to visa status, is often the first line of contact with exploited workers.  She is working on reducing a backlog of visa requests, which require certification that applicants were victims of one of eight specified criminal labor laws that DOL enforces – a prerequisite for a U-visa.  Both T- and U-visas grant work permission for four years and offer a pathway to full legal status, and this is an area where attorneys can help applicants.

So long as DOL has an active investigation open, the Department of Homeland Security may not remove a worker who’s involved with the case.  One complication, however, is that an employee implicated in the misconduct, by virtue of having collaborated with the employer, may apply for visa status by claiming instead to have merely been a victim.

Burton said she’s been seeing a rise in fraudulent foreign-labor contracting; workers arrive here only to find that the advertised job doesn’t exist, or is vastly different from what was described.  Another common theme in her work is witness tampering, with employees being sent home or hidden, to keep them from speaking with DOL investigators on-site.

On the whole, DOL is now more cognizant of trafficking crimes, with more trainings for staff and more standing task forces on the issue.  Investigators know the key questions to ask, so as not to miss instances of exploitation, and they are working cooperatively with other federal agencies, such as the Occupational Safety and Health Administration and the Equal Employment Opportunity Commission.

Although DOL does not work directly on trafficking cases, the panel asked that attorneys contact them straight away if they learn of any possible violations.  And any attorney interested in getting involved with prevention of human trafficking or protection of victims should contact Alec Zedek (Mintz Levin), who, along with Manleen Singh of Robins Kaplan co-chairs the BBA’s Human Trafficking Sub-Committee.

— Michael Avitzur
Government Relations Director
Boston Bar Association

Racing in the Right Direction: BBA President attends Homeless Court

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From left to right: Chief Probation Officer Matthew McDonough, BBA President Lisa Arrowood, Homeless Court Judge Kathleen Coffey, Clerk Magistrate Sean Murphy, and Court Officer Christopher Lembo

On February 18, BBA President Lisa Arrowood attended a session of Homeless Court, her third specialty court visit in the past few weeks.  Last month, President Arrowood attended a Drug Court graduation with Judge Serge Georges and a Veterans’ Treatment Court graduation with Judge Eleanor Sinnott.  Both offered moving examples of what individuals can accomplish when the courts work hand-in-hand with treatment providers to offer support and oversight.  Specialty courts are problem-solving court sessions which provide court-supervised probation and mandated treatment for mental health or substance abuse issues underlying criminal behavior.  Their goal is to reduce recidivism and increase the effectiveness of the court system by addressing root causes for criminal behaviors.

The original homeless court started in San Diego, California, in 1989, and similar models soon sprang up in major cities in Arizona, Louisiana, and Texas.  Massachusetts Homeless Court was established in 2011 as a partnership between the Boston Municipal Court’s West Roxbury division, Suffolk County District Attorney Dan Conley (represented at the session President Arrowood attended by former BBA Council member and Criminal Law Section Co-Chair Christina Miller), the Committee for Public Counsel Services (CPCS), and the Pine Street Inn.

The Inn is a nonprofit organization providing emergency shelter, permanent supportive housing, job training and placement, and street outreach to more than 1,600 homeless men and women.  The special court session occurs monthly on the third Thursday at 11:00 am and is designed to resolve misdemeanor offenses, non-violent felonies, and outstanding warrants for homeless individuals, with support and dignity.  A number of participants in the session we attended were enrolled in programs at the Inn.

By removing default warrants and dismissing criminal cases, Homeless Court breaks down many of the barriers that prevent homeless individuals from securing permanent housing, employment, education, drivers’ licenses, and other government benefits, helping them to move on with their lives.  It is presided over by Judge Kathleen Coffey —  Chief Justice of the West Roxbury District Court, and Director of Specialty Courts for the BMC – who sits at a simple table under an abstract painting in a nondescript room at the Pine Street Inn, alongside a chief probation officer and a clerk-magistrate.  Participation is open to any homeless individual who meets the following criteria:

  • The client must have an outstanding warrant (for a missed court date or violation of probation) in Massachusetts.
  • The case must be a misdemeanor or a non-violent felony.
  • The client must be homeless or at risk of homelessness.
  • The client must be receiving services or working with a case manager.

The Court operates as a progressive plea bargaining system characterized by alternative sentencing.  While in traditional criminal justice procedures, the court requires the defendant to promise to change his or her behaviors while on probation, in the Homeless Court context, the individual must have already completed a substance abuse program or be actively participating in mental health treatment and job training.  Through Homeless Court, individuals are given the opportunity to work with social workers and case managers in cooperation and collaboration with the prosecutors and defenders’ offices to overcome challenges with the oversight of a judge.  As of last summer, 101 individuals had successfully completed the Court requirements.

