Monthly Archives: June 2017

Criminal-Justice Reform Inches Forward

Whether or not you’ve been following Beacon Hill developments on criminal-justice reform as closely as we have, if it seems like that debate has been going on for a couple of years now, that’s because it’s been about that long since the state’s top leadership kicked off the review process by formally inviting outside experts to undertake an assessment of our criminal-justice system.  This month, legislation that emerged from that effort—along with more than 150 other bills on criminal procedure, sentencing, prison programs, and related issues—passed the first hurdle in the legislative process, with two heavily-attended public hearings of the Legislature’s Judiciary Committee.

To recap: In July 2015, Governor Charlie Baker, SJC Chief Justice Ralph Gants, Senate President Stanley Rosenberg, and House Speaker Robert DeLeo jointly penned a letter asking for technical assistance from the Council of State Governments’ (CSG’s) Justice Center—which had already provided such help to more than a dozen other states—in using “a data-driven approach to continue to improve criminal justice outcomes”.  The request was greeted with wide acclaim from stakeholders in the system and outside advocates, who saw it as an opportunity to address long-standing inefficiencies and inequities, and to provide a framework for substantial reforms in a variety of areas that have been discussed at the State House for years—but acted on only fitfully and incrementally.  The seeds of future discontent were planted, however, by the letter’s focus on recidivism, re-entry, early release, and post-release supervision—the so-called “back end” of the system, with no mention of such “front-end” ideas as diversion, bail reform, and sentencing reductions.

Fast-forward to this past February, when the CSG group—consisting of a team of national experts alongside a star-studded panel of leaders from throughout the Massachusetts system—released its final report after 18 months of hard work.  As with the initial invitation, the report’s recommendations, which had achieved unanimous internal consensus, met with near-universal approval once made public, and a bill was filed to implement those that required legislative endorsement.  Still, some observers expressed frustration with the bill’s limited scope, pointing out missed opportunities and calling for lawmakers to expand on it when they take up the issue during the current two-year legislative session.

The first real chance to speak directly to legislators on these issues—well, the first two chances, I guess—came on June 5 and again June 19, when the Judiciary Committee, which oversees criminal-justice legislation (among many other areas), held hearings to take testimony on those bills in particular.

The BBA was there both days, along with hundreds of other interested parties, as witnesses spoke on a wide variety of proposals, including limits on how criminal-justice fees and fines are imposed on the indigent, efforts to make the bail system more evidence-based, and steps to reduce the debilitating effects of the web of collateral consequences facing ex-offenders upon re-entry to society.  (For its part, Commonwealth Magazine has been providing strong coverage of the on-going debate, including both hearings—while also weighing in itself from time to time through its MassINC research arm.)

At the June 19 hearing, Marty Murphy of Foley Hoag—BBA Secretary and an experienced criminal lawyer—testified on our behalf, focusing on mandatory minimums, which the BBA has opposed for decades in all cases except first-degree murder.  With the Committee imposing a three-minute limit on oral testimony, in order to allow everyone present an opportunity to be heard, Murphy used his time to make four key points to the panel:

  1. Mandatory minimum sentences fail every test by which we should measure the strength of our justice system: In place of proportionality—a system where the punishment fits the crime—they offer one-size-fits-all justice.  They frequently require incarceration for longer than the judge believes is either necessary or just, as demonstrated by the prevalence of “and a day” sentencing.  These overly-long sentences, in turn, delay the possibility of re-integration, restrict access to the very programs shown to help make that process a success, and often turn prisoners back to the street without support, supervision, or help to find employment or housing.
  2. Mandatory sentencing statutes effectively turn over the reins of the criminal justice system to prosecutors and strip judges of their power to impose the kind of individualized sentences that would in fact make the punishment fit the crime. Mandatory sentences are mandatory only when prosecutors want them to be; in practice, prosecutors often use them as bargaining chips in the plea bargaining process. When prosecutors use the threat of mandatory sentences to drive the plea-bargaining process, there is no transparency and no accountability. Instead, the result is justice produced behind closed doors, with the prosecutor choosing both charge and sentence.
  3. The evidence shows that mandatory minimum sentences help drive one of the most deeply disturbing aspects of our state’s criminal justice system: the problem of racial disparity. Massachusetts may have one of the lowest incarceration rates in the nation; but our criminal justice system’s record on race is nothing to be proud of.  Massachusetts rates of racial and ethnic disparity are among the highest in the United States.  For African-Americans the rate of disparity (that is, incarcerations rates of black compared to white residents) was the 13th highest in the country. For Latinos, Massachusetts ranked first.  Mandatory minimum sentences help drive that rate of disparity: Three out of every four defendants sentenced to mandatory minimum sentences are defendants of color.  As recent studies have confirmed, and as our own experiences teach, these sentences tear lasting holes in defendants’ families, and in entire communities.
  4. There is no time better than the present to address this issue. Massachusetts reduced mandatory minimums in both 2010 and 2012 without the kind of harm to public safety opponents of reform predicted. Since then, we have watched crime rates continue their historic decline. There is certainly much to praise in the CSG’s framework, and in the CSG bill.  The BBA thanks all of those who devoted so much of their time, over so many months, to producing a strong outcome.  But it is our hope that the best and longest-lasting legacy of the CSG process will be the foundation it lays on which to build additional criminal-justice reforms, continuing the work begun in 2010.

