Monthly Archives: July 2016

Juvenile Justice Through Diversion

A couple of weeks ago, we were pleased to report on our Juvenile Restorative Justice Symposium, a half-day program focused on restorative justice approaches for young offenders.  Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment. Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator.

Today, we are excited to report on our latest program, a July 19 forum on diversion and evidence-based approaches to juvenile justice, hosted by the BBA’s Civil Rights and Civil Liberties Section along with Citizens for Juvenile Justice.  Diverting juveniles is the practice of referring them to various programs that hold them accountable without having the go through the traditional justice system.  The restorative justice approach explained in our prior post is one example of a diversion approach.  The goal is to hold youths accountable without creating a criminal record.

This is especially important in Massachusetts, which does not permit record expungement.  The day before our program, the Boston Globe posted an informative article on this very issue, explaining the challenges individuals with juvenile records can face for many years after their cases are resolved in the justice system.  On July 12, the Senate supported a bill (S2424) by a vote of 31-9 that would, among other reforms, permit expungement of misdemeanor offenses from juvenile records.

Regardless of whether the bill is enacted, the take-away from our forum was clear – diversion, when executed correctly, can be more effective at achieving justice, promoting rehabilitation, and reducing recidivism than traditional justice systems.  The fact that it avoids creation of a record that can hinder a young people for the rest of their lives is only an added benefit.

DSC_0083 croppedSana Fadel Delivers Opening Remarks

Massachusetts is making progress on diversion, but the presenters made clear that there is still a long way to go.  At this point, Sana Fadel, Deputy Director of Citizens for Juvenile Justice, who’s Executive Director Naoka Carey provided closing remarks, explained that diversion programs are established ad hoc and vary by county.  As a result, we have instances of “justice by geography,” in the words of First Justice of the Middlesex Juvenile Court, Jay Blitzman, whereby geography plays a disproportionate role in determining juvenile justice outcomes (check out his July 20 editorial on juvenile record expungement from Commonwealth Magazine).  This also hinders the collection of clear data on effectiveness and outcomes.  Yet while uniformity is still a goal, Fadel reported that things seem to be moving in the right direction, in large part thanks to support from the District Attorneys who have implemented diversion programs in 10 of 11 jurisdictions.

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Judge Blitzman

One of the key points made by multiple panelists was the need for individualized and graduated responses in diversion.  While diversion done well has repeatedly resulted in positive outcomes, diversion done poorly can have the opposite effect.  The key is to require the appropriate level of engagement for the youthful offender.  Too little and the point doesn’t get across, too much and the diversion program can stifle a youth’s positive connections outside the justice system and build resistance and resentment.  However, with the proper amount of diversion programming, youths exhibit a remarkable tendency to learn from their mistakes, make victims whole again, and avoid future criminal behavior.

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Panelists (left to right): Kara Hayes, Vincent Schiraldi, and Judge Blitzman

Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School’s Program in Criminal Justice, spoke about how he worked to increase diversion as New York City’s commissioner of probation.  Through collaboration with the probation department, schools, courts, police, and even big box stores, the leaders of which he convinced to not prosecute all juvenile shoplifters, he was able to divert 41% of juvenile cases, an increase of more than 15%.  A large part of his success appeared to be driven by his tireless efforts toward bringing the community together to embrace diversion as a reasonable justice system alternative and also by tracking and regularly reporting data demonstrating the effectiveness of his work.

Massachusetts is still far from these levels of diversion, but panelists made clear that it is increasingly being accepted as a reasonable alternative to traditional justice.  Kara Hayes, Chief of Community Engagement at the Suffolk County District Attorney’s Office, reported that 25% of juveniles in Suffolk County are currently diverted before being arraigned.  This seems to place us in a similar position as New York City prior to Vincent’s arrival, and the stars appear to be aligning for further increases.  As Kara explained, diversion programs are also beneficial to victims, who often gain more satisfaction and closure than through the justice system, which can be impersonal and leave them feeling cast aside.  As a result, the Suffolk County District Attorney’s office is starting a pilot diversion program in the county that it hopes to have up and running by the start of the school year.  The pilot will include a dedicated program coordinator whose goal is to continue the thoughtful and strategic expansion of diversion to best fulfill the needs of the community.

We are devoted to continuing to provide thought provoking and timely programs and discussions on these sorts of developing areas of justice.  We hope program attendees left feeling informed and empowered to make an impact and we look forward to keeping you apprised of the latest developments in juvenile justice practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Celebrating Enactment of the Transgender Rights Bill

We’re thrilled that last Friday Governor Charlie Baker signed the Transgender Rights Bill (S2407) into law.  Massachusetts joins 17 other states and the District of Columbia, along with more than 200 cities and counties, explicitly prohibiting discrimination based on gender identity.  Here is a brief breakdown of the various provisions of the bill:

  • Section 1 prohibits public accommodation discrimination for gender identity.
  • Section 2 requires proprietors of public accommodations segregated by sex to provide the accommodation consistent with individuals’ gender identity.
  • Section 3 adds gender identity to the list of actionable public accommodation transgressions, making discrimination punishable by a fine of up to $2,500 and/or imprisonment up to 1 year and potentially liable for additional damages for the victim.
  • Section 4 calls on the Massachusetts Commission Against Discrimination (MCAD) and the Attorney General’s Office to make rules and regulations by September 1, 2016, that effectuate the purposes of the act, including defining when and how gender identity may be evidenced and guidance for legal action against any person who asserts gender identity for an improper purpose.

The new law will be phased in, with Sections 1 and 4 taking effect immediately and Sections 2 and 3 taking effect on October 1, 2016.

This compromise version of the bill emerged from a legislative conference committee on July 6.  The committee was chaired by the Judiciary Committee Co-Chairs, Senator William Brownsberger and Representative John Fernandes, and included Senators Sonia Chang-Diaz and Bruce Tarr and Representatives Sarah Peake and Sheila Harrington.  They were tasked with amalgamating the House (H4343) and Senate (S735) versions of the bill, which had different effective dates (Senate: immediately, House: January 1, 2017).  Furthermore, the House version included language similar to the current Section 4, requiring the MCAD and Attorney General to consider rules for enforcement and misuse, that was not in the Senate version.  The Senate passed its version by a vote of 33-4 on May 12.  The House passed its version, 116-36, on June 1.

The law was passed despite some opposition centered on the use of bathrooms, which had previously had an impact in 2011, when public accommodations protections were removed from a broad transgender-rights bill before it passed that year.  The BBA supported that law (read our testimony here), which was enacted without the public-accommodations piece, taking effect on July 1, 2012.

Even without public accommodation protections, that bill took important steps forward, giving transgender people clear legal recourse if they face discrimination at work, in public housing, education, or when applying for credit.  At the time, Massachusetts became the 16th state to add gender identity to its non-discrimination laws in these areas.  It also added gender identity to the Massachusetts hate crime statutes.

We weighed in shortly afterwards, holding a number of programs on the impacts of the new law and publishing an article in the Boston Bar Journal highlighting ways lawyers could try to combat public accommodation discrimination for transgender victims, even without explicit legal protection.  We are pleased that, finally, lawyers representing transgender discrimination victims will no longer have to face the challenges and uncertainty highlighted in that article.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association