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Judge Kathleen Coffey seated next to Clerk Magistrate Sean Murphy

In Judge Coffey’s words, Homeless Court, “is based upon the premise that there is room for treatment, compassion and for recovery within the court system.  It recognizes that homelessness presents a complicated challenge to the courts demanding alternative approaches in the administration of justice. The court seeks to make the justice system more accessible, accountable and responsive to the needs and challenges faced by this most vulnerable population.”

Throughout the session, at which seven cases were considered, Judge Coffey often expressed sympathy for the complicated problems faced by the defendants.  Five defendants were present at the session, and two saw their cases dismissed.  Judge Coffey asked everyone to share their stories – how they became homeless, their reasons for taking part in homeless court, and what aspect of life on the streets was most challenging.  Defendants described the difficult, and varied, life circumstances that led to their hitting rock-bottom and their motivations for self-improvement, which included the knowledge that they could do better, the need to escape the isolation and constant turmoil of homelessness, and, in several instances, a strong desire to make their young children proud.  Judge Coffey encouraged positive progress, telling one defendant they were “racing in the right direction,” and District Attorney Christina Miller did the same, telling another defendant that she was “amazed and encouraged” by their progress.

Boston Bar Association President Lisa Arrowood said she was inspired not only by the profound impact this program and the other specialty courts are having on the lives of its graduates, but also on their potential to meaningfully tackle complex issues that lead individuals to commit crimes.

“It is the first time for many of these people that they are in court and something good is happening to them.  I looked around and thought that this is what they need – treatment, not incarceration,” Arrowood said.  “I believe specialty courts are highly valuable and I am grateful for having had the opportunity to see them operate firsthand.”

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Three Branches Working Together: The Latest on Section 35 Civil Commitments

On February 8, we were pleased to host a fascinating program, “Combating Drug Addiction: The Latest on Section 35 Civil Commitments.”  Hosted by the Criminal and Health Law Sections, the panel featured Chief Justice of the District Court, Paul Dawley, First Justice of the Lawrence District Court, Lynn Rooney, First Justice of the Quincy District Court, Mark Coven, Massachusetts Department of Mental Health psychologist, Dr. Stephen DeLisi, and general counsel to the Massachusetts District Courts, Joseph Ditkoff.  The program was moderated by two Criminal Law Section members and Trial Court attorneys, Georgia Critsley and Sarah Weyland Ellis.

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So-called “Section 35’s” are a form of civil commitment permitted under G.L. c. 123 §35 for individuals suffering from substance- or alcohol-abuse disorders.  With the ongoing opioid crisis, their usage has skyrocketed.  Whereas about five years ago the courts saw about 5,000 sections per year, today that number is at 10,000 and rising.

In simplest terms, “Sections” allow individuals, such as friends and family of a person allegedly suffering from severe addictions, to seek help from the court in order to force detoxification and treatment.  The concerned individual(s) can even request a warrant from the court to have police find and bring in the individual.  Once in court, it is up to the judge, with the help of a qualified physician, psychologist or social worker, to determine whether the individual is indeed suffering from an alcohol- or substance-abuse disorder and, if so, the level of threat they pose to themselves and others.

Recently enacted uniform court rules provide new clarity on how these procedures should operate.  In a Section 35 hearing, the rules of evidence do not apply – for example, hearsay evidence is admissible — and the judge may inquire of the petitioner as well as accept testimony or other evidence from the petitioner or any other person, including a court official.  Then the judge must “determine whether there is clear and convincing evidence that (1) the respondent is an alcoholic or a substance abuser, as defined in G.L. c. 123, § 35; and (2) there is a likelihood of serious harm, as defined in G.L. c. 123, § 1, as a result of the respondent’s alcoholism or substance abuse, to the respondent, the petitioner, or any other person.”  If the judge finds both of these prongs met, then the court may issue an order of commitment for up to 90 days in “a suitable facility approved by the department of public health for the care and treatment of alcoholism or substance abuse,” with fallbacks to correctional institutions if there are no beds available at these institutions.