As Murphy’s prepared remarks go on to say:

Massachusetts taxpayers deserve to see their money spent wisely.  No one disputes that certain offenders deserve to be incarcerated—sometimes for a long time.  But the length of that sentence should be determined by a well-qualified judge, ruling on the unique facts and circumstances of the case, and the individual defendant’s history and background—not by the cold calculus of arbitrary justice, which is all that mandatory minimums can ever offer.

These hearings were the Legislature’s first official step toward criminal-justice reform in this 2017-18 session.  Much remains unclear at the moment: When will the Judiciary Committee report out legislation?  What form will it take?  Might they, as some have urged, report the CSG bill out first and leave the harder work of fashioning further reforms until later?  Which house will debate these issues first?  And ultimately, how far will the Legislature go in expanding on the narrow scope of the CSG recommendations?

As it happens, Murphy and former BBA President Kathy Weinman, of Collora LLP, are heading up a BBA working group that is currently exploring potential avenues for reform that were left untouched by the CSG report, but where the BBA can recommend improvements to current law and practice.  We expect the group to make those recommendations to the BBA Council soon—and that they will help shape the criminal-justice debate as it develops in the State House.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

In the fall of 2015, the BBA Council voted to support legislation that would ban licensed health care professionals from engaging in efforts to change sexual orientation and gender identity, often called conversion or reparative therapy. The BBA has a long history of defending principles of non-discrimination and equal protection, and as an organization of attorneys, we recognize that young people should enjoy the fundamental human right to be free from harmful and ineffective “treatments” intended to change their sexual orientation or gender identity.

As such, we are proud to be able to continue our advocacy on the ban by supporting H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny, two identical bills that would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. This week we had the opportunity to present testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities.

Why we support H.1190 and S.62

As we’ve outlined in the past, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. The American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization, among many others, have all issued policy statements condemning the practice. These statements make clear that conversion therapy is unnecessary as it attempts to “cure” something that is not an illness or disorder, is ineffective in bringing about the “change” sought, and poses a high risk of seriously harming patients, especially minors.

The use of conversion therapy typically occurs within the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will typically be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes. These youth experience significantly higher rates of depression, substance use, suicide attempts, as well as homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

The American Bar Association, in its Resolution 112, has also urged that “governments… enact laws that prohibit state-licensed professionals from using conversion therapy on minors,” based on the recognition that LGBTQ people should enjoy the basic right “to be free from attempts to change their sexual orientation or gender identity.” To date, nine states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the tenth state to enact these protections.

Legislative Hearing

At a hearing on June 6, many proponents of the bill, including psychiatrists, pediatricians, social workers, survivors of conversion therapy, LGBTQ-rights advocates, and legislators showed up to support the conversion therapy ban for minors. Following testimony from these supporters, opponents of the ban expressed concern that the bills would restrict legitimate therapies and infringe on First Amendment rights of free speech and free exercise of religion.

The testimony from supporters lasted for more than two hours and included deeply personal stories presented by those who had survived the use of conversion therapy methods like physical aversion and electroshock therapy. The harms that result from the use of these and other practices aimed at changing one’s sexual orientation and gender identity were addressed by a number of the witnesses, including a clinical child psychologist, representatives from the Boston Children’s Hospital, and pediatricians from the Massachusetts Chapter of the American Academy of Pediatricians. Witnesses from MassEquality, PFLAG, the Children’s League of Massachusetts, and the Massachusetts Teachers Association presented further reasons why passage of these bills is necessary to protect the youth of the Commonwealth. In addition, a panel made up of 12 representatives presented on the need for the legislation and the broad support these bills have in the Legislature. Ninety legislators have signed on to H.1190 and twenty-eight have signed on to S.62 this session.

We were lucky enough to be joined by Elizabeth Roberts of Roberts & Sauer, a member of the Family Law Section Steering Committee, who presented testimony on behalf of the BBA alongside Ben Klein a Senior Attorney  with the GLBTQ Legal Advocates and Defenders (GLAD).

 

Elizabeth Roberts presents testimony in support of H.1190 and S.62 before the Joint Committee on Children, Families, and Persons with Disabilities.

While deferring to the many experts and survivors to explain the psychosocial harms that result from the use of conversion therapy on minors, Roberts and Klein spoke on the legal aspects of the legislation. First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power.