As Chief Justice Dawley explained, this is an extremely important time for the Section 35 process, as the Executive, Judiciary, and Legislature have all been working together to clarify and improve these hearings.  Over the summer, the SJC issued an opinion in, In the Matter of G.P., using a footnote to expound on some of the key recent uniform court rules.  Specifically, the footnote confirmed that the standard of evidence for Section 35 hearings is “clear and convincing,” that the rules of evidence do not apply and hearsay is admissible, and that any appeal is to the District Court’s appellate division.  The case also discusses the meaning of a “substantial risk” of “imminent” harm, noting that it does not necessarily mean immediate harm, but rather that “the harm will materialize in the reasonably short term – in days or weeks rather than in months.”

The executive branch made a commitment to expand treatment options, unveiling a new drug treatment unit for women at Taunton State Hospital called the Women’s Recovery from Addictions Program (WRAP).  This move corresponds with a newly-enacted law, H3956, which ends the practice of women being civilly committed under Section 35 to MCI-Framingham, a correctional institution that provided only detoxification without addiction treatment and incarcerated addicts alongside convicted criminals.  As Chief Justice Dawley stressed, 18 months ago the courts had little guidance on civil commitment procedures, and now there are new rules, new legislation, more treatment options, and an explanatory SJC decision.

However, there is still much to be done.  The courts are continuing to work on implementing the new rules and have ongoing communication with the executive and legislative branches.  There are also still plenty of challenges.  For example, the new uniform court rules remove the ability of individuals to self-petition, leaving the courts in a tight spot.  Judge Rooney said she typically sees at least one self-petitioning individual per day and her court has been directing these people to the Probation Department, hoping that the probation officer on duty will fill out the Section 35 petition for the at-risk individual.  While this often works, she noted that it is an increasing burden on Probation and other courts may not have the luxury of a probation officer readily available for this purpose.  She hopes to see a process put in place for these people.

Furthermore, based on anecdotes from the judges and attendees, it was clear that practices across all courts have not been standardized.  While complete uniformity may not be possible or practical, there seems to be a push for closer coordination across the state.  The new uniform rules should help provide that, but it will take time for the courts to work out all the kinks.

In sum, the program did a great job of helping to explain where things stand with Section 35 civil commitments.  While it is clear that there has been great progress recently, and even more in the works, there is also still a long way to go in honing the effectiveness of these proceedings.  We look forward to seeing what else the three branches of state government can accomplish towards easing the opioid crisis.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Focus on Reducing Recidivism

We’ve spoken at length in this space about the BBA’s opposition to mandatory-minimum sentencing, which limits judicial discretion, applies one-size-fits-all solutions regardless of the facts and circumstances of each case, and contributed heavily to the explosive growth in prison and jail populations across the nation (with Massachusetts no exception) in the last decades of the 20th century.

Support has grown for reform of mandatory sentencing practices as the toll they have taken on individuals and their families, and the costs they impose on state budgets, have become clearer.  But the public debate on criminal-justice policies has broadened, to include a variety of other issues, such as: reform of the bail process, to make it more reflective of the true risk posed by a defendant and less disproportionately punitive toward the poor; use of evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; and ways to reduce recidivism and promote successful re-entry of the 90-plus% of those currently incarcerated who will ultimately return to society after incarceration.

There has been much movement in recent weeks on this last point.  In January, two different groups dedicated to in-depth analysis of criminal-justice data in Massachusetts publicly presented their findings.  And this past Saturday, at our annual John and Abigail Adams Benefit, the Boston Bar Foundation bestowed its 2016 Public Service Award upon Roca, a community-based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society.  Read more about Roca here.

Founded in 1988 by CEO Molly Baldwin, who accepted the award for Roca during the event at the Museum of Fine Arts, Roca focuses on those youths, overwhelmingly men, who are at greatest risk of recidivism – gang members, school drop-outs, young parents.  Their outcomes-driven approach combines relentless outreach with data-driven evaluation, starting with the question, “Are we helping young people change behaviors to improve their lives — and how do we know?”  Roca recognizes that criminal involvement and poverty are intertwined, and they seek to disrupt that cycle, with the motto, “Less jail, more future.”

In 2014, Roca partnered with the state and outside investors to undertake the Massachusetts Juvenile Justice Pay for Success Project, one of the nation’s first projects involving “social impact bonds,” which deliver private funds to non-governmental organizations on the promise that their work, and their expertise, can help save money in the end.  Essentially, if Roca is able to reduce recidivism and improve job skills for its target group of ex-offenders, the state will reward investors out of its criminal-justice savings.  If they are unable to do so, the investors will take the loss.  The project is set to run through 2020, but either way, Roca and the state government will gain valuable data on what works and what doesn’t, and Roca is using the funds to help grow its operation, which began in Chelsea, but has since expanded to other communities within Greater Boston, and to Springfield.