For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, just last month, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, as both Roberts and Klein told the Committee, the existing case law makes it clear that the bills, like H.1190 and S.62, are valid exercises of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. As noted above, the BBA recognizes the  fundamental human right to be free from abusive practices meant to change one’s identity or expression of that identity and will continue to advocate for these bills to protect this right for minors in the Commonwealth.

We appreciated the opportunity to share support of the bills with the Committee and will keep you posted on the status of this important legislation.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

Budget Update: Senate Approves FY18 Budget

From the release of the Governor’s proposed budget to the House Ways and Means and final budgets and our advocacy in between, we’ve been keeping you posted as the Commonwealth moves closer to a final Fiscal Year 2018 (FY18) budget.  This time, our attention turns to the Senate, which has been busy with its own budget process over the past few weeks. First, the Senate Ways and Means Committee released their version of the budget, then amendments were filed and debates took place, and finally, last Thursday, the Senate approved its $40.4 billion budget. Now, it’s on to the Conference Committee to reconcile the differences between the House and Senate budget, and, once this version is approved by both chambers, it will be on to the Governor to review and either sign as is, sign with line-item vetoes and proposed amendments, or veto.

Two BBA budget priorities were the focus of some debate during this process:

Massachusetts Legal Assistance Corporation (MLAC)

If you’ll recall, MLAC, the largest funder of civil legal aid in the Commonwealth, initially requested a $5 million increase to a $23 million appropriation in the FY2018 budget. The Governor’s budget allocated for a 1% increase, or $18,180,000. The House Ways and Means Committee proposal appropriated $1.5 million, which, with the help of an amendment filed by Representative Ruth Balser and approved unanimously, grew to $20 million in the final House budget.

Initial news coming out of the Senate budget process was not quite as positive, however, as the Senate Ways and Means Committee proposal only provided for an $18 million appropriation for the MLAC line-item (0321-1600).  Thankfully, civil legal aid has a great number of strong supporters in the Senate, and Senators Cynthia Creem and William Brownsberger filed Amendment #896, asking for a $2 million increase to the  MLAC appropriation.

Thanks to all of you who reached out to your Senators urging them to support  civil legal aid and sign on to this Amendment! In the end, Senators Barrett, Chang-Diaz, Rush, Eldridge, Cyr, Moore, L’Italien, McGee, Lewis, Welch, Gobi, Lesser, Brady, Flanagan, Lovely, and Boncore signed on as co-sponsors of the $20 million MLAC appropriation.

During the debate, Senator Creem explained why funding for civil legal aid matters. She pointed to the much needed assistance it provides to some of the Commonwealth’s most vulnerable individuals and communities, including those who facing domestic violence, eviction, deportation, inadequate health care, wage theft, and discrimination. She also noted that nearly two-thirds of eligible residents are now turned away and that every dollar invested saves the state between $2 and $5. Be sure to check out the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts Investing in Justice Report for full details on how civil legal aid helps and why it’s a smart investment, including the full econometric basis for the return-on-investment figures that Senator Creem cited. Senator Brownsberger concluded the debate by stating that, given what is happening at the federal level, with the White House proposing to eliminate federal funding for civil legal aid, state funding is needed now more than ever.

We are happy to report that, thanks to your outreach and the strong support from the full Senate, the Amendment was adopted unanimously and the final MLAC line-item came in at $20 million, matching the House budget!

Statewide Expansion of the Housing Court

As you know, the statewide expansion of the Housing Court, with all its accompanying benefits,  started off the budget process with a $1 million appropriation in the Governor’s budget, slightly below the Trial Court’s requested $1.2 million. Unfortunately, however, the House budget did not allocate any funds for this expansion, nor did it include language authorizing the expansion.

We are pleased to report that the Senate Ways and Means budget brought back the $1 million appropriation for the statewide expansion of the Housing Court line-item item (0336-0003). However, this line-item was up for debate as Senator Bruce Tarr filed Amendment #897, to zero out the Housing Court expansion appropriation. During the debate, Senator Tarr began by noting that he believes in the Housing Court and thinks it is a cost-effective resolution but was merely concerned about balancing the budget.

In response, Senator Karen Spilka, Chair of the Senate Ways and Means Committee, noted that her district, along with one-third of the state’s population overall, does not have access to Housing court, which specializes in complex housing issues, enforces codes, protects people from homelessness,  and addresses mortgage fraud among other important matters.  She further provided that Housing Court is both effective and efficient, as it has the lowest cost per case of the whole Trial Court and houses programs like the Tenancy Preservation Program, which saves the State millions of dollars each year by reducing the prevalence of expensive emergency shelter stays. Senator Tarr ultimately accepted this justification and withdrew his amendment.

Facing no other objections, the statewide expansion of the Housing Court ended up with a $1 million appropriation in the Senate budget!  Now the Conference Committee will have to consider whether to adopt the Senate’s version.

As the budget moves on to the Conference Committee, we’ll keep you posted about these items and any changes in our other priority areas, including the Trial Court and the Committee for Public Counsel Services (CPCS), which remained relatively level through the Senate process.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association