While Roca has been working with young people at the ground level, researchers at the public-policy think tank MassInc have been studying what the statewide data show about our re-entry practices in Massachusetts, with an eye toward how a better strategy can improve outcomes.  Last week, they held an event to announce the release of their latest report on criminal justice, Reducing Recidivism in Massachusetts with a Comprehensive Reentry Strategy, and to discuss its findings.

One of the report’s key takeaways is that our re-entry supervision resources are being distributed inefficiently: For example, ten percent of inmates are released to “dual supervision,” meaning they are redundantly required to report to both the Department of Probation (based on a sentence that included probation time after incarceration) and the Parole Board (for those who were released under their auspices).  These agencies operate independently, within two different branches of government (Parole under the executive and Probation under the judiciary).

Furthermore, the MassInc researchers classified released individuals by their assessed risk – low, medium, and high – and found, perversely, that the high-risk inmates were actually the most likely to be returned to the street with no supervision at all.  One factor is that in about half of the instances where a mandatory minimum applies, the judge imposes an “and a day” sentence, in which the maximum sentence is one day longer than the minimum.  As a result, the defendant effectively has no option of parole.

Bruce Western, Professor of Sociology at the Kennedy School of Government, then offered findings from his own research on the critical factors that deter recidivism.  Prof. Western categorizes them by age upon release, and looks at whether ex-offenders have mental-health or substance-abuse problems, whether they have employment, stable housing, or family support, and whether they participate in social programs.  One of his main conclusions is that families – and, in particular, older female relatives – should be supported as part of a typical re-entry plan, because they can have a very positive effect on outcomes.  Another focus should be older men – who are less likely to have such relatives in their lives and thus more likely to be socially isolated – especially those experiencing poverty, mental illness, or addiction.

The forum ended with a panel discussion that included Berkshire County DA David Cape less, MassINC Research Director Ben Forman, the BBA’s Civil Rights & Civil Liberties co-chair Rahsaan Hall of the ACLU of Massachusetts, representatives from Connecticut and Texas – two states that have recently reformed their criminal-justice policies – and Conan Harris, the Deputy Director of the Mayor’s Office of Public Safety Initiatives for the City of Boston, and himself an ex-offender.

While there appears to be growing momentum toward an overall re-evaluation of our own policies in Massachusetts, any major reform is likely to have to wait until 2017.  That’s because the Justice Center of the Council of State Governments plans to spend this year collecting and analyzing data and developing policy options, at the joint request of Governor Charlie Baker, Senate President Stanley Rosenberg, House Speaker Robert DeLeo, and SJC Chief Justice Ralph Gants.

Last month, their Massachusetts team gave dual presentations on their initial findings, to the full working group tasked with guiding their effort, and to the state’s standing commission on criminal justice, which includes Marty Murphy of Foley Hoag as the BBA’s representative.

Thus far, 23 other states have benefited from the Justice Center’s data-driven review process.  But each state presents a different picture, and the Center is careful to tailor their proposed recommendations to each state’s data and practices.   Their justice-reinvestment process seeks to identify areas where evidence-based solutions can yield cost savings, which can then be shifted toward programs that have proven their effectiveness at reducing recidivism while protecting public safety.

Though the Center’s Massachusetts work is still in its early work, their analysis has already produced some interesting findings.  For example, while the total incarcerated population is down 12% since 2006, all of that decrease has come from county houses of correction and jails; the number of sentenced inmates in state prisons has actually grown by 3% over that time.  And even at the county level, there is wide variation in population changes.  Meanwhile, they did detect a decrease at the state level over the past three years, but it’s too soon to tell whether this represents a true downward trend.

When the Center looked into recidivism, they noted that data are held by a great number of different agencies, and that, for the most part, those data are not made public.  The long-term trend shows recidivism rates holding steady, at about 40%, but the numbers from the past two years are lower; again, they could not say with any confidence that this will continue.

When it comes to supervision, the third area they’re looking at, the numbers show that while the number of parolees is down sharply in recent years, the population under probation supervision is on the rise.

The Center plans to continue its work on these and other findings and will report back to the working group throughout the year, with the goal of producing legislation that can be filed by the beginning of the 2017-18 legislative session.  We will, of course, continue to monitor all developments in this area, and report back to you here.

— Michael Avitzur
Government Relations Director
Boston Bar